Migration Reform Act 1992

Subject to subsection (2), the following decisions are judicially-reviewable decisions:

decisions of the Immigration Review Tribunal;

decisions of the Refugee Review Tribunal;

other decisions made under this Act, or the regulations, relating to visas.

a decision in relation to a criminal justice visa or a criminal justice certificate within the meaning of Division 3 of Part 2;

an internally-reviewable decision;

an IRT-reviewable decision;

an RRT-reviewable decision;

a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 115F, 121, 150L, 166BD or 166HL;

a decision of the Principal Member of the Immigration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;

a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 150C or 166HB.

Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

that the person who purported to make the decision did not have jurisdiction to make the decision;

that the decision was not authorised by this Act or the regulations;

that the decision was an improper exercise of the power conferred by this Act or the regulations;

that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

that the decision was induced or affected by fraud or by actual bias;

that there was no evidence or other material to justify the making of the decision.

that a breach of the rules of natural justice occurred in connection with the making of the decision;

that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

an exercise of a power for a purpose other than a purpose for which the power is conferred; and

an exercise of a personal discretionary power at the direction or behest of another person; and

an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

taking an irrelevant consideration into account in the exercise of a power; or

failing to take a relevant consideration into account in the exercise of a power; or

an exercise of a discretionary power in bad faith; or

any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

If:

a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

there is no provision that specifies a period within which the person is required to make the decision; and

the person has failed to make the decision;

a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

there is a provision that specifies a period within which the person is required to make the decision; and

the person has failed to make the decision before the expiration of that period;

An application under section 166LB or 166LC must:

be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

if the judicially-reviewable decision is covered by paragraph 166LA(1)(a) or (b)—the Minister or the applicant in the review by the relevant Tribunal; or

if the judicially-reviewable decision is covered by paragraph 166LA(1)(c)—the person who is the subject of the decision.

if the judicially-reviewable decision is covered by paragraph 166LA(1)(a) or (b)—the applicant in the review by the relevant Tribunal; or

if the judicially-reviewable decision is covered by paragraph 166LA(1)(c)—the person who is the subject of the decision.

On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

an order declaring the rights of the parties in respect of any matter to which the decision relates;

an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

an order directing the making of the decision;

an order declaring the rights of the parties in respect of any matter to which the decision relates;

an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

Subject to this section, the making of an application under section 166LB to the Federal Court in relation to a judicially-reviewable decision does not:

affect the operation of the decision; or

prevent the taking of action to implement the decision; or

prevent the taking of action in reliance on the making of the decision.

is subject to such conditions as are specified in the order; and

has effect until:

if a period for the operation of the order is specified in the order—the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

if no period is so specified—the giving of a decision on the appeal.

a person has, in the performance of the duties of an office, made a judicially-reviewable decision; and

the person no longer holds, or, for whatever reason, is not performing the duties of, that office;

the person for the time being holding or performing the duties of that office; or

if there is no person for the time being holding or performing the duties of that office or that office no longer exists—such person as the Minister specifies.

The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding under this Part.

In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 166LA(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.