Federal Court (migration judicial review)
Statutory definition
Section 476 of the Migration Act 1958 (Cth) confers original jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) to review decisions of the Administrative Review Tribunal (Migration and Refugee Division). Section 476A confers jurisdiction on the Federal Court. Section 477 sets time limits for lodging judicial review applications.
Explanation
Judicial review in migration matters is available for jurisdictional error — not for disagreement with the merits of the decision. Jurisdictional errors include:
- Failure to comply with a mandatory procedural requirement (breach of procedural fairness)
- Error of law going to jurisdiction
- Misconstruction of the statute leading to the wrong question being asked
- Reaching a conclusion that no reasonable decision-maker could reach (unreasonableness)
- Taking into account irrelevant considerations or failing to take into account relevant considerations
Applications for judicial review of Federal Circuit and Family Court decisions go to the Federal Court on appeal. Appeals from the Federal Court go to the Full Federal Court and ultimately to the High Court.
How this term is used
The time limit for applying for judicial review in the Federal Circuit and Family Court is generally 35 days from the date of the ART decision (s 477). The Federal Court has its own time limits. Extensions may be granted in limited circumstances. A pending judicial review application does not automatically stay removal — a separate application for an injunction is required.