The Australian Federal Circuit Court can review migration decisions made by the Minister for Immigration and Border Protection, the Administrative Appeals Tribunal (AAT), and the Immigration Assessment Authority. However, the Court can only review certain technical decisions, and it cannot consider the merits of your application, or whether you should or should not be granted a visa.
Reasons for Appeal
The Court can only hear cases where there has been an 'error of law', which means that the decision to refuse your visa was not correctly made in accordance with Australian law. Errors of law can occur where:
- natural justice has not been given to you - this means that you weren't given the opportunity to respond to adverse information about your application that someone else provided, and the decision-maker relied on that adverse information in refusing your visa application;
- the wrong legal assessment principle/s or visa criteria were applied in making the decision;
- the decision-maker's power was flawed or non-existent; or
- the decision was irrational or illogical.
Lodging an Appeal
Generally, you only have 35 days from the date of the relevant decision to apply for a judicial review. If you wish to appeal, it's important to comply with this time frame, or you could lose your right of appeal.
To seek an appeal, you'll be required to complete the complex legal paperwork, which must include an identification of the error of law you think has been made, and must set out the orders you want the Court to make. You'll also be required to complete an affidavit, which is a sworn statement that supports your application, and which usually includes any evidence you wish the Court to consider.
Understanding whether the Court may be able to hear your case, and running a legal case, is a complex process, particularly if you are trying to do so from South Africa. Pathway's experienced Australian lawyers are well positioned to provide quality and cost-effective legal assistance if you wish to appeal your visa refusal to the Court.
What Happens If You're Successful?
If the Court decides that an error of law was made, the Court can:
- order that the decision be made void;
- make a public declaration that the decision made was void or incorrect; and/or
- return your matter to the decision-maker, who will be required to make the decision again, and in accordance with Australian law.