Judicial review of a migration decision: 35 days, jurisdictional error and the costs risk
Current as at 11 September 2026. The 35 day period runs from the date of the migration decision, not the date you received it. Court fees change and exemptions apply in some circumstances. This is general information, not legal advice - if you are inside a filing window, get advice this week.
When the Administrative Review Tribunal affirms a refusal, most people ask the same question: can I appeal? The answer is usually yes, but not in the way they mean. What is available is judicial review in the Federal Circuit and Family Court of Australia (Division 2), and it is a fundamentally different exercise from the review that just failed.
Understanding that difference before you file matters, because judicial review carries a real costs risk and a deadline that is measured from a date you may not be watching.
The court does not decide whether you should get the visa
This is the single most important thing to understand, and the most common misconception.
The court may only review a decision to determine whether a jurisdictional error has been made. It asks whether the decision was made according to law: whether the correct legal procedures were followed and the law was applied correctly. It is expressly not concerned with the merits of your application or with whether you should or should not be granted a visa.
| Merits review (ART) | Judicial review (Court) | |
|---|---|---|
| Question asked | What is the correct or preferable decision? | Was the decision made according to law? |
| New evidence | Generally yes | Generally no |
| Can it grant the visa? | Can substitute a decision or remit with directions | No - the usual remedy is to send it back to be decided again |
| Costs if unsuccessful | Application fee already paid | You will likely pay the Department’s legal costs |
The practical consequence: a decision can be harsh, or one you strongly disagree with, and still be perfectly lawful. Disagreeing with the outcome is not a ground. There has to be an identifiable legal error in how the decision was reached.
The 35 day deadline, and where it runs from
You must file an Originating Application - Migration Act within 35 days of the date of the migration decision.
Read that carefully. The clock runs from the date of the decision, not the date on the covering letter or email, and not the day you opened it. People routinely lose weeks assuming otherwise, and arrive at a lawyer with a fortnight of a 35 day window remaining.
The court may extend the time limit, but an extension is not a formality. If you need one, you must ask for it in the application itself and explain why, and the court decides whether to grant it. An application filed late without an extension request is in a considerably worse position than one filed late that squarely addresses the delay.
What the application has to contain
Judicial review is a pleadings exercise, and the documents do specific work:
- The application must state who prepared it.
- It must identify the jurisdictional error you say the decision-maker made. Not general dissatisfaction - the specific error.
- Your affidavit must explain all the relevant facts and circumstances relating to the alleged error.
- You must attach to the affidavit a copy of the decision under review and any statement of reasons.
The statement of reasons is the working material. Jurisdictional error is usually found in how the decision-maker reasoned, so the grounds are drafted from the reasons themselves rather than from the applicant’s account of events.
Service, and the Minister’s 28 days
Filing is not the end of the procedural obligations. After filing you must give a sealed copy of the application and supporting documents to the Minister, and in most cases to the Tribunal that made the decision. This is known as service.
Service on the Minister is effected through the Department of Home Affairs. Once served, the Minister must respond within 28 days.
Fees, and the costs risk
There is a fee to file the application and a further fee for the final hearing. Fees do not apply in some cases, for example where you hold certain government concession cards or can demonstrate financial hardship, and the current amounts and exemptions should be confirmed with the court.
The larger financial exposure is not the filing fee. Legal costs generally follow the event, which means the unsuccessful party ordinarily pays the successful party’s costs. If the court dismisses your application, you will probably have to pay the Department’s legal costs. The amount depends on the length of the case and the work done, with the scale set out in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025.
There is one mitigating feature worth knowing early: if you discontinue the case without a hearing, you will generally pay a reduced proportion of the Department’s costs. That makes an honest merits assessment at the outset genuinely valuable. Discovering at the hearing that there was never an arguable error is the most expensive way to find out.
What a win actually gets you
Applicants are often surprised by the remedy. If the court finds a jurisdictional error, the ordinary outcome is that the decision is set aside and the matter is sent back to be decided again according to law. The court does not grant the visa.
That means a successful judicial review returns you to the Tribunal or the Department, with the legal error corrected, for a fresh decision. The second decision can still go against you. This is not an argument against judicial review, it is an argument for being clear-eyed about what success looks like before you spend on it.
Is judicial review the right move?
For some refusals it is the only remaining avenue, and a genuine legal error should not go unremedied. But it is not the automatic next step after an unsuccessful ART review. Three questions are worth answering honestly first:
- Is there an identifiable error of law in the reasons, as opposed to a finding you disagree with?
- What happens if you win? If the same decision is likely on remittal, the value of the remedy is limited.
- Would a fresh application be stronger? Where the original case was thin on evidence, a properly prepared new application sometimes achieves more than litigating the old one.
If you are weighing options immediately after a decision, our guide to what to do when your visa is refused sets out the full range, and how an ART appeal works covers the merits review stage that usually comes first.
Where Rise fits in
Judicial review is technical litigation with a costs consequence, and the useful work starts with an unsentimental read of the statement of reasons. Our judicial review practice assesses whether an arguable jurisdictional error exists, confirms your filing date against the decision date rather than the covering letter, and tells you plainly when the better answer is a fresh application instead. If a tribunal decision has gone against you, book a consultation immediately - 35 days is shorter than it sounds.