Many people use the words “appeal” and “judicial review” interchangeably, but they are very different legal processes.
What’s an appeal?
An appeal usually allows an appellate court or tribunal to,
- Review the facts;
- Review the law; and
- Accept new evidence – if the grounds for doing so are met.
In immigration law, appeals are only available in specific situations, such as certain refugee or sponsorship cases.
An appellate court or tribunal can overturn the decision of the lower court or tribunal.
What’s a judicial review?
In immigration law, a judicial review is filed at the Federal Court.
In a judicial review,
- The Federal Court doesn’t re-hear your case from the beginning; and
- The Federal Court doesn’t accept new evidence – unless it’s a procedural fairness issue.
A judicial review at the Federal Court is commenced by filing an Application for Leave and for Judicial Review.
The Federal Court can’t overturn the decision of the tribunal. Rather, the Court focuses on whether the decision was reasonable.
Why does the difference between appeal and judicial review matter?
Since judicial review is limited, the court will usually not decide your case itself.
If you win, the Federal Court normally sends the matter back to the tribunal be decided again by a different Member.
Can I choose between appeal and a judicial review?
No.
Whether you can appeal depends on the law that applies to your case. If no appeal is available, judicial review may be your only option.
How can Kabir & Alam help?
We can help you understand whether you can appeal your negative decision or whether you need to file a judicial review at the Federal Court.
Book a consultation with us today to discuss your options.