Jurisdictional Error in Migration Cases: When Judicial Review May Be Possible
Updated September 2026. Losing at the Administrative Review Tribunal does not automatically mean the Court can reconsider whether you should receive a visa. Migration judicial review is concerned with legal error, particularly whether the decision was affected by jurisdictional error.
For court advice, see our Judicial Review service.
What is jurisdictional error?
The Federal Circuit and Family Court explains that it can review certain migration decisions only to determine whether jurisdictional error has been made. A jurisdictional error is a serious legal error that means the decision-maker failed to exercise the power according to law.
Examples of potential judicial review grounds
Depending on the facts and law, alleged errors may include:
- denial of procedural fairness;
- failing to consider a legally required matter;
- considering an irrelevant matter in a legally impermissible way;
- asking the wrong legal question;
- misunderstanding the statutory test;
- legally unreasonable decision-making; or
- failure to deal with a substantial, clearly articulated claim where the law required it.
Disagreement with factual findings by itself is usually not enough.
Can the Court grant the visa?
Generally, the Court does not substitute its preferred migration outcome. If jurisdictional error is established, the usual remedy is to set aside the affected decision and send the matter back to be decided according to law.
What is the filing deadline?
The Federal Circuit and Family Court states that a migration judicial review application generally must be filed within 35 days of the migration decision. An extension can be sought, but should not be assumed.
What documents should a lawyer review?
- the ART or ministerial decision and reasons;
- the Department refusal decision;
- hearing invitations and correspondence;
- written submissions;
- transcripts or audio where available;
- evidence said to have been overlooked; and
- the procedural history and relevant statutory provisions.
Merits review versus judicial review
ART merits review asks whether the administrative decision should be affirmed, varied, set aside or remitted within the Tribunal’s powers. Judicial review asks whether the decision was lawfully made. This distinction is central to deciding whether court proceedings have a proper legal basis.
Official court guidance
The Federal Circuit and Family Court’s Migration Law guidance explains jurisdictional error and the court process.
Need an assessment before the 35-day period expires?
Emigrate Lawyers can analyse the decision record for arguable jurisdictional error and advise whether judicial review is legally available. Contact our migration litigation team promptly.
This article is general information only and is not legal advice. Court proceedings can involve costs risks and strict procedural requirements.
Madhab Kharel
Principal Lawyer & Director, Emigrate Lawyers
Madhab Kharel is the Principal Lawyer and Director of Emigrate Lawyers, an Australian law firm assisting clients across Australia and internationally. His migration law practice includes Partner Visas, Protection Visas, visa refusals and cancellations, Administrative Review Tribunal matters, health and character issues, Schedule 3, Section 48, sponsorship limitations and employer-sponsored migration. He regularly advises clients with complex immigration histories and matters requiring detailed legal submissions and evidence strategy.
Reviewed by Madhab Kharel, Principal Lawyer
Date reviewed: 21 September 2026
