Merits Review & Judicial Appeals
A merits review allows an independent tribunal to reconsider a decision made by the Department of Home Affairs. Most migration decisions can be reviewed by the Administrative Review Tribunal (ART).
The Tribunal reviews the case afresh, meaning it can consider new evidence, updated documents, and additional legal submissions. After reviewing the matter, the Tribunal may affirm the decision, vary it, set it aside, or remit the case back to the Department for reconsideration.
Judicial review involves challenging a migration decision in the courts where a legal error may have occurred. Unlike merits review, the court does not reconsider the visa application itself but instead examines whether the decision-maker followed the correct legal process and applied the law properly.
If the court finds a legal error, the decision may be set aside and returned to the relevant authority for reconsideration according to law.
Legislative Framework
Appeals in migration matters are primarily governed by Part 5 of the Migration Act 1958. Our firm assists clients in proceedings before the Administrative Review Tribunal (ART) and the Federal Courts of Australia.
Merits review applications are conducted before the Administrative Review Tribunal, where the Tribunal reassesses the decision independently and effectively stands in the place of the original decision-maker.
Where a legal error is suspected in the decision-making process, it may be possible to pursue judicial review through the Federal Courts. In these matters, the Court examines whether the law was applied correctly and whether any jurisdictional error occurred during the decision-making process.
Strategic Breakdown
Administrative Review Tribunal (ART)
A merits review process where the Tribunal reassesses the Department’s decision and considers the case afresh. New evidence and legal submissions may be presented to seek the setting aside of the refusal or the remittal of the matter to the Department for reconsideration.
Judicial Review
Court proceedings that examine whether the Department or Tribunal made a legal error in the decision-making process. Judicial review does not reconsider the merits of the visa application but focuses on whether the decision was made lawfully.
Character Cancellations (Section 501)
Representation for individuals facing visa refusal or cancellation under section 501 of the Migration Act 1958. Matters may involve detailed legal submissions addressing issues such as criminal history, risk to the community, ties to Australia, and Australia’s international obligations.