78304 · Migration Law: Compliance And Cancellation
The Review Ladder
The second pillar of 78304 (Modules 2 and 4) is the review ladder: after an adverse decision a client climbs three rungs in order — merits review (the ART, which replaced the AAT on 14 Oct 2024; a fresh, “correct or preferable”, de novo decision that can substitute) -> ministerial intervention (the non-compellable s 351/417 power to substitute a more favourable decision; Davis — the Minister must personally consider) -> judicial review (legality only; jurisdictional error). The master distinction is merits versus judicial: a tribunal re-decides on the merits and can remake the decision; a court tests only legality and can only quash and remit — it never grants the visa. The privative clause s 474 tries to make migration decisions final, but Plaintiff S157/2002 read it down: it does not protect a decision affected by jurisdictional error (a “purported” decision is a nullity, Bhardwaj). The chapter ties in the courts and the 35-day clock, the remedies (certiorari + mandamus, or a declaration), and the gating rule that which rung is open is itself the exam issue — decided by who made the decision and whether the Act confers a review right.
What this chapter covers
- 01Three rungs in order: merits (ART) -> ministerial intervention -> judicial review
- 02Merits vs judicial: re-decide and remake vs test legality and quash-and-remit (never grants the visa)
- 03Merits review: the ART (replaced the AAT 14 Oct 2024); Pt 5 (ss 338/348); General Jurisdiction (s 500)
- 04Ministerial intervention: non-compellable s 351/417; Davis - the Minister must personally consider
- 05Judicial review: legality only; jurisdictional error (Hossain + materiality; Yusuf/Craig/SZBEL/Li)
- 06The privative clause s 474 read down by Plaintiff S157/2002; Bhardwaj (a purported decision is a nullity)
- 07The 35-day clock (ss 477/477A/486A); remedies; the gating rule - who decided + is it reviewable
Worked example: which rung is open after which decision
- +1Frame. Which rung is open is gated by who decided (delegate vs Minister-personal) and whether the Act confers a review right; run the ladder merits -> ministerial -> judicial.
- +1(a) Delegate s 116, prior notice. A delegate's decision with prior notice is merits-reviewable in the ART — the first and best rung; the ART can substitute a correct or preferable decision.
- +1(b) Minister-personal s 501(3). A Minister-personal national-interest decision has no merits review; the avenues are ministerial intervention (non-compellable; Davis — personal consideration) and judicial review for jurisdictional error (s 476A, FCA).
- +1(c) Ignored a key claim. Failing to consider a key claim is a likely jurisdictional error (cf SZBEL); after exhausting any merits review (FedCFamC requires merits first), judicial review lies, and s 474 will not protect a JE-affected decision (S157; Bhardwaj).
- +1Clocks. Note the 35-day time limit for judicial review (extendable in the interests of justice) and the separate ART lodgement period — advise on time limits in each.
- +1Conclude. (a) ART merits review; (b) ministerial intervention plus JR for jurisdictional error; (c) JR for jurisdictional error after any required merits review — each gated by who decided and whether the Act allows review.
Key terms
- Merits review (the ART)
- Review on the merits by the Administrative Review Tribunal, which replaced the AAT on 14 Oct 2024. The ART makes a fresh, correct-or-preferable decision de novo and can substitute its own decision. It is available only where the Act confers a review right (Pt 5 ss 338/348; General Jurisdiction s 500).
- Ministerial intervention
- The non-compellable powers (ss 351/417) to substitute a more favourable decision in the public interest; two-stage, no reasons required. Davis [2023] HCA 10 held the Minister must personally consider a request rather than having it triaged out by officials; a first request usually attracts a bridging visa E.
- Judicial review
- Review of legality only, on the ground of jurisdictional error (a material breach — Hossain). It is conducted by the courts (s 75(v) High Court; s 476A Federal Court; s 476 FedCFamC, which requires merits to be exhausted first). A court can quash and remit but never grants the visa itself.
- Privative clause (s 474)
- A clause purporting to make migration decisions final and conclusive. Plaintiff S157/2002 read it down: it is valid but does not protect a decision affected by jurisdictional error, because such a 'purported' decision is a nullity (Bhardwaj).
- Jurisdictional error
- A material breach that takes the decision outside the decision-maker's authority (Hossain). Recognised species appear in Yusuf, Craig, SZBEL and Li; the applicant bears the onus. It is the touchstone for judicial review and the reason the privative clause cannot save a flawed decision.
The Review Ladder FAQ
What is the difference between merits review and judicial review?
Merits review (now the ART) re-decides the matter on the merits and can substitute a correct or preferable decision — it stands in the shoes of the original decision-maker. Judicial review tests only the legality of the decision (jurisdictional error) and can only quash it and send it back to be decided again; a court never grants the visa. Knowing which is available, and in what order, is itself an exam issue.
Which review avenue is open after which decision?
It is gated by who decided and whether the Act confers a review right. A delegate's reviewable decision with prior notice usually goes to the ART on the merits. A Minister-personal decision (for example s 501(3)) or a mandatory s 501(3A) cancellation has no merits review — the routes are ministerial intervention and judicial review for jurisdictional error. The FedCFamC requires merits review to be exhausted first.
Does the privative clause s 474 stop judicial review?
No, not for jurisdictional error. Plaintiff S157/2002 read s 474 down: it is valid but does not protect a decision affected by jurisdictional error, because such a decision is regarded as a nullity (Bhardwaj). So a decision tainted by jurisdictional error can still be challenged in the courts despite the privative clause.
How long is there to seek judicial review?
The time limit is 35 days from the date of the migration decision (notification is generally irrelevant to the calculation), and a court may extend it in the interests of justice. The remedies on success are certiorari to quash and mandamus to remit (redo according to law), or a declaration — but quashing a refusal does not itself grant the visa.
Exam move
Treat 'which avenue is open' as a question in its own right, because half the subject turns on it. Run the ladder in order — merits (the ART) -> ministerial intervention -> judicial review — and gate it on who decided (delegate vs Minister-personal) and whether the Act confers a review right (no merits review for Minister-personal or mandatory s 501(3A) decisions). Keep the master distinction crisp: tribunals re-decide and remake; courts test legality and only quash and remit. For judicial review, anchor on jurisdictional error (Hossain and materiality; Yusuf/Craig/SZBEL/Li) and on s 474 read down by S157 (Bhardwaj — a purported decision is a nullity), and always advise on the 35-day clock and the available remedies. Currency matters here too: it is the ART, not the AAT, from 14 Oct 2024.
