Federal Circuit & Family Court
If your ART review is unsuccessful — or if you do not have merits review rights — you may be able to apply for judicial review at the Federal Circuit and Family Court of Australia. This is a different and more limited form of review than the ART.
Overview
What Is Judicial Review?
Judicial review is fundamentally different from the merits review conducted by the ART. The Federal Circuit and Family Court of Australia does not re-assess the merits of your case or consider whether the decision was the right one. Instead, it examines only one question: was the decision made according to law?
The Court will only intervene if it finds a jurisdictional error — a legal mistake that materially affected the outcome of your case. If such an error is found, the Court sets aside the decision and remits the matter back to the ART or the Minister to be determined again correctly. The Court cannot substitute its own decision or grant you a visa directly.
Key Features of Judicial Review
- Legal error only — The Court only intervenes if it finds a jurisdictional error — a legal mistake that affected the outcome. It cannot review the merits of the original decision.
- No new evidence — The Court does not consider new evidence. It examines only the material that was before the original decision-maker.
- 35-day deadline — Applications must be filed within 35 days of the ART's decision. The Court may extend this only in very limited circumstances.
- Costs risk — If unsuccessful, you may be ordered to pay a substantial portion of the Minister's legal costs. If successful, the Minister may be ordered to contribute to yours.
- Limited outcome — If jurisdictional error is found, the decision is set aside and remitted — the Court cannot grant a visa directly or substitute its own decision.
What Is Required
Pursuing Judicial Review — What You Need
Where it is safe to do so, you can take ownership of your dispute. Whether you agree, partially agree or don’t agree at all. You can mediate at any stage, as many times as you need. It is time we started thinking differently about family law disputes.
Identifiable Legal Error
Before filing, you need to identify a specific jurisdictional error in the ART's decision — a legal mistake that materially affected the outcome. Examples include failing to consider relevant evidence, applying the wrong legal test, or denying procedural fairness.
Experienced Legal Representation
The Minister's lawyers will actively defend the decision. Judicial review is a technical area of administrative law — experienced legal representation is not optional, it is essential to identifying the right grounds and presenting them effectively to the Court.
Understand the Costs Risk
Before filing, you must understand the financial consequences of an unsuccessful application. If the Court rules against you, a substantial costs order in the Minister's favour is likely. Aran Legal provides a frank assessment of prospects before any application is filed.
Suitability
Judicial Review Is Not Appropriate If…
You simply disagree with the outcome — judicial review is not an appeal on the facts. The Court will not reconsider whether the decision was the right one.
You want to submit new evidence — the Court only reviews the material that was before the original decision-maker. New evidence plays no role in judicial review.
You have missed the 35-day filing deadline without exceptional circumstances — the Court's discretion to extend this period is very narrow.
No identifiable legal error can be found in the ART's decision — pursuing judicial review without clear grounds exposes you to significant costs and is unlikely to succeed.
BOOK A CONSULTATION
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Australian visas - what you need to know
Some of the most common types of visas for people looking to migrate to Australia:
- Partner visas: These can include visas for your fiancé, married, or de-facto partner.
- Family visas: These visas can include adoption, carer, dependent relative, and more.
- Parent visas: The requirements for each parent visa type differ; there are key eligibility requirements that apply to all applicants.
- Work and skilled visas: These can include temporary and permanent visas for both regional and metropolitan areas. These are online temporary visas.
- Protection visas: These can allow you to stay in Australia if you fear returning to your home country.