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: The primary legal framework includes which covers Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) which covers s 5(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 which covers constitutional writs (certiorari, mandamus, prohibition) for jurisdictional error, Migration Act 1958 (Cth) s 476A which covers judicial review of migration decisions in the Federal Court, Migration Act 1958 (Cth) s 477 which covers 35-day time limit for migration judicial review applications (extensions only for 'special reasons'), Migration Act 1958 (Cth) s 78 which covers Bridging Visa E provisions during judicial review, Federal Court of Australia Act 1976 (Cth) which covers court procedures and powers, Federal Court Rules 2011 Part 33 which covers originating applications for judicial review, Administrative Review Tribunal Act 2024 (Cth) which covers 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.
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 typical workflow involves examining the ART written reasons for jurisdictional error, researching relevant case law and precedent, obtaining counsel's opinion on prospects, advising the client on costs risks (adverse costs orders typically $5,000-$15,000), securing a Bridging Visa E if the applicant is unlawful, drafting and filing the Originating Application and supporting affidavit, serving on the Minister (via AGS) and ART, applying for interlocutory injunction if removal is imminent, attending directions hearings, filing written submissions, attending the judicial review hearing, and 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.
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.
Adverse costs orders in migration judicial review are typically $5,000-$15,000 payable to the Minister.
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.
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.
Migration matters: 35-day deadline under s 477 Migration Act 1958 (Cth). Non-migration matters: 28-day deadline under ADJR Act 1977.
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.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.
The test for an interlocutory injunction is the Beecham test (Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1): (a) there must be a 'serious question to be tried' - the grounds of jurisdictional error must have sufficient merit (not merely frivolous or vexatious) (b) the 'balance of convenience' must favour the grant of the injunction - removal from Australia is typically irreversible and damages are rarely an adequate remedy (MZAPC v Minister for Immigration [2025] HCA 5 confirmed the court's power to restrain removal to protect the integrity of its processes).
The Minister concedes jurisdictional error in approximately 10-15% of migration cases. Model litigant obligations under the Legal Services Directions 2025 require the Department not to defend indefensible proceedings. If conceded, seek consent orders for remittal - this avoids a contested hearing and costs exposure.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
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.
Key authorities: Minister for Immigration v Li [2013] HCA 18 (failure to consider relevant consideration = jurisdictional error). SZFDE v Minister for Immigration [2007] HCA 35 (fraud vitiating tribunal process). Plaintiff M70/2011 v Minister for Immigration [2011] HCA 32 (construing statutory preconditions strictly).