Abstract: Does losing at the AAT (Administrative Appeals Tribunal) mean your immigration journey is over? Not always. 'Judicial Review' in the Federal Court is the final legal pathway, but it is fundamentally not another appeal. It is a challenge to the 'legal errors' in the AAT's decision-making process. This article deeply analyses the nature of judicial review, "jurisdictional error," the strict 35-day time limit, and the high risks of this action.
This is the most critical concept to understand when considering a Federal Court application. Many people mistakenly believe this is a "third appeal" where they can re-submit evidence the AAT didn't believe. This is a fatal error.
AAT Appeal = Merits Review
The AAT acts as the "new referee." It re-examines all the facts and evidence of your case (including new evidence), "stands in the shoes" of the original visa officer, and decides what the "correct" decision should be. You can argue, "my relationship is genuine" or "my GTE is genuine."
Federal Court Application = Judicial Review
The Federal Court acts as the "referee of the referee." The court does not care if your relationship is genuine and will not look at your new evidence. The court reviews only one thing: Did the AAT Member, in the process of deciding your case, make a legal error?
To use an analogy: The AAT is a re-play of the entire game. The Federal Court is a review of the AAT's (the referee's) "call" to see if it broke the rules of the game.
A Federal Court judge does not have the power to grant you a visa.
The best possible outcome you can achieve in a judicial review is:
In other words, you are fighting at great cost and risk for a "second chance" at the AAT.
You cannot go to court simply because you "disagree with the AAT's conclusion" or "the AAT Member didn't believe me." You must prove, as a matter of law, that the Member made a "Jurisdictional Error" serious enough to invalidate the entire decision.
"Jurisdictional Error" is a highly complex legal concept. Here are some common (but very difficult to prove) examples:
Denial of Procedural Fairness
This is the most common ground of appeal. For example, the AAT Member refused your visa based on a new issue that was never raised at the hearing or giving you a chance to respond to it. The law requires a decision-maker to put you on notice of critical issues adverse to your case.
Misunderstanding or Misapplying the Law
The AAT Member clearly misunderstood the meaning of a legal provision. For example, they applied the wrong legal test for a Schedule 3 waiver or misinterpreted a clause of the "character test."
Irrational or Illogical Decision
This is an extremely high bar. You must prove the Member's conclusion was so unreasonable or illogical that no rational, legally-trained decision-maker could have ever reached it. It is not enough for the decision to be "weak" or "unconvincing."
Failure to Consider Relevant Evidence / Considering Irrelevant Evidence
You must prove the Member completely ignored a critical piece of evidence central to your case (not just "failed to mention it" in the written decision), or that the decision relied on a factor that was legally irrelevant.
Judicial review is not an "application"; it is "litigation." It comes with extreme risks and costs.
You have exactly 35 days from the date of the AAT's decision to file your application for judicial review with the Federal Circuit and Family Court (FCFC). This time limit is statutory and non-extendable. If you miss it by one day, your legal road ends.
This is no longer in the realm of a migration agent. You require a specialist legal team (Solicitor) and a Barrister (a court advocate) who specializes in migration litigation. The costs for the entire process, from filing to a final hearing, can be many multiples of an AAT appeal.
This is the greatest financial risk. If you lose in the Federal Court, you will almost certainly be ordered by the court to pay the legal costs of the other side (the Minister for Immigration). This "costs order" can be tens of thousands of dollars, which is in addition to your own legal fees.
Judicial review is absolutely not for every AAT loss. It is reserved for the rare cases where the AAT's written decision contains a clear and arguable legal flaw.
If you are unhappy with an AAT decision, your first step is not to rush to court. Your first step is:
Immediately (within the 35 days) take your AAT decision record to a specialist legal team (including a Barrister) for a professional assessment.
Only if a legal expert reviews the decision and forms an opinion that a "jurisdictional error" exists and the case has "reasonable prospects of success" should you consider initiating this high-risk process.
Judicial review in the Federal Court is the most complex, high-level, and adversarial area of migration law litigation. It is not a "re-hearing." It is a precise, high-stakes "legal surgery" intended to excise a legal error from an AAT decision.
The Immigix team specialises in assessing and managing judicial review applications after an AAT loss. If you have received a negative decision from the AAT, time is your greatest enemy. Contact us immediately for an urgent legal assessment of your decision.