Guide to Challenging Unfair Government Decisions: Insights into Judicial Review
You just received a notice of visa refusal or cancellation from the Administrative Review Tribunal (ART), which can be a disheartening experience for many visa applicants. The decision may leave you feeling frustrated and uncertain about your future in Australia. However, it is important to know that you have options to challenge this decision through judicial review (JR) if there is a jurisdictional error.
Understanding Judicial Review
Judicial review (JR) is a legal process through which individuals can challenge decisions made by government bodies, including the Department of Home Affairs (DoHA) and the ART, on the grounds that the decision was assessed unfairly. This process will go through the Federal Circuit Court (FCC), Federal Court of Australia (FCA) and High Court of Australia.
What are the common jurisdictional errors in judicial reviews?
To succeed in your appeal, you have to demonstrate that the decision-maker made a jurisdictional error. The common grounds you can challenge a decision for JR include:
If you were not given a fair opportunity to present your case or if the decision was made without following prescribed legal procedures.
If DoHA or the ART made an error in interpreting the relevant law, leading to an unjust decision.
If the DoHA or the ART failed to exercise its discretion appropriately or acted beyond the scope of its power.
If the decision was based on incorrect or misleading information that significantly influenced the outcome.
What is My Next Step If I Want to Do a Judicial Review?
Consult with an Accredited Specialist in Immigration Law to assist with your JR proceeding. As the process can be complex and technical, having a professional lawyer who focuses on complex matters can be beneficial for your matter.
Then, you or your representative (Immigration Lawyer) will need to lodge in the Federal Court within a specific timeframe. Your application should include the grounds for review and provide supporting evidence.
At the same time, work closely with your lawyer and prepare your case. This may involve gathering relevant documentation, preparing affidavits, and formulating legal arguments to support your claims.
Once your application is filed, the court will issue directions for how the case will proceed. This can include timelines for submissions and the scheduling of hearings.
What Can I Expect During Judicial Review?
The JR process typically involves a hearing before a judge. During this hearing, your representative will present your case, and the government will appoint a defence for the Department’s decision.
After the hearing, the judge may take time to deliberate before issuing a decision. The timeframe may vary, and there may be possibilities that further documents may be requested.
The court may take several actions regarding the JR decision:
Uphold the decision, meaning the visa refusal /cancellation remains in effect.
Set aside the decision and refer the matter back to the ART for reconsideration.
Related:
How Can Agape Henry Crux Help
Deciding to challenge a visa refusal or cancellation can be a complicated process. Consulting legal professionals can help you better navigate the judicial review process. At Agape Henry Crux, one of our Accredited Specialists in Immigration Law works with our team of immigration lawyers and registered migration agents who specialise in handling highly complex matters such as these. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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