Immigration Law | Taking the Minister to Court: Judicial Review After a Visa Refusal or Cancellation

Introduction

The importance of a visa to those who reside long-term in Australia, or who come to Australia to study, work, or reunite with family, is self-evident. Yet many people whose visas have been refused or cancelled are unaware of the review pathways that may be available to them. This article introduces Australia’s judicial review system, with a particular focus on visa refusal and visa cancellation decisions.

What Is Judicial Review?

Judicial review is the process by which courts examine the legality of administrative action taken by the executive.

The purpose of judicial review is to provide a legal check on the exercise of public power, so as to uphold the rule of law and protect individuals from unlawful administrative action.

Of course, judicial review does not give the courts licence to usurp the role of the government and make administrative decisions in its place. Rather, it ensures through the judicial process that administrative decisions are made according to law, arrived at through a fair and proper procedure, and kept within the authority conferred by legislation enacted by Parliament.

It follows that the court will neither make a new administrative decision to replace the government’s decision, nor look behind the merits of the government’s decision. It will only determine whether the decision was lawfully made. With that foundation in mind, the next section explains the similarities and differences between the two most common review pathways available to a person who receives an adverse administrative decision.

The Difference Between Judicial Review and Merits Review

Merits review and judicial review are two common pathways for challenging adverse migration decisions. The fundamental distinction between them lies in the reviewing body: merits review is conducted by an administrative body, while judicial review is conducted by a court.

In immigration law, a decision to refuse or cancel a visa is, at its core, an administrative decision made by the Minister for Immigration or a departmental officer.

• First, where merits review is available under the Migration Act, the decision may be reviewed by the ART, an external administrative body independent of the Department.

  
  

• Second, under Australia’s constitutional framework of separation of powers, the authority exercised by the Minister, departmental officers, and the ART alike derives from legislation enacted by Parliament. The decision is therefore also subject to judicial review, through which the courts examine the legality of how that authority was exercised.

  
  

Beyond the difference in the source of their respective powers, merits review and judicial review also differ significantly in procedure, the admission of evidence, and substantive powers. These differences can be summarised as follows:

• Reviewing body: Merits review is conducted by the ART, an administrative body. Judicial review is conducted by the federal courts, which are judicial bodies.

  
  

• Sequence: Where merits review is available, a person who receives an adverse decision from the Department should usually consider that pathway first. If dissatisfied with the outcome of merits review, they may then consider whether judicial review is available.

  
  

• Scope of review: Merits review involves a comprehensive re-examination of the administrative decision. Judicial review is confined to errors of law, and in immigration law is further confined to jurisdictional error.

  
  

• Admission of evidence: In merits review, the reviewer stands in the shoes of the original decision-maker and conducts a hearing de novo, meaning entirely new evidence may be admitted. Judicial review examines only the legality of the prior administrative decision, so fresh evidence going to factual matters is generally not admissible.

  
  

• Outcome: The merits review body can, in theory, make the correct or preferable decision. The court conducting judicial review can only quash the original decision, prohibit the administrative body from implementing it, or order the administrative body to remake the decision according to law.

  
  

• Cost and formality: Judicial review is more formal than merits review, and typically involves greater time and legal costs.

Judicial Review in Immigration Law

Parliamentary restrictions on judicial review in immigration law

As noted above, the function of judicial review is to identify and correct errors of law committed by administrative bodies in their decision-making.

Parliament has, at different times, sought to limit the scope of migration judicial review, including by inserting privative clauses into the Migration Act in 1994 and 2001.

However, in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, the High Court of Australia held that the privative clause in the Migration Act could not prevent judicial review for jurisdictional error. The reason is that s 75(v) of the Constitution entrenches the High Court’s jurisdiction to grant constitutional writs against officers of the Commonwealth.

The concept of jurisdictional error therefore remains central to judicial review in immigration law. Although jurisdictional error was historically one category among many types of legal error, many grounds that might once have been expressed differently are now analysed through the lens of jurisdictional error.

For practical purposes, the critical distinction is between jurisdictional errors and non-jurisdictional errors. Where a visa decision is affected by jurisdictional error, the person adversely affected may apply to the relevant federal court for judicial review, subject to the statutory framework and applicable time limits.

Jurisdictional error

Courts and legal scholars alike have acknowledged that defining jurisdictional error, or distinguishing which legal errors should be classified as jurisdictional, is an exceptionally difficult judicial and academic question.

In the words of Selway J, drawing the line between jurisdictional error and other legal errors is both difficult and, to some extent, arbitrary. The distinction turns on whether the error was one that fell within the scope of the decision-maker’s legal authority, or one that fell outside it.

Put simply, in the immigration context, jurisdictional error occurs when the Minister, a departmental officer, or the ART makes a decision that fails to comply with, or exceeds the bounds of, the authority conferred by law. This definition may sound straightforward, but in practice jurisdictional error often turns on technical and granular legal issues, rather than on whether the decision-maker reached the right factual conclusion.

The following table gives simplified examples of common jurisdictional errors recognised in case law, and matters that generally fall outside judicial review because they go to the merits of the decision:

Category	Examples that may amount to jurisdictional error	Examples generally outside judicial review
Procedural fairness	The applicant was not given a fair opportunity to respond to adverse material.	Mere disagreement with the weight given to evidence.
Wrong legal test	The decision-maker applied the wrong statutory criterion or misunderstood the legal task.	The applicant believes a different outcome would have been fairer.
Mandatory relevant consideration	The decision-maker failed to consider a matter that the law required to be considered.	The decision-maker considered the issue but gave it little weight.
Irrelevant consideration	The decision-maker relied on a matter that the statute did not permit them to consider.	The decision-maker considered legally permissible facts in a way the applicant dislikes.
Legal unreasonableness	The decision was not legally open on the material before the decision-maker.	A harsh or disappointing decision that was still legally open.
No evidence	A critical finding was made without supporting evidence.	A factual finding was made on evidence that the applicant disputes.

Outcome of judicial review

The constitutional foundation for judicial review of Commonwealth administrative action is s 75(v) of the Constitution, which entrenches the High Court’s jurisdiction to grant relief against officers of the Commonwealth. In migration matters, Parliament has also conferred related jurisdiction on the Federal Circuit and Family Court of Australia and, in specified cases, the Federal Court of Australia under the Migration Act.

The principal remedies in judicial review include:

• Certiorari: quashing the decision. For example, quashing the decision to refuse or cancel a visa.

• Prohibition: prohibiting the administrative body from carrying out the decision. For example, prohibiting the Department from removing a person from Australia where the cancellation decision is affected by jurisdictional error.

• Mandamus: ordering the administrative body to remake the decision according to law. For example, ordering the Department or the ART to reconsider and make a fresh visa decision in accordance with law.

  
  

This illustrates that the court is bound by Australia’s constitutional framework of separation of powers. Even where it finds jurisdictional error in a visa refusal or cancellation decision, the court cannot step into the Department’s shoes and make a more appropriate visa decision of its own. In most cases, the court will quash the flawed decision and remit the matter to the ART for reconsideration in accordance with law.

Conclusion

This article has focused on the judicial review pathway that may be available to a person who receives a visa refusal or cancellation decision. Judicial review is not concerned with whether the court would have made a different visa decision. It is concerned with whether the decision was made according to law. In practice, there are many further details to consider, including strict time limits for filing a judicial review application. The specific steps will depend on the circumstances of each case, and affected persons should seek tailored legal advice promptly.

Beyond immigration law, as the scope of government functions continues to expand, administrative decisions by bodies such as the ATO, social welfare agencies, and local councils are an ever-present feature of daily life and work. Judicial review is not confined to immigration law. Many administrative decisions made by government bodies may be subject to judicial review, depending on the statutory framework and the nature of the decision. It is hoped that this article also serves as a broader introduction to Australia’s judicial review system for a wider readership.

The Ausjuris Legal team has experience assisting clients in visa refusal, visa cancellation, ART review and judicial review matters. If you have received an adverse migration decision, you should seek legal advice promptly, as strict time limits may apply.

This article is provided for general informational purposes only and does not constitute legal advice. Reading or receiving this article does not create a solicitor-client relationship with Ausjuris Legal or its employees. You should seek specific legal advice before acting on any information contained in this article. Ausjuris Legal and its employees accept no liability for any loss arising from reliance on this article.

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Ausjuris Legal team has extensive experience in immigration law. Please contact us to obtain professional legal services.

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 The information provided in this article is for general informational purposes only and does not constitute formal legal advice. Receipt of this information does not create a lawyer–client relationship. Ausjuris Legal and Yang Wenjun accept no liability for any loss arising from the use of, or reliance on, the information contained in this article.