Australian migration matters can progress to the federal courts where a visa applicant or visa holder believes that an immigration decision may have been affected by a jurisdictional or other reviewable legal error.
An important distinction should be made at the outset: most first-instance migration judicial review proceedings are commenced in the Federal Circuit and Family Court of Australia (Division 2), rather than the Federal Court of Australia. The Federal Court generally hears appeals from decisions of the Federal Circuit and Family Court and also has original jurisdiction in certain migration matters, including some character-related decisions.
At Melton Migration, we assist clients with the migration aspects of matters progressing towards judicial review, including reviewing immigration histories, identifying issues requiring specialist legal assessment, preparing migration records and evidence, managing related Bridging visa issues, and coordinating with Australian solicitors and barristers where court representation is required.
1. What Is Judicial Review?
Judicial review is fundamentally different from merits review before the Administrative Review Tribunal (ART).
The ART considers the merits of an eligible migration decision. A court, by contrast, considers whether the decision was made according to law.
The Federal Circuit and Family Court explains that it may review certain migration decisions to determine whether a jurisdictional error occurred. It does not reconsider whether the applicant deserves a visa and cannot simply substitute its preferred immigration outcome.
The question before the Court is therefore generally not:
“Should this person have been granted a visa?”
Instead, the question is:
“Was the decision affected by a jurisdictional or other reviewable legal error?”
2. What Is a Jurisdictional Error?
A jurisdictional error may arise where an administrative decision-maker has exceeded, misunderstood or failed to properly exercise the authority given to them by law.
Depending on the circumstances, potential errors may involve a decision-maker:
- applying the wrong legal test;
- asking the wrong legal question;
- failing to consider a legally required matter;
- relying on an irrelevant consideration;
- misunderstanding or incorrectly applying the legislation;
- failing to provide procedural fairness;
- failing to consider a substantial or clearly articulated claim;
- making a finding without an adequate legal or evidentiary foundation;
- acting beyond the limits of statutory power; or
- reaching a decision that is legally unreasonable.
The Federal Court identifies these types of errors as examples potentially capable of constituting jurisdictional error.
Not every factual mistake, disagreement with the Tribunal’s reasoning or unfavourable finding constitutes jurisdictional error.
3. Judicial Review Is Not Another ART Hearing
This distinction is critical.
At the ART, the applicant may seek a different merits outcome and, depending on the applicable legislation, present relevant evidence concerning whether the visa criteria are satisfied.
In judicial review proceedings, the Court generally does not:
- reconsider the merits of the visa application;
- decide whether the applicant is a genuine applicant;
- simply reassess credibility;
- substitute its preferred factual findings;
- grant a visa because the applicant’s circumstances are sympathetic; or
- consider new evidence merely to establish that the visa should have been granted.
The Court’s role is to determine whether the administrative decision was lawfully made.
4. Decisions That May Be Subject to Judicial Review
Depending on jurisdiction and the particular statutory framework, judicial review may potentially concern decisions made by:
- the Administrative Review Tribunal;
- the Minister;
- a delegate of the Minister;
- the Department of Home Affairs; or
- another migration decision-maker.
Most first-instance migration judicial review proceedings are dealt with by the Federal Circuit and Family Court of Australia (Division 2). Certain matters may fall within the Federal Court’s original jurisdiction.
The correct court must therefore be identified before proceedings are commenced.
5. Federal Circuit and Family Court – First Instance Review
For many migration applicants, the Federal Circuit and Family Court of Australia (Division 2) is the first court in which judicial review is sought.
This can arise following an unsuccessful ART decision.
The Court examines whether the relevant administrative decision involved jurisdictional error.
If jurisdictional error is established, the Court may make orders that effectively set aside the legally defective decision and require the matter to be determined again according to law. The Court does not itself grant the visa.
6. Federal Court of Australia
The Federal Court of Australia plays two particularly important roles in migration litigation.
First, it generally hears appeals from final decisions of the Federal Circuit and Family Court.
Second, it has original jurisdiction in certain migration matters under the Migration Act, including some decisions involving character and decisions made personally by the Minister.
The appropriate jurisdiction depends on the decision being challenged and the relevant provisions of the Migration Act.
7. Appeals to the Federal Court
If the Federal Circuit and Family Court dismisses a judicial review application, an appeal to the Federal Court may potentially be available.
An appeal is not simply an opportunity to repeat the original migration arguments.
The appellant generally needs to establish that the primary judge made an appealable error.
This requires careful analysis of:
- the original administrative decision;
- grounds of judicial review;
- submissions made before the primary judge;
- reasons for judgment;
- legal principles applied by the judge; and
- proposed grounds of appeal.
8. Strict Court Deadlines
Migration court proceedings are subject to strict procedural time limits.
The Federal Court currently states that an application in its original jurisdiction to review a migration decision generally must be made within 35 days of the migration decision, subject to the Court’s power to consider an extension-of-time application.
An appeal from a final decision of the Federal Circuit and Family Court generally must be filed within 28 days of the decision, while applications for leave to appeal certain interlocutory decisions generally have a 14-day timeframe.
The applicable deadline must always be confirmed for the particular matter.
Court proceedings should therefore be assessed immediately after an adverse decision.
9. Extension of Time
Where a judicial review application or appeal has not been filed within the applicable period, it may be possible in some circumstances to seek an extension of time.
However, an extension should never be assumed.
For example, the Federal Court’s guidance states that an extension application for an out-of-time migration judicial review matter must be accompanied by the proposed originating application and an affidavit explaining the facts relied upon and why the application was not filed within time.
Delay should therefore be addressed promptly and supported by proper evidence.
10. Common Migration Judicial Review Issues
Potential judicial review issues may arise in matters involving:
- Protection visa refusals;
- Partner visa decisions;
- Student visa decisions;
- Visitor visa matters;
- skilled migration;
- employer-sponsored visas;
- visa cancellation;
- section 501 character decisions;
- section 501CA revocation decisions;
- procedural fairness;
- interpretation of visa criteria;
- failure to consider relevant claims;
- legally unreasonable decision-making; and
- other jurisdictional issues.
Whether an arguable legal error actually exists requires specialist legal analysis.
11. Protection Visa Judicial Review
Protection visa cases constitute a significant area of migration judicial review.
Potential legal issues may concern whether the decision-maker:
- properly considered the applicant’s protection claims;
- applied the correct refugee test;
- properly considered complementary protection;
- considered relevant country information;
- failed to consider a substantial claim;
- denied procedural fairness;
- applied an incorrect legal test; or
- reached a legally unreasonable conclusion.
Recent published migration judgments continue to demonstrate that courts distinguish carefully between an alleged legal error and a mere disagreement with factual or credibility findings.
12. Character Matters
Some character matters have a different jurisdictional pathway.
The Federal Court has original jurisdiction in relation to certain migration decisions, including some decisions to refuse or cancel visas on character grounds and certain decisions made personally by the Minister.
These cases can involve complex interaction between:
- section 501;
- section 501CA;
- Ministerial Directions;
- criminal history;
- procedural fairness;
- statutory interpretation;
- mandatory considerations; and
- jurisdictional error.
Specialist legal advice is particularly important in these matters.
13. What Happens If Judicial Review Is Successful?
A successful judicial review does not ordinarily mean that the Court grants the visa.
Instead, the Court may make orders that result in the legally defective decision being set aside and the matter being returned to the relevant decision-maker for reconsideration according to law.
For example:
ART decision → Judicial review → Jurisdictional error established → Decision set aside → Matter returned for lawful reconsideration.
The applicant must then continue through the relevant administrative decision-making process.
14. What Happens If Judicial Review Is Unsuccessful?
If the Federal Circuit and Family Court dismisses the judicial review application, consideration may need to be given promptly to:
- whether there are proper grounds for an appeal to the Federal Court;
- applicable appeal deadlines;
- Bridging visa status;
- section 48 implications;
- alternative visa options;
- Ministerial Intervention where legally relevant;
- departure requirements; and
- the person’s overall immigration status.
An appeal should not be commenced merely to prolong a person’s stay in Australia. There should be a properly arguable legal basis for challenging the judgment.
15. Bridging Visa During Court Proceedings
A person’s immigration status during judicial review requires separate attention.
Commencing court proceedings does not itself mean that a person automatically receives a particular Bridging visa or particular work rights.
Depending on the circumstances, consideration may need to be given to:
- current Bridging visa;
- further Bridging visa application;
- work conditions;
- Condition 8101;
- financial hardship;
- travel restrictions;
- Bridging Visa B;
- visa cessation events; and
- what happens when court proceedings conclude.
The court case and the Bridging visa strategy should therefore be managed together.
16. Court Costs and Litigation Risk
Migration litigation carries financial risk.
Apart from filing fees and professional legal costs, an unsuccessful party may potentially be ordered to pay the other party’s legal costs.
Applicants should therefore obtain advice about:
- prospects of establishing legal error;
- court filing fees;
- solicitor and barrister costs;
- potential adverse costs orders;
- likely duration of proceedings; and
- consequences if the case is unsuccessful.
Judicial review should be pursued because there is a properly arguable legal issue, not simply because the applicant disagrees with the immigration outcome.
17. Federal Court Representation and Our Legal Team
Court litigation is a specialised area requiring experienced legal representation, careful analysis of the administrative decision and a clear understanding of Australian migration law.
At Melton Migration, we have our own Australian lawyers who regularly represent clients in migration matters before the Federal Circuit and Family Court of Australia and the Federal Court of Australia. This enables us to provide a coordinated service where the migration and litigation aspects of a matter can be managed together.
Our migration professionals and lawyers work collaboratively to review the client’s complete immigration history, Departmental and Administrative Review Tribunal (ART) decisions, identify potential legal errors, develop the appropriate litigation strategy and manage related immigration-status issues.
Our legal team can assist with:
- assessing potential jurisdictional error and grounds for judicial review;
- reviewing Departmental and ART decisions;
- preparing and filing court applications;
- drafting grounds of review and legal submissions;
- preparing affidavits and other court documents;
- representing clients in court proceedings;
- briefing barristers or counsel where appropriate;
- handling appeals to the Federal Court of Australia;
- responding to submissions made on behalf of the Minister;
- advising on litigation strategy, prospects and costs risks; and
- working with our migration team on Bridging visas and other immigration matters arising during court proceedings.
Having migration professionals and lawyers working within our team provides continuity from the original immigration matter through ART review and, where necessary, judicial review and Federal Court appeal proceedings.
This integrated approach ensures that the client’s immigration history, evidence, Tribunal proceedings and legal issues are considered together, allowing the matter to be prepared and presented through the appropriate professional and legal channels.
18. Preparing a Matter for Legal Assessment
A judicial review assessment may require review of:
- Departmental decision records;
- ART decision and reasons;
- original visa application;
- written submissions;
- hearing material;
- ART correspondence;
- natural justice correspondence;
- section 56 or section 57 requests;
- applicant and witness statements;
- relevant evidence;
- hearing recordings or transcripts where available;
- court documents from previous proceedings; and
- complete immigration history.
The purpose is to allow the legal practitioner to identify whether there is an arguable jurisdictional or appellate error.
19. How Melton Migration Can Assist
At Melton Migration, our migration-related court support services include:
- reviewing visa refusal and cancellation histories;
- reviewing ART decisions from a migration perspective;
- preparing a complete immigration chronology;
- identifying matters requiring specialist judicial review advice;
- organising Departmental and Tribunal records;
- coordinating with migration lawyers, solicitors and barristers;
- assisting with Bridging visa matters during court proceedings;
- work-rights and Condition 8101 matters where applicable;
- section 48 assessment;
- alternative visa pathway assessment;
- Ministerial Intervention considerations where relevant;
- immigration strategy following an unsuccessful court outcome; and
- ongoing migration assistance if the matter is remitted for reconsideration.
Our Approach
At Melton Migration, we treat migration litigation as part of a broader immigration strategy.
The process is:
Review the ART or other decision → Identify potential legal issues → Refer or coordinate with an Australian legal practitioner → Manage Bridging visa and immigration status → Support the litigation with the complete migration record → Reassess immigration options following the court outcome.
The critical distinction is that the courts deal with legality, not the merits of the visa application. A strong humanitarian case or compelling personal circumstances alone do not establish jurisdictional error.
Melton Migration – Commitment to Excellence
Complex migration matters require precision, careful preparation and appropriate professional collaboration.
Our focus is on quality over quantity, with every matter carefully reviewed before the appropriate pathway is pursued.
“Check Twice, Submit Once.”
Where a matter requires Federal Court or Federal Circuit and Family Court proceedings, we work with appropriately qualified legal practitioners while continuing to manage the client’s broader migration strategy.
Disclaimer: This information is general in nature and does not constitute legal advice or court representation. Judicial review and Federal Court appeals involve complex questions of law, strict procedural requirements, costs risks and statutory time limits. Court proceedings should be assessed and conducted by an appropriately qualified Australian legal practitioner. Melton Migration provides migration assistance within the scope of registered migration-agent services and may coordinate with solicitors and barristers where court proceedings are required.