Even offshore visa applicants have access to judicial review in the court

Every offshore visa applicant, for either temporary or permanent visas, can challenge any adverse visa decision in the Australian courts.

Every officer of the Department of Immigration is subject to the supervision of the Australian courts, irrespective of whether the officer is onshore or offshore or is a locally engaged officer offshore. Any person making a decision about a visa no matter who he or she is (including the Minister personally) can be challenged in a court.

For example any and all offshore student visa applicants can challenge a student visa refusal in the Federal Circuit and Family Court! Or any subclass 188 visa applicant lodging a business visa application while offshore can similarly challenge a visa refusal in the Federal Circuit and Family Court.

However, there is a complex web of rules riddled with quick sand, as to which court has jurisdiction and it varies depending on which visa.

In some cases only the High Court has jurisdiction! That is, in order to challenge some decisions by a delegate, it is necessary to commence proceedings, directly in the High Court.

One example is, any permanent resident visa, where the visa applicant is offshore and the visa is a visa which can be granted when the applicant is either on-shore or offshore.

Recently the writer commenced proceedings directly in the High Court for a subclass 132 visa offshore visa applicant, who was refused a visa while he was offshore. Ultimately the High Court ruled in the applicant’s favour and set aside the visa refusal.  There was no other court to go to! The High Court could not remit the case to any other court because no other court, other than the High Court had jurisdiction! [See Nguyen & Ors v Minister for Immigration, High Court of Australia, C1/2022]

The other area where only the High Court has jurisdiction is where a person lodged a visa application when present in Australia then had the visa application refused while in Australia but left Australia before lodging an application in the Administrative Appeals Tribunal (AAT). This happened to the unfortunate applicant in Gajjar HC Matter No B37 of 2012.

The lesson from Gajjar is always apply to the AAT BEFORE leaving Australia – see s347(3) of the Migration Act, which states:

(3)  If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

Thirdly, if one misses the unextendible time limit for lodging a review application to the AAT then the only avenue of review is by a direct application to the High Court. This happened in the important decision of  Berenguel v Minister for Immigration and Citizenship [2010] HCA 8.

One has to have a certain level of confidence in the strength of one’s case, to apply directly to the High Court for judicial review!

Note the time limit for lodging an application to the High Court and any other court, is 35 days (see s486A) and noting that in all judicial review, time runs from the date of decision, NOT from the date of receipt of the decision. All courts have power to extend the time if “it is necessary in the interests of the administration of justice”.

Of course, wherever possible one should position a visa applicant’s situation to always have access to merit review in the AAT. For example I always very strongly advise subclass 188 visa applicants to come to Australia and be present in Australia when lodging the visa application. Then I also strongly require the clients to always have in place the visa ability to return to Australia in the event of a visa refusal in order NOT to be caught by s347(3) of the Migration Act. For example of a subclass 188 visa is refused at the moment when the applicant was offshore, the visa applicant could return to Australia and lodge an application for review to the AAT.

Generally this is not possible for offshore student visa applicants. Rarely would a student visa applicant get a visa to come to Australia temporarily before visa grant (apart of course form visa applicants from developed countries where an ETA is possible or a ‘European E visa).

Judicial review has far less scope than merit review. In judicial review, generally no new evidence can be produce and the court acts in its supervisory jurisdiction only. In contract the AAT hears the case afresh on the merits and new evidence can be called. However like the visa applicant in Nguyen & Ors v Minister for Immigration, High Court of Australia, C1/2022, the ability to go to the High Court to correct an error by the delegate saved the day!

In summary at the risk of oversimplification, every onshore visa application has access to merit review in the AAT provided the applicant, ‘is physically present in the migration zone when the application for review is made”.

Some visa applicants like those for an ENS visa or permanent residence skilled visa, if the application is lodged offshore, they have to be present in Australia both at time of visa refusal and when lodging in the AAT in order to lodge a valid AAT application, see s347(3A) which reads:

(3A)  If the Part 5-reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non-citizen who:

(a)  was physically present in the migration zone at the time when the decision was made; and

(b)  is physically present in the migration zone when the application for review is made.

Note that s338(7A) states:

(7A)  A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if:

(a)  the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and

(b)  the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.

Rarely would one be able to predict when a visa decision is made by the delegate, so for these people, for all practical purposes, there is no merit review, the only avenue of review is judicial review, directly to the High Court.

Returning to cases where a person missed a time limit to seek merit review in the AAT, again the only avenue is judicial review directly in the High Court. There is a short opening between the expiration of 21 days and the 35 day time limit to lodge in the High Court, where no extension of time is necessary.

Beyond the 35 days, the applicant would need an extension of time. Generally if the application for judicial review has merit the High Court would grant an extension of time.

So, if an offshore visa applicant has a visa refused, it is a set back, but it may not be fatal, if there are proper grounds for judicial review, the courts may come to rescue.

The High Court decisions can be found here: Nguyen & Ors v Minister for Immigration, High Court of Australia, C1/2022 and Gajjar HC Matter No B37 of 2012.