The Migration Act 1958 (Cth) (Migration Act) attempts to impose severe restrictions on judicial review of decisions to the Federal Court, Federal Circuit Court or High Court. Section 474 of the Migration Act states that most visa decisions of immigration officers or relevant division of the Migration and Refugee Division (MRD) are to be called privative clause decisions and are final and conclusive, and must not be challenged, appealed against, reviewed, quashed or called into question in any court.

However, the government has not been able to remove the right (s 75(v) Commonwealth of Australian Constitution Act 1900 (Imp)) of aggrieved applicants to challenge decisions of Commonwealth officers. The High Court has stated that where there is jurisdictional error, no lawful decision has been made and the government cannot protect unlawful decisions. The High Court has said it will grant a suitable constitutional writ where a decision is unlawful.

The Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court. The Federal Court has only limited jurisdiction in relation to migration decisions, with its original jurisdiction in this area limited to the specific circumstances outlined in s 476A of the Migration Act.

Further, ss 477, 477A and 486A of the Migration Act provide that an application for review in relation to a migration decision must be made to the Federal Circuit Court, the Federal Court or the High Court respectively within 35 days of the actual (as opposed to deemed) notification of the decision. That time limit can be extended in the interests of the administration of justice.

The opinion of a barrister specialised in migration law is strongly recommended for any party seeking review of a decision of the AAT to one of the federal courts, as the law of judicial review is extremely complex.

Other avenues for redress

It may be appropriate to file a complaint with the Commonwealth Ombudsman, or the Privacy, Race, Sex Discrimination or Human Rights commissioners, if a Department of Immigration and Border Protection official’s conduct infringes any of the relevant legislation.