If your application is unsuccessful before the Administrative Appeals Tribunal but the Tribunal made an error of law in their decision, you may have a right of review to the Federal Circuit Court of Australia. Errors of law which usually give rise to a right to judicial review include:
- Where there has been a breach of procedural fairness (this can include significant errors in interpretation, or denial of the opportunity to present your case);
- Where the Tribunal has been biased, or there has been apprehension of bias, against you;
- Where there has been a breach of the Tribunal’s procedures or legislative requirements so that you did not have a genuine hearing;
- Where the decision is so unreasonable that a reasonable person would not consider it to have been made, or where a decision is made where there is no evidence to support it; or
- Where another party has committed a fraudulent act which prevented the Tribunal from hearing your case fairly (if you were advised by someone not to go to your hearing because it would uncover something unlawful they had done) – this is rare.
Time frames for judicial review are very tight, so it is important that you get good advice early about your rights and what the possible outcome of judicial review would be.
CHARACTER AND CRIMINAL LAW MATTERS
If you are not an Australian Citizen and you commit a serious criminal offence, your visa might be cancelled even if you receive a wholly suspended sentence. It is important that your criminal lawyer understands the connection between migration law and criminal law before you are sentenced because in some situations visa cancellation can be mandatory.
If your visa is cancelled, or if the Department sends you a letter saying that they are considering cancelling your visa under the character provisions, it is really important that you get the advice you can trust as soon as you can.
If your application has been refused by the Department, you may have the right to appeal that decision to the Administrative Appeals Tribunal. Time frames on appeal are very strict, and unable to be extended. It is crucial that you get advice about your prospects of merits review as soon as possible after you receive your refusal from the Department.
Having a lawyer who is experienced in Tribunal matters is really important. Tribunal waiting times are long, and it may be that your case can be expedited or resolved without needing to have a hearing. This is where we can help.