Merits review (ART)
The ART considers the decision fresh. It can substitute its own decision. New evidence can be presented. The question is whether the visa should be granted on the full circumstances.
Federal Circuit Court · Legal Error Review
Judicial review at the Federal Circuit and Family Court.
If the ART has affirmed a visa refusal or cancellation, your options narrow. Judicial review at the Federal Circuit and Family Court is sometimes the next step, but it is very different from the merits review that the ART provides. This page explains when judicial review is appropriate, how it works, and what it costs.
Handled by Prateek Maan, Immigration Lawyer
Admitted in Victoria & Queensland
The critical difference
Judicial review is not merits review.
This is the single most important concept to understand. Most applicants who consider judicial review find that their dissatisfaction with an ART decision is about the merits, not the law.
Judicial review (Federal Court)
The court considers only whether the decision-maker made a legal error. The court cannot substitute its own decision on the merits. The question is whether the process was lawful, not whether the decision was correct on the evidence.
What this means practically
Judicial review is much narrower than ART review. Many matters that would succeed at ART cannot succeed at judicial review because they are about the merits, not the law.
When judicial review is appropriate
Three scenarios where it fits.
Most applicants who think they need judicial review actually need merits review they did not know about, or one of these three specific situations applies.
ART affirmed and legal errors exist
After an ART decision affirming refusal, judicial review at Federal Circuit Court looks for legal errors in the ART's decision. The merits have been decided; the law is what remains.
Decision has no ART review rights
Some decisions (certain Ministerial Section 501 decisions, certain offshore visitor visa decisions) have no ART review. Judicial review is the only available review.
Tight deadline makes ART impractical
Occasionally judicial review is used where ART review was not available at the time for deadline reasons. Rare but real.
Grounds for judicial review
Legal error, not bad decision.
The grounds for judicial review are narrow. Each one requires demonstration that something went wrong in law, not that the outcome was harsh or wrong on the evidence.
Jurisdictional errorThe decision-maker exceeded their jurisdiction or failed to exercise jurisdiction they were required to exercise. The most common ground.
Denial of procedural fairnessThe decision-maker did not follow proper process. Adverse information was not put to the applicant for comment, or the decision-maker was biased.
Failure to consider relevant mattersThe decision-maker failed to consider matters the law required them to consider. A concrete, legal failure.
Consideration of irrelevant mattersThe decision-maker took into account matters that the law required them to ignore.
Wrong legal test appliedThe decision-maker applied the wrong legal test, or misunderstood the correct test.
Illogical or unreasonable findingsThe decision contains factual findings that no reasonable decision-maker could have reached on the evidence.
The judicial review process
From filing to judgment.
Judicial review is court litigation. The process is more structured and more formal than the ART.
35-day deadline
35 days from the date of the ART decision for most matters. Some Ministerial decisions have different deadlines. Strict.
Court filing & directions
An originating application is filed at the Federal Circuit and Family Court. Directions hearings set the schedule for affidavit material and legal submissions.
Hearing & judgment
A court hearing where legal arguments are heard. Witness evidence is rare. The court either dismisses the application or sets aside the decision. If set aside, the matter is usually sent back to the ART or Department for redecision.
The realistic cost and outcome
Slow, expensive, harder to win. Sometimes still worth it.
Judicial review is the right answer in some cases. It is the wrong answer in many more. Understanding the realistic picture before filing matters.
Cost higher than ART
Judicial review is more expensive than ART review. Filing fees, barristers' fees, and solicitors' fees all apply. For losing parties, there is usually a risk of cost orders against them.
Lower success rate
Success rates are lower than at ART because the grounds are narrower. Legal error has to be identified and argued. Many ART decisions, even ones that feel wrong, are not legally erroneous.
Longer timeline
Judicial review takes many months, sometimes over a year. During that period, the applicant's legal status depends on the visa situation, and bridging visa arrangements may or may not continue.
Judicial review is a check on decision-making, not a second merits review.
It exists because Australian administrative law recognises that even tribunals can make legal errors. The Federal Circuit Court provides an important check. But it is not an easy option. Most applicants who consider judicial review find that their dissatisfaction with an ART decision is about the merits, not the law. Only some cases have the legal error profile needed to succeed.
How we handle judicial review
Four things every case needs.
Judicial review is specialist work. It is handled by Prateek Maan, our immigration lawyer, with barristers briefed where matters proceed to hearing.
Legal assessment before filing
Not every adverse decision supports judicial review. Prateek assesses decisions for legal errors before recommending filing. Honest advice comes first.
Coordination with barristers
Judicial review hearings usually involve barristers. We brief specialist migration barristers for these matters and coordinate the case strategy.
Bridging visa management
Status and bridging visa arrangements during judicial review need careful management. We track deadlines and manage applications to keep the applicant's status protected.
Common judicial review questions
The questions we hear most.
For a specific legal error assessment of your ART decision, book a consultation with Prateek Maan.
Is judicial review cheaper than ART review?
No. Judicial review is more expensive than ART review because of court fees, barristers' fees, and the additional legal work involved. It is also harder to win.
Can I present new evidence at judicial review?
Generally no. Judicial review looks at the legal decision-making process, not the merits. New evidence is usually not relevant. This is one of the biggest differences from ART review.
What happens if I win judicial review?
The court sets aside the decision. The matter is usually sent back to the ART or Department to decide again according to law. A win at judicial review does not automatically mean a visa grant.
What if I lose judicial review?
The decision stands. Further appeals to the Federal Court and beyond are possible but increasingly difficult. Ministerial intervention may be the final remaining avenue. Cost orders against the losing party may apply.
Some information on this page has been sourced from the Department of Home Affairs and has been interpreted and approved by Principal Migration Agent Sourabh Aggarwal (MARN 1462159). Last reviewed: May 2026.