Judicial review of a visa refusal decision
After a visa refusal is upheld on merit review (AAT or ART), the applicant may seek judicial review in the Federal Circuit and Family Court. The court examines whether the tribunal made a jurisdictional error — such as failing to consider a relevant consideration, asking the wrong question, or denying procedural fairness. The court cannot re-decide the case on the merits.
This is an 8-step workflow for seeking judicial review of a visa refusal decision (typically after AAT/ART review) in the Federal Circuit and Family Court of Australia. Judicial review is limited to legal error — the court cannot substitute its own decision on the merits.
Before you start
- The AAT/ART decision record and reasons for decision
- The original visa refusal decision by the Department
- The tribunal hearing transcript (if available)
- All documents that were before the tribunal (the court book)
The workflow
Assess grounds for judicial review
Review the tribunal decision for jurisdictional error. Common grounds include: failure to consider a relevant consideration, taking into account an irrelevant consideration, unreasonableness, denial of procedural fairness, failure to comply with the Migration Act, or apprehended bias.
Check time limits strictly
Applications for judicial review of migration decisions must be filed within 35 days of the applicant being notified of the tribunal decision (Migration Act s 477). This time limit is strictly enforced and cannot be extended. Late applications are dismissed.
Prepare the application for judicial review
Draft the application in the prescribed form, clearly identifying each ground of jurisdictional error relied on. Grounds must be particularised — a general assertion that the tribunal was wrong is not sufficient.
File the application and pay the filing fee
File the application in the Federal Circuit and Family Court of Australia (Division 2). Pay the filing fee or apply for a fee exemption if the applicant meets the financial hardship criteria. Filing stops the tribunal decision from being implemented in some cases.
Prepare the court book
Compile the court book containing: the tribunal decision and reasons, the delegate decision, relevant correspondence, the visa application, and the documents that were before the tribunal. Index and paginate the court book for filing.
Draft written submissions
Prepare written submissions addressing each ground of jurisdictional error. Reference the tribunal reasons, the applicable law, and relevant Federal Court and High Court authority. Address the Minister's likely response to each ground.
Attend the hearing
Attend the judicial review hearing. Oral argument is typically brief (30-60 minutes). Be prepared to address questions from the court about the specific jurisdictional error and the practical consequences of the decision being set aside.
Act on the outcome
If the application succeeds, the tribunal decision is set aside and the matter is remitted to the tribunal for re-determination according to law. If the application is dismissed, advise the client on appeal prospects to the Federal Court (Full Court) or a special leave application to the High Court.
What you will have at the end
If successful, the tribunal decision is quashed and the matter is sent back for re-hearing. The court does not grant the visa — it corrects the legal error and requires the tribunal to decide again correctly.
Common issues
- Missing the strict 35-day filing deadline with no ability to extend
- Confusing merit review with judicial review — the court does not re-decide the facts
- Grounds that are too vague or amount to disagreement with the tribunal findings of fact
- Not identifying the specific provision of the Migration Act that the tribunal misapplied
- Underestimating the difficulty of establishing jurisdictional error on unreasonableness grounds
Run this workflow on a real matter
Quillio analyses tribunal decisions for jurisdictional errors, researches relevant case law, and helps draft judicial review applications and submissions. See /practice-areas/immigration-lawyers or start a free trial.
This workflow covers judicial review of visa refusal decisions under Part 8 of the Migration Act. Character-related decisions, cancellation decisions, and ministerial intervention requests follow different pathways.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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