Administrative Law Experts in Sydney

What is Administrative Law?

Administrative law is a body of law that governs the decision-making process of the executive government. A foundation of administrative law is a principle known as procedural fairness or natural justice.

Most administrative government decisions are reviewable either by its own body, or a different body, or courts. A review of the merits of the decision is called “merits review”, and a review of the legality of the decision is called “judicial review”.

THE ROLE OF ADMINISTRATIVE LAW IN MIGRATION

Migration law and administrative law frequently overlap because every migration decision is also an administrative decision. Therefore, administrative law principles apply. For instance, a decision that a person does not meet the criteria for the grant of a visa may not be a valid decision if the person was denied procedural fairness or if there was one or more legal errors that materially affected the decision-making process.

In immigration law, merits review of the Minister’s or their delegate’s decisions are conducted by the Administrative Review Tribunal (ART), subject to its jurisdictional limits. The ART is an independent body that decides each case afresh but is bound by the same law. Not all migration decisions are reviewable by the ART.

Decisions of the ART are reviewable by the federal courts. However, courts can only determine the legality of the Tribunal decisions. Courts cannot re-evaluate the merits of the case. Determining the legality of a Tribunal decision requires careful legal analysis.

WHAT IS PROCEDURAL FAIRNESS?

Procedural fairness, or natural justice, is a legal principle that requires the decision-making process to be fair. This principle focuses on the process, rather than the outcome. This is relevant when making a court application.

Procedural fairness is built on two key legal principles:

1. The Hearing Rule

The hearing rule requires that the aggrieved party be given a fair opportunity to make their case. In immigration law, an oral hearing is not guaranteed but there are circumstances where it may be procedurally unfair not to afford one. Additionally, if a decision-maker is to rely on adverse information in making an unfavourable decision, there are technical requirements that they must follow to ensure procedural fairness is afforded.

2. The Rule Against Bias

This rule requires that decision-makers remain impartial and are capable of persuasion. There are two types of bias:

- Actual Bias: When the decision-maker has pre-determined their decision subjectively and cannot be persuaded otherwise.
- Apprehended Bias: When the decision-maker can be seen as lacking impartiality by a reasonable observer. This type of bias may be presumed if there is evidence of conflict, or apparent through careful analysis of their decision and conduct.

OTHER LEGAL ERRORS

Denial of procedural fairness is not the only error that renders a decision invalid. Courts have recognised other types of error including, but not limited to:

Failure to consider relevant information
Consideration of irrelevant information
No-evidence-based findings
Legal unreasonableness
Asking the wrong question

Frequently Asked Questions

This depends on various factors, namely the decision maker, time of refusal or cancellation, the location of the visa applicant or visa holder or sponsor, and who has the right of review. Decisions of delegates of the Minister would usually be reviewed by the ART, although this is not always the case. Another form of review is judicial review. Which forum is appropriate depends on the individual case and circumstances.

We can help you navigate the appeal process, so you don’t waste your time, money and opportunity to be heard.

No. For appeal to courts, we charge a consultation fee which usually takes up to one hour. During this consultation, we read the decision that you want to challenge. The purpose of the consultation is to understand your options and for us to advise you at high level whether your case and circumstances justify a more detailed analysis of your entire file.

The first stage is consultation with our lawyer, followed by a deeper analysis of your file, and if appropriate, a second opinion by a barrister. Each step is designed so that our clients only pay more when there is an objective reason that justifies going further. This structure is important to reduce the risk of running a case that is unlikely to succeed and could potentially cost even more.

We have an obligation to give proper consideration to the prospects of success of our client’s case and certify it in writing before starting a migration litigation.

Yes, we do. We take all kinds of judicial review cases, in both State and Federal courts.