Judicial review is the enforcement of the rule of law over executive action. Judicial review is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and protect the interests of the individual accordingly.
The Federal Courts are responsible for judicial review of migration decisions. The process involves the court examining the lawfulness of a decision made by a delegate decision-maker, usually a Tribunal Member of the Administrative Appeals Tribunal in the case of migration decisions, although in some cases judicial review considers the decisions of inferior courts.
An application for judicial review is typically used to remedy an error of law. It is a process that allows the courts to supervise the Tribunal and lower courts, and protect against these bodies making decisions outside of their authority.
The constitutionally entrenched jurisdiction of the High Court is conferred by Section 75(v) of the Australian Constitution in relation to decisions made by officers of the Commonwealth.The High Court of Australia has inherent jurisdiction and the power of the Federal Circuit and Family Court and the Federal Court to conduct judicial review of migration cases is delegated by the High Court.
Judicial review of migration cases are reviews of decisions made under the Migration Act 1958 (Cth) (‘the Act‘). Part 8 of the Act limits judicial review specifying that most decisions under the Act cannot be reviewed, challenged, or appealed by any court. The privative clause set out at Section 474 of the Act sought to restrict access to judicial review, however, the clause has little practical operation following narrow judicial interpretation.
Most first instance migration judicial review matters are heard in the Federal Circuit and Family Court of Australia. For example, the Federal Circuit and Family Court of Australia has jurisdiction to review decisions made by the Migration and Refugee Division of the Administrative Appeals Tribunal. Limited matters can be commenced in the Federal Court's original jurisdiction under Section 476A(1) of the Act, for example decisions to refuse or cancel a visa on character grounds. These specific decisions are generally made by the General Division of the Administrative Appeals Tribunal, or in limited circumstances, by the Minister personally.
For success in a judicial review application, one must satisfy the court that the decision in question was affected by jurisdictional error. The error must be of a legal nature and to do with the power or authority of the decision-maker. Consideration as to whether a migration decision is affected by a jurisdictional error is a complex process and common examples of jurisdictional error include the following:
Lex Lawyers can provide representation in judicial review matters. Where it appears that a decision is affected by jurisdictional error, Lex Lawyers will engage a competent barrister to assist in assessing the decision and provide accurate and understandable advice on the prospects for success.
