What is a judicial review?
A judicial review is a process undertaken by the Federal courts. It examines the lawfulness of a decision made by a decision-maker such as the AAT or the inferior courts.
It is important to note that a judicial review is not concerned with the merits of the decision. Rather, it focuses on whether the decision has been made using correct legal reasoning in accordance with the law. Where the court finds that a decision has not been made lawfully, its power is generally confined to quashing a decision and remitting it back to the decision-maker for reconsideration.
Possible grounds of review
- Breach of procedural fairness
- An error of law or jurisdictional error
- The decision was unreasonable because it was irrational or illogical.
- Failing to consider relevant and considering irrelevant considerations
- Actual and apparent bias
Common jurisdictional errors by the Administrative Appeals Tribunal (AAT)
Breach of procedural fairness
A common jurisdictional error that the AAT could make is the section 375A certificate. Once the Department issues a section 375A certificate to an applicant, the AAT is incumbent to mention the existence of the certificate. Often, the member of the AAT may fail to mention the existence of such a certificate. In that case, the AAT has failed to follow the natural justice hearing rule. Therefore, on the grounds of procedural fairness, the Federal Circuit Court will most likely quash the AAT’s decision and remit the case back to the AAT. As aforementioned, the judge of the Federal Circuit Court has no power to order AAT to make a new decision as judicial reviews are not concerned with the merits of the decision. The court’s power is generally limited to remitting the case back to the AAT for reconsideration.
Misinterpretation of the Act
Another common jurisdictional error that the AAT could make is the misinterpretation of the regulations or sections of the Migration Act. For example, the AAT may form a view that they do not have jurisdiction to review a delegate’s decision should the delegate state that he/she has only considered Regulation 2.59(c) without further considering both part (d) and (e), etc. In this case, Regulation 4.02(4A) in Migrations Regulation 1994 will apply and the decision will not be reviewable.
In the recent case of Auservices Pty Ltd v Minister For Immigration & Anor , Judge Vasta found that part (d) and (e) of Reg 2.59 cannot both be literally considered in the way that the AAT has interpreted the term ‘consider’. The Tribunal had used the literal rule of statutory interpretation in interpreting Reg 4.02(4A). Therefore, unless it can be established that the Delegate did give consideration to both Reg 2.59 (d) and (e), then the application is not reviewable.
However, (d) and (e) are alternatives that cannot be literally considered at the same time. If a delegate considers (d), then that delegate could not be considering (e); and, if a delegate considered (e), then that delegate would not be able to consider (d). This means that no person, whose application for approval as an approved sponsor was refused, would be able to launch a merits review. In this case, the AAT had misinterpreted the regulation in forming the view that they did not have jurisdiction. This was found to be a jurisdictional error and the decision was quashed.
HRL Legal acted for Auservices Pty Ltd in Auservices Pty Ltd v Minister For Immigration & Anor .
There are other grounds to apply for a review at the AAT. This will be discussed more in the next article.
If a jurisdictional error arises and you believe there are grounds for your application, you can appeal against the decision made by lodging an application to the Federal Circuit Court.
On review, if the court finds that the decision-maker has made a jurisdictional error, the court will quash the original decision and remit the matter to the decision-maker for reconsideration.
At HRL Legal we have a highly experienced team who is very active in this area and can guide you through this complex process.