Review Rights – Federal Courts, High Court and the Commonwealth Ombudsman

Federal Court of Australia and the Federal Circuit Court

The Federal Court conducts judicial review of some migration decisions.  This means that it can determine whether a decision is unlawful and, if so, order the decision maker to remake the decision.  Judicial review is very complex and normally requires the assistance of an experienced lawyer. The Federal Circuit Court also has jurisdiction over immigration and refugee matters.

High Court of Australia

The High Court of Australia is the final court of appeal in Australia. There have been several important decisions that have come down from the High Court bench concerning refugee rights and the interpretation of immigration legislation. The High Court will only consider a case if there is an important point of law to consider. For example, in one refugee case, the High Court considered the validity of indefinite detention, – being held in custody with no known release date. This was an important legal issue because it raised questions about the Constitution, and whether the indefinite detention of asylum seekers violated the Australian Constitution.

Commonwealth Ombudsman

The Commonwealth Ombudsman can review a decision made by the Immigration Department when some mal-administration has occurred.  However, the Ombudsman cannot substitute their decision for that of the Department.  They may only recommend corrective action if they believe that there has been some failures in the administration of departmental policy.  Their recommendations can include stating that the action was unreasonable or oppressive or that there was undue delay in making the decision.

The Ombudsman can not review the action taken by the Minister but can investigate a recommendation made by the Department to the Minister.

Any person who is adversely affected by a decision has a right to complain to the Ombudsman, even if there is no right of appeal to the MRT, RRT, AAT or Federal Court. An overseas applicant affected by an adverse decision may also complain.  The overseas complainant need not be an Australian citizen or permanent resident of Australia.