Judicial review of migration decisions

Topic Administrative law 🇦🇺 Verified: 2026-05

Overview

Judicial review of migration decisions in Australia is governed by the Migration Act 1958 and the Constitution. Section 474 of the Migration Act is a privative clause that attempts to protect migration decisions from judicial review. However, the High Court held in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 that the privative clause cannot prevent judicial review for jurisdictional error — a constitutional guarantee under s 75(v) of the Constitution. As a result, migration decisions may be challenged in court if they involve a jurisdictional error, but not merely because the decision-maker reached the wrong merits conclusion.

The privative clause means that migration decisions are not open to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Instead, review must be sought under the Migration Act itself or directly under the original jurisdiction of the High Court (Constitution s 75(v)).

Legal basis

Section 474 — the privative clause: a "privative clause decision" (a decision of an administrative character made under the Migration Act or the regulations) is final and conclusive, must not be challenged or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court
Section 476 — the Federal Circuit and Family Court of Australia (FCFCA) has jurisdiction to review migration decisions on grounds of jurisdictional error (the court exercises original jurisdiction analogous to s 75(v) jurisdiction)
Section 476A — the Federal Court of Australia has jurisdiction to hear appeals from the FCFCA on questions of law, and in certain direct first-instance applications
Constitution s 75(v) — the constitutional guarantee of judicial review: the High Court has original jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 — the foundational High Court authority on the interaction between the privative clause and s 75(v)

How it works

Jurisdictional error — the key concept

A decision-maker commits a jurisdictional error when they:

Fail to exercise their jurisdiction (by failing to consider a matter they are required to consider)
Exceed their jurisdiction (by deciding a matter outside the scope of their power)
Fail to comply with a mandatory procedural requirement (such as the s 57 natural justice obligation)
Take into account an irrelevant consideration or fail to take into account a relevant one
Make an error of law that goes to jurisdiction (as opposed to a mere error within jurisdiction)
Act in bad faith

A mere error of fact — the decision-maker reached the "wrong" conclusion on the evidence — is generally not a jurisdictional error and is not grounds for judicial review.

The court hierarchy

Federal Circuit and Family Court of Australia (FCFCA) — Division 2 — the primary first-instance court for migration judicial review; hears the vast majority of migration review matters
Federal Court of Australia — hears appeals from the FCFCA on questions of law; also has first-instance jurisdiction in certain complex matters
High Court of Australia — hears special leave applications from the Federal Court; also has direct original jurisdiction under s 75(v), though this is rarely used as the first avenue (applicants must typically exhaust the FCFCA/Federal Court pathway first)

Time limits

Applications for judicial review in the FCFCA must generally be filed within 35 days of notification of the decision. Extensions of time may be granted in limited circumstances. Failure to file within time is a significant procedural barrier.

The character and s 501 cases

Judicial review is particularly significant in character cancellation cases. Decisions by the Minister personally under s 501 are not subject to merits review by the ART; the only avenue is judicial review for jurisdictional error in the Federal Court (not the FCFCA, which does not have jurisdiction over personal Ministerial decisions).

Limits of judicial review

Judicial review does not examine whether the decision-maker reached the correct conclusion on the merits. If the court finds a jurisdictional error, it quashes the decision and remits it for reconsideration — the court does not substitute its own decision.