Judicial review after an ART decision

If the ART affirms a decision, a court can check it for legal error, not for whether it was right on the merits. The usual time limit is 35 days from the ART's decision.

Judicial review is a court asking whether an ART decision involved a legal error. It is not a second look at the facts. For most ART migration decisions, the application to the Federal Circuit and Family Court of Australia (Division 2) must be made within 35 days of the date of the migration decision.

The court can extend that time only in limited circumstances. This guide explains the general position only.

Merits review and judicial review are different

The ART provides merits review: it decides afresh whether the decision should stand, on the evidence before it. The court can only decide whether a "jurisdictional error" was made. The ART's own information sheet says that if you think its decision is wrong in law, you may consider judicial review.

The court's brochure says the court does not consider the merits. If it finds jurisdictional error, it can refer the case back to the decision maker and can prevent the Minister from acting on the decision. It cannot reconsider the facts, take new factual information (unless relevant to jurisdictional error) or grant you a visa.

The 35-day limit

Section 477 of the Migration Act sets the 35-day limit for Division 2 of the Federal Circuit and Family Court. (Section 477A is the equivalent for the Federal Court, in a narrower set of matters.) The court may extend the time if it considers that necessary in the interests of the administration of justice, but that is a discretion, not a right.

The clock runs from the date of the migration decision as the Act defines it. The court notes that this may differ from the date on the notification letter you received. For ART decisions under Part 5, the Act refers to the day the decision is taken to have been made under the relevant sections. The exact date rules were not worked through for this site, so no worked example is given here. Read the Act or ask a lawyer.

What the court needs

The court says migration review issues are often complex and that its staff cannot give legal advice. An application must identify the jurisdictional error and include an affidavit with the decision attached. The court forms are an Originating Application (Migration Act) and an affidavit.

Costs and fees

The court warns that generally the unsuccessful party pays the successful party's legal costs, so if the application is dismissed you will probably have to pay the Department's legal costs. There is a filing fee and a hearing fee, not payable in some cases such as certain concession cards or financial hardship. If you do not attend, the court may dismiss the application and award costs against you.

Filing does not stop the decision

Under section 481, making the application does not affect the operation of the decision or prevent action to implement it. The ART's sheet says anyone seeking judicial review should apply for another bridging visa before the current one ceases. See bridging visas while you seek review.

Getting advice

The court suggests seeking legal advice as soon as possible and says you may get some free advice from a legal aid office or community legal centre. See free and low-cost help after a visa refusal. Separately from the courts, a person may ask the Minister to intervene after an ART decision; see ministerial intervention explained. For how outcomes are worded, see ART decision outcomes explained.

Nothing here is legal advice or immigration assistance. The date that starts the 35 days depends on how the Act defines the date of the decision, and a lawyer can work that out from the ART decision itself.