Judicial Review to the Federal Circuit Court, Federal Court and High Court of Australia
The courts review applications only to determine whether correct procedures were followed and laws interpreted correctly throughout the decision making process.
Judicial review to the Federal Circuit Court may take approximately 6-10 months. Costs could be as much as $20,000 for review to the FCC, and more for higher courts and complex matters. If an appeal is successful, the Minister may appeal the decision to the higher courts (Federal Court of Australia, Full Federal Court of Australia and High Court of Australia), in which case further costs and legal fees may be incurred. In the event that your appeal is successful and the Minister does not appeal, it may be remitted to the Tribunal for reconsideration by a new member.
Notice of Limited Prospects of Success
All migration-related appeals to the Federal Circuit Court (FCC) have a limited prospect of success as Australia’s sovereign parliament has legislated to limit the jurisdiction of the court with respect to migration. The FCC cannot review the merits of the decision or findings of fact such as the following:
- the decision-maker found the applicant’s evidence to be “implausible” or otherwise not credible;
- the decision maker made a wrong finding of fact;
- the decision maker failed to give sufficient weight to an aspect of the applicant’s evidence.
The following are matters that the FCC may consider:
- a breach of procedural fairness;
- apprehended bias;
- identifying a wrong issue;
- asking itself a wrong question;
- failing to take into account a relevant consideration/ignoring relevant material;
- taking into account irrelevant considerations/material;
- misconstruing a statutory provision;
- misconstruing a statutory test or applying a wrong test;
- failing to comply with a procedural requirement prescribed by the statute;
- failing to consider an applicant’s claims as made, or an “integer” of the applicant’s claims;
- failing to consider an unarticulated claim that was raised “squarely” on the material although not expressly advanced by the applicant;
- unreasonableness, illogicality or irrationality in decision-making such that the conclusion reached by the decision-maker was not reasonably open on the evidence.