Legal Project Management Plan & Checklist
Purpose of this Guide: Welcome to the specialised practitioner roadmap for referring an adverse ART decision to the Federal Court of Australia or FCFCOA for judicial review on the ground of jurisdictional error. Designed explicitly for administrative law litigators and migration law specialists, this guide covers the identification of reviewable errors, court filing procedures, interlocutory relief, and the conduct of judicial review proceedings through to judgment and appeal.
Jurisdiction: This guide applies to judicial review applications in the (FCA) and the (FCFCOA Division 2). It covers both migration and non-migration decisions. The replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024 under the .
Governing Legislation: - Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) - s 5(1)(a)-(h) grounds of review including: • breach of natural justice • failure to observe required procedures • no evidence • error of law • unreasonableness - Judiciary Act 1903 (Cth) s 39B - constitutional writs (certiorari, mandamus, prohibition) for jurisdictional error - Migration Act 1958 (Cth) s 476A - judicial review of migration decisions in the Federal Court - Migration Act 1958 (Cth) s 477 - 35-day time limit for migration judicial review applications (extensions only for 'special reasons') - Migration Act 1958 (Cth) s 78 - Bridging Visa E provisions during judicial review - Federal Court of Australia Act 1976 (Cth) - court procedures and powers - Federal Court Rules 2011 Part 33 - originating applications for judicial review - Administrative Review Tribunal Act 2024 (Cth) - ART decision-making framework
Filing Fees: FCFCOA Division 2: $4,015 full / $2,005 reduced (from 1 July 2025). Fee exemptions available for concession card holders, legal aid recipients, and persons in detention. Federal Court: verify current schedule. Additional forms are accessible via the Australia Government Portal.
Key Jurisdictional Error Grounds: The primary grounds of judicial review include: (a) Legal unreasonableness - where a failure to make obvious inquiries rises to the level of legal unreasonableness, as examined in ***eSafety Commissioner v Baumgarten [2025] FCAFC 12*** regarding the scope of s 172 review; (b) The 'no evidence' ground - constrained by the strict 'scintilla of evidence' rule, where even the smallest fragment of supporting evidence defeats the claim; (c) Procedural fairness and natural justice - failure to provide a fair opportunity to respond to adverse information; (d) Constructive failure to exercise jurisdiction. The Guidance and Appeals Panel (GAP) under Part 5 of the ART Act 2024 should be evaluated as a non-judicial alternative before pursuing Federal Court litigation.
Process at a Glance: The judicial review application must be filed within 35 days of the ART decision for migration matters (s 477 Migration Act), or 28 days for non-migration matters. The workflow covers: (1) examining the ART written reasons for jurisdictional error; (2) researching relevant case law and precedent; (3) obtaining counsel's opinion on prospects; (4) advising the client on costs risks (adverse costs orders typically $5,000-$15,000); (5) securing a Bridging Visa E if the applicant is unlawful; (6) drafting and filing the Originating Application and supporting affidavit; (7) serving on the Minister (via AGS) and ART; (8) applying for interlocutory injunction if removal is imminent; (9) attending directions hearings; (10) filing written submissions; (11) attending the judicial review hearing; and (12) receiving judgment (dismissal, or quash and remit). If unsuccessful at first instance, consider Full Federal Court appeal (leave required in migration: 21 days) or High Court special leave.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Administrative Appeal (Applicant) - Judicial Review Referral (Jurisdictional Error) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for CIVIL_LAW cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
Review ART reasons and isolate specific jurisdictional errors with reference to ADJR Act s 5(1) grounds or s 39B constitutional writs. Research precedent and obtain counsel's opinion.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
ADJR Act s 5(1) grounds of review: breach of natural justice (s 5(1)(a)), failure to observe required procedures (s 5(1)(b)), no jurisdiction (s 5(1)(c)-(d)), error of law (s 5(1)(f)), no evidence (s 5(1)(h)), unreasonableness (s 5(1)(e)/s 5(2)(g)).
Minister for Immigration v Li [2013] HCA 18 - established the 'legal unreasonableness' standard (stronger than Wednesbury unreasonableness).
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Focus on recent decisions addressing the specific type of error: e.g., for procedural fairness breaches - SZBEL v Minister for Immigration [2006] HCA 63 (issues arising during hearing); for legal unreasonableness - Minister for Immigration v Li [2013] HCA 18 (illogical or irrational findings); for failure to consider evidence - Minister for Immigration v Yusuf [2001] HCA 30 (mandatory relevant considerations).
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
The scope of judicial review under s 172 of the ART Act 2024 was examined by the Full Federal Court in eSafety Commissioner v Baumgarten [2025] FCAFC 12, which addressed the boundary between merits review and judicial review and reinforced the standard for legal unreasonableness as a ground of jurisdictional error.
Legal unreasonableness was established as a standalone ground in Minister for Immigration v Li [2013] HCA 18, going beyond the traditional Wednesbury unreasonableness test. The test asks whether the outcome is one that no rational or logical decision-maker could have reached on the evidence and submissions before them.
Draft and file the Originating Application for judicial review in the Federal Court or FCFCOA within the strict statutory deadline (35 days migration / 28 days non-migration).
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Serve the Originating Application on the Minister (via AGS) and the ART registry, attend directions hearings, and file written submissions.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
Venue selection is critical and a common procedural trap:
Filing in the wrong court wastes the limited filing window (35 days for migration, 28 days for non-migration). While transfer between courts is possible, it creates unnecessary delay and potential costs exposure.
For non-migration ART decisions, the choice between ADJR Act (Federal Court) and s 39B (Federal Court) may depend on whether the ADJR Act is excluded by a privative clause.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.
FCFCOA Division 2 filing fees (from 1 July 2025): $4,015 full / $2,005 reduced. Fee exemptions available for concession card holders, legal aid recipients, and persons in detention.
Extensions of time are rarely granted in migration matters and require demonstration of 'special reasons' - mere oversight or delay in obtaining legal advice is generally insufficient.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
The Minister concedes jurisdictional error in approximately 10-15% of migration cases. If conceded, seek consent orders for remittal - this avoids a contested hearing and costs exposure.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Many migration judicial review matters are determined substantially on the papers - the quality of written submissions is critical.