Judicial Review of Migration cases

Any adverse decision that affects your visa status and rights in Australia must be made in accordance with the law. Judicial review is a process undertaken by federal courts to review these decisions taken by public authorities, usually the Administrative Appeals Tribunal or an inferior court. The Australian Constitution provides the High Court of Australia with the authority to conduct judicial reviews of judgments.


Legislation for Judicial Review

When handling judicial review of migration cases, the Federal Circuit Court is required to adhere to the procedural standards outlined in the Federal Circuit Court Rules 2001, and the Federal Court of Australia is bound by the Federal Court of Australia Act 1976.

The Federal Courts are governed by the Migration Act of 1958 because migration cases are reviews of decisions taken under that Act. The majority of decisions made in accordance with the Migration Act cannot be questioned, contested, or appealed to any court, according to Part 8 of the 1958 Migration Act. However, the Australian Constitution gives the High Court of Australia the power to review decisions, it has determined that decisions issued under the Migration Act of 1958 can still be appealed, but only under limited circumstances.

What constitutes a jurisdictional error?

Jurisdiction is the “authority to decide”. A jurisdictional error arises when a decision-maker exceeds the authority or power conferred upon them. It means the decision-maker has failed to comply with an essential condition to or limit on the valid exercise of power, and this renders their decision invalid

The High Court made it clear in an unanimous decision in Craig v South Australia (1995) 184 CLR 163.

In that case their Honours determined that the following are examples where the court could consider there to be a jurisdictional error

  • Failure on the Tribunal to ensure the procedure is fair. This can be raised as an argument when you have not been given the chance to understand or respond to adverse information relied upon by the decision-maker. In this situation, the adverse information must not have come from you but from another, completely separate source;
  • Failure to apply the right legal principles or visa criteria. This can occur when the Tribunal fails to take into account things that they must as a matter of law in order to carry out the decision;
  • The decision was based on non-existent evidence or a circumstance which gives rise to the decision-maker’s power not existing. This is what is referred to as a “jurisdictional fact”; and
  • The decision was unreasonable because it was irrational or illogical.


If the court determines that the basis for review has been established, it may or may not grant a remedy. The error must have an impact on how decisions are made.

Under Section 16 of the Act, the Federal Court can make an order that:

  • a decision be set aside or cancelled;
  • a matter be referred back to the decision-maker for further consideration;
  • declares the rights of the parties;
  • directs any of the parties to refrain from an action.

At Solve Migration our lawyers’ experience in challenging and defending the decisions of governmental bodies and agencies is extensive. 

For advice or representation in any legal matter related to Migration, please contact us. 

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