Judicial Review Best Practice in Drafting

Judicial Review

Judicial Review Best Practice in Drafting

The judicial review of a migration decision is a procedure to appeal an erroneous migration decision. This review consists of a federal court analysing the legality of a migration decision made by the decision-maker, generally the Administrative Appeals Tribunal (AAT).

However, provided that the court finds fault in the decision-making process, it will not reverse the decision, as the judicial review does not grant the court the authority to do that. Instead, the court will return the faulty decision to the original decision maker in order to be reconsidered, with the error specified.

Be noted though – not all migration decisions can be appealed against with a judicial review. Only decisions that have been made with an error of a legal nature can be challenged by a judicial review.

Before choosing on whether to provide the judicial review, the court focuses on the strategies practised by the administration office or division in order to make a choice and decides if:

  • those strategies were predictable with normal equity or procedural decency
  • the variables considered by the decision-making individual were right under the legislation
  • the individual acted within the boundaries of the legislation.

The court does not survey the real choice on its benefits. However, it chooses whether it was appropriately made. It is conceivable that a similar choice will be made by the government the next time, entirely adhering to the guidelines of the court about what is legal.

Grounds of a Judicial review

In general, the statutory grounds which allow for a decision to be judicially reviewed consist of the following:

  • there has been a misuse or breach of the natural justice rules in the making of the decision
  • the procedures that should have been maintained during the making of the decision were not observed
  • the decision was made by an individual who did not have the jurisdiction to make that decision
  • the decision was not authorised by the Act it was under
  • the decision involved an error of law, whether or not that error appears in the records
  • fraudulent activity was involved in the decision-making
  • the making of the decision as unjustified
  • the decision was otherwise contrary to law

How does a Judicial review work?

The judicial review consists of a court examining the way in which the decision was made, and is commonly used to rectify the errors of law which influence the authority of the individual to make the choice. It enables the courts to administer the Tribunal and lower courts and ensure against these bodies forming decisions outside of their authority.

If you are looking for a judicial review on a Commonwealth Government decision you are not satisfied with, you must sue the government in the High Court of Australia, or the Federal Court of Australia. If your case is situated in South Australia, then you must lodge your application to the Supreme Court of South Australia.

When does a Judicial review end?

Usually, a case is resolved when:

  • Either the applicant or the Minister withdraws from the case before the hearing, or
  • The court refers the decision to the original decision-maker in order to be reconsidered (in other words, a successful review application), or
  • The court dismisses the application (an unsuccessful review application), or
  • The court declares that there indeed is an error of law in the decision.

How do I apply for a Judicial review?

If you are seeking a judicial review, you need to fill out the relevant forms and file the necessary documents in the High Court of Australia, Federal Court of Australia, or the Supreme Court of South Australia (if your decision relates to South Australia).

Is there a time frame within which I need to challenge my decision?

Yes. It is best if you challenge your decision as soon as practicable (no later than 6 months) after the grounds for the review are activated.

Who do I contact for lodging my Judicial review application?

For the best kind of assistance in filing for a judicial review, you can contact eduaid. We are the undisputed leaders in the industry and have been so for almost two decades. Our expertise in all things related to migrating to Australia, as well as our dedicated and highly qualified team of migration agents and consultants, guarantees you unparalleled counsel and service.

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