Last updated 30 September 2024

Historically, te Migration Act 1958 (Cth) (Migration Act) attempted to restrict judicial review of decisions. Section 474, introduced in 1997, states that most visa decisions of immigration officers or the Administrative Review Tribunal (ART) are privative clause decisions, which are final and conclusive, and must not be challenged, appealed against, reviewed, quashed or called into question in any court.

However, as is well known, the High Court of Australia held in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, that the privative clause, properly construed does not apply to decisions that are affected by jurisdictional error. This is because a decision affected by jurisdictional error is no decision at all – it is a nullity, void (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597). Consequent to this, a very large and complex body of caselaw has developed around jurisdictional error, which includes categories reflective of administrative law generally, where there is no privative clause including:

  • misconstruing a statutory provision or test or applying the wrong test
  • failure to comply with a statutory procedure
  • identifying a wrong issue or asking the wrong question
  • mistaken denial of jurisdiction
  • breach of procedural fairness
  • failure to take into account a relevant consideration or ignoring relevant material (e.g. an applicant’s claims, integers of those claims or evidence/material submitted in support of those claims)
  • taking into account irrelevant considerations/material, unreasonableness/illogicality/irrationality of findings or process
  • no evidence or lack of evidence for a finding
  • actual or apprehended bias
  • acting in bad faith when making a decision or making a decision affected by fraud if it affects the exercise of power
  • exercising a power for a purpose other than that for which it was conferred.

The Federal Circuit and Family Court of Australia has the same original jurisdiction in relation to migration decisions as the High Court of Australia. The Federal Court of Australia 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 and Family Court of Australia, the Federal Court of Australia or the High Court of Australia 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.

A note of warning

The opinion of a barrister specialised in migration law is strongly recommended for any party seeking review of a decision of the ART to one of the federal courts, as the law of judicial review is extremely complex. It should also be noted that when a lawyer files an application commencing judicial review of a migration matter, they must certify that they believe on reasonable grounds that the litigation has reasonable prospects of success (s 486I Migration Act). Section 486E states that a person must not encourage another person (the litigant) to commence or continue migration litigation in a court if ‘… the migration litigation has no reasonable prospect of success’. Section 486F of the Migration Act allows for a costs order to be made against the lawyer (or other person) personally if they breach s 486E.