Judicial Review of Migration Decisions

Judicial review is a fundamental aspect of the Australian legal system, allowing the courts to assess the legality of decisions made by government bodies and tribunals in applying laws enacted by Parliament. Rooted in the doctrine of the separation of powers, judicial review ensures that the Executive acts within legal bounds. This is as distinct from merits review which involves a reconsideration of the facts and policy to determine the correct or preferable decision.

What is Judicial Review?
Judicial review is the determination by the Judiciary (i.e., the courts) of the legality of the exercise of power by the Executive (i.e., government administrators and tribunals) in the application of laws enacted by the Parliament.

The doctrine of separation of powers is critical to an understanding of judicial review. Parliament has the power to make and change the law under Chapter I of the Australian Constitution; the Executive has the power to put the law into action under Chapter II; and the “Judicature”, or Judiciary, has the power to make judgements on the law under Chapter III.

Judicial review is to be contrasted with merits review, which is where a person or body other than the primary decision-maker reconsiders the facts, law and policy aspects of the original decision and determines what is the “correct or preferable decision”: Drake v Minister for Immigration (1979) 46 FLR 409 at 419.

At a Federal level, merits review is usually conducted by a tribunal, such as the Administrative Review Tribunal (ART), formerly the Administrative Appeals Tribunal. The ART is a part of the Executive government under to Chapter II of the Australian Constitution.

Avenues for the judicial review of migration decisions
The power of the Commonwealth Judiciary to review decisions made by the ART frequently stems from the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) which, pursuant to s 5, enables the federal courts to review decisions for error based on long-established grounds, such as breach of the rules of natural justice, failure to follow mandatory procedures, error of law, no evidence; taking into account irrelevant considerations and failing to take into account relevant considerations, unreasonableness, and bias. However, the type of decisions which can be reviewed under the ADJR Act are limited, and s 3(1)(b) along with Schedule 1 excludes some types of decision from the ADJR Act, including decisions made under the Migration Act 1958 (Cth).

In place of the ADJR Act, in the 1990s Parliament provided a more limited form of judicial review for migration decisions under the Migration Act 1958 with the express purpose of restricting the available grounds of review for migration decisions.[1] In 2001 Parliament removed those limited grounds and even attempted to impose a “privative clause” in s 474 of the Act which excluded all judicial review of migration decisions. Section 474 remains in the Act; however, it was rendered ineffective by the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157) which found that the privative clause does not apply to decisions affected by “jurisdictional error”.

The immediate result of the above events was that, with no access to the ADJR Act and no alternative statutory means of challenging migration decisions, the only remaining remedy for persons affected by adverse migration decisions was to lodge an application to the High Court of Australia under its original jurisdiction under s 75(v) of the Constitution to grant the constitutional writs[2] of mandamus, prohibition or injunction against “an officer of the Commonwealth”, which of course included tribunal members.[3] The Constitution of course can only be altered by a referendum and, thus far, Parliament has not sought to hold a referendum altering the Constitutional rights of those affected by migration decisions.

After the decision in Plaintiff S157 the High Court was inundated with applications under its original jurisdiction for review of migration decisions, and in this led to the creation of the Federal Magistrates Court in 2005, which under s 476(1) of the Migration Act was given same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.

The Federal Magistrates Court has now evolved into the Federal Circuit Court and Family Court of Australia (FCFCA), and it will usually be the first port of call for those seeking to challenge a migration decision.

However, note that there are some forms of migration decision which are not reviewable by the FCFCA. Foremost, these include “primary decisions”; that is decisions of officers of the Department of Immigration which are reviewable by the ART, and decisions of the ART in relation to the cancellation and refusal of visas for reason of bad character. These decisions are reviewable by the Federal Court of Australia under s 476A of the Migration Act.

The High Court still retains its original jurisdiction under s 75(v) of the Constitution; however, applications made directly to the High Court will usually be quickly remitted for determination by one of the lower courts.

The Constitutional Writs
As can be seen from the above, practitioners who seek judicial review of migration decisions will be going to either the High Court (under its original jurisdiction) or the FCFCA or the Federal Court under the Migration Act, to seek the issue of the Constitutional writs of Certiorari, Prohibition and Mandamus.

The ancient prerogative writs of Certiorari, Prohibition and Mandamus date from at least the eighteenth century prerogative of the English monarch to issue writs through the King’s Bench division of the Royal Courts, in order to require public officials to properly perform their administrative functions. In simple terms:

• Certiorari – QUASHES the decision;
• Prohibition – PROHIBITS the decision-maker from acting on the decision; and
• Mandamus – DEMANDS that the decision-maker re-determine the decision “according to law”.

For migration decisions, the grant of the writs will operate as follows:

• Certiorari –the decision will be set aside (quashed);
• Prohibition – the decision-maker (both the Minister for Immigration and the Tribunal) will be prohibited from acting on the decision, including deporting the person; and
• Mandamus – the matter will be remitted to the Tribunal with a demand that it re-decides the matter in accordance with the law as stated by the Court.[4]

Jurisdictional/non-jurisdictional error
Undoubtedly the most difficult issue to grasp in the judicial review of migration decisions is the concept of jurisdictional and non-jurisdictional error.

The Constitutional writs will only be granted if the applicant can establish jurisdictional error. This is where the decision maker goes outside the limits of the functions and powers conferred or does something which he or she lacks power to do. This is to be contrasted with non-jurisdictional error, or “error within jurisdiction”, where the decision-maker incorrectly decides something which he or she is authorised to decide (sometimes called “authority to go wrong”).

Somewhat fortunately, the High Court has suggested that, rather grapple with a precise definition of “jurisdictional error”, it is better illustrated by considering “species” of error: see, e.g., Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] (Hayne J). Here, practitioners will find themselves on more familiar grounds, with the following examples of jurisdictional error:

• identifying a wrong issue/asking a wrong question/applying incorrect test; ignoring relevant material/relying on irrelevant material: see, e.g., Craig v South Australia (1995) 184 CLR 163 at 179; Appellant S395/2002 v Minister for Immigration (2004) 216 CLR 473 at [82] (Gummow and Hayne JJ);
• failure to consider claims: see, e.g., Dranichnikov v Minister for Immigration (2003) 197 ALR 389;
• breach of the rules of natural justice: see, e.g., Kioa v West (1985) 185 CLR 550;
• failure to follow mandatory procedures: see, e.g., SAAP v Minister for Immigration (2005) 228 CLR 294:
• actual bias: see, e.g., Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 at [27]-[28]
• apprehended bias: see, e.g., Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72]
• illogical/irrational/unreasonable decision: see, e.g., Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration v Li (2013) 297 ALR 225; [2013] HCA 18.

The Constitutional writs are discretionary
Finally, it is important to keep in mind that, since the Constitutional writs are the “prerogative” of the court, they are granted only at the discretion of the court.

As such, it is possible to establish the grounds for Constitutional writs yet still not be granted the writs on discretionary grounds.

Examples where the courts have exercised the discretion to refuse to grant a writ include:

• Where it would be futile to remit the matter because the decision arrived at was clearly correct on the material before it, or the same result would be inevitable on remitter; for example, because an applicant would be unable on remitter to satisfy a mandatory requirement for a visa: see, e.g., SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1207; [2007] HCA 26 at [87]–[89] (Kirby J) (sometimes called the ”Futility Rule”).
• Where the applicant has behaved unconscionably or has otherwise engaged in conduct which is inconsistent with the application for relief; for example, by excessive delay in bringing proceedings or having waived or acquiesced in the decision: SZQBN v Minister for Immigration (2013) 213 FCR 297 at [39]–[60]; SAAP v Minister for Immigration (2005) 228 CLR 294 at 322 [80] (McHugh J).

Sources for further information

• Poynder, Judicial Review Commentary, LexisNexis Australian Immigration Law
• Jade (https://jade.io/), for up-to-date case law from each migration jurisdiction)
• Federal Circuit and Family Court website (https://www.fcfcoa.gov.au/), including specific migration forms (https://www.fcfcoa.gov.au/migration-law/forms)
• Federal Court of Australia website (https://www.fedcourt.gov.au/), including Migration Guide (https://www.fedcourt.gov.au/law-and-practice/guides/migration).

[1] See, generally, Crock M and Berg L, Immigration, Refugees and Forced Migration, Federation Press, Sydney, 2012, pp 634–645.

[2] The High Court now prefers the term, “Constitutional writs”: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala)at 92–93 [21] (Gaudron and Gummow JJ).

[3] The writ of Certiorari was subsequently recognised by the High Court as an “ancillary” or “incidental” remedy to the writs of mandamus and prohibition, despite not being referred to in the Constitution: see Aala at 90–91 [14] (Gaudron and Gummow JJ).

[4] The matter will usually be heard by a different Tribunal member, to avoid any perception of bias.

This article has been drawn from a seminar provided to the Law Society of Tasmania on 14 March 2025 which can be accessed here.

Nicholas Poynder
Rosny Chambers
npoynder@rosnychambers.com.au
May 2025