What is the Difference Between Merits Review and Judicial Review?
Have you had your visa refused or cancelled by the Department? If you wish to challenge this decision, you will have to apply for review. However, which pathway should you take – merits review or judicial review?
What is a Merits Review?
Merits review is undertaken by the Administrative Review Tribunal (ART), which conducts a de novo hearing, which means that the Tribunal is able to consider fresh evidence and make a new decision. Unlike a court, the Tribunal can ask questions and request for evidence. Applicants often attend by themselves, although a legal representative can accompany them if desired.
What is A Judicial Review?
Judicial review has narrower grounds compared to merits review as leave to appeal will only be granted where there is appellable error. An appellable error involves a material jurisdictional error. Materiality means that an error had an actual impact on the decision or outcome – if your visa would have been cancelled or refused regardless of the error, then it is not material.
The Administrative Decisions (Judicial Review) Act 1977 requires that most migration cases first be decided by the Federal Circuit and Family Court before being appealed to the Federal Court or High Court. A migration decision will only be heard in the High Court or Federal Court’s original jurisdiction in exceptional cases.
What is a jurisdictional error?
A jurisdictional error is an error of law affecting a decision to such an extent that it invalidates it. Recognised categories of jurisdictional errors include:
Apprehended or actual bias
Lack of procedural fairness
Failure to take a relevant consideration into account
Taking an irrelevant consideration into account
Making an illogical, irrational or unreasonable decision
What are the time limits for both Merits Review & Judicial Review?
You will be given 28 days to make an appeal application to the ART and 35 days to make a judicial review application after receiving a decision. It is possible to file an appeal outside of the time limit. However, you will need to show that there is a strong reason for doing so. It is best to consult an Accredited Specialist in Immigration Law to navigate if you are in these circumstances.
How will this impact my Bridging Visa?
A bridging visa associated with an application will cease 35 days after the case is finally determined – meaning it is decided by the Tribunal if it is appealed or after the Minister refuses it. As a result, you will not need to apply for a new bridging visa if seeking merits review. If, instead you are applying for judicial review, you will need to apply for a new bridging visa.
Which is the more suitable pathway?
Judicial review is often a lengthier and costlier process than merits review, with a full proceeding at the Federal Circuit and Family Court being upwards of $8,371 compared to the $3,496 application fee for the ART. It is also possible to be granted a fee reduction. Tribunal hearings also have the benefit of being more accessible for self-represented applicants due to their lower complexity. Not requiring legal representation means that Tribunal hearings will often be significantly cheaper.
However, the advantage of judicial review lies in the certainty of legal precedent. Whilst Tribunals may often consider previous decisions, they are not bound by them. Judicial review is arguably a fairer and more robust review process.
Client Testimonials
….we call it Support Network
Navigating the immigration law process may be difficult, and our former clients have agreed to share their experiences through telephone chats, emails, and in-person meetings.
These are their stories…
How Can Agape Henry Crux Help
Contact Agape Henry Crux and speak with our Accredited Specialist Immigration Lawyer(s) for tailored advice and assistance. This is your best way forward if you are deciding between an appeal to the ART or a judicial review to the court. The team of immigration lawyers and registered migration agents specialise in handling highly complex matters. You can schedule an appointment with one of our lawyers to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
