Merits and Judicial Review | November 20 2019
The most misunderstood aspect of migration law is the merits and judicial review process. Even the terms ‘merits review’ and ‘judicial review’ are difficult to understand without a legal background and clients are often confused about what these processes involve.
Merits Review
Merits review is when the decision maker reviews the facts, issues and laws used in the previous decision and determines if that is the correct decision. If the decision maker find that the previous decision is incorrect, then the decision is set aside and sent back to the Department for reconsideration. However, if the decision maker accepts the decision of the Department, the decision remains unchanged.
Merits review involves appeals to the Administrative Appeals Tribunal (AAT) or the Immigration Assessment Authority (IAA). Once you receive the Department’s refusal decision, you have 21 days to appeal to the AAT (please note this time limits varies depending on the type of decision). In relation to fast track reviewable decisions, if you are an eligible fast track applicant, your refusal decision will be referred to the IAA for review.
Judicial Review
Judicial review is when a judge reviews the previous decision and identities if there has been an error in the application of the law. If an error exists, the Judge can set aside the decision and direct that the previous decision maker reconsider the case and make a decision according to the law.
Judicial review involves appeals to the Federal Circuit Court, Federal Court, Full Federal Court and High Court of Australia. Once the AAT provides a refusal decision, you have 35 days to appeal to the Federal Circuit Court.
It is important to note that Bridging visas do not continue when you appeal to the Courts. You need to make another application for a bridging visa on the basis of your application for judicial review.
Turner Coulson has a dedicated merits and judicial review team who appear before the AAT and Courts in all migration matters ranging from visa refusals to complex matters such as visa cancellations on character grounds. If you are considering appealing to the AAT, IAA or the Court, please call us on (02) 9222 1545 for a no obligation preliminary discussion so that we may give you a view on your chances of success.
Please contact me if you have any queries in this matter.
