Decisions under Administrative Decisions (Judicial Review) Act
Under the Administrative Decisions (Judicial Review) Act 1977, the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) can review a decision made by a person exercising a ‘public function’ on any one or more of the following grounds:
- that a breach of the rules of natural justice occurred in connection with the making of the decision
- that procedures that were required by law to be observed in connection with the making of the decision were not observed
- that the person who purported to make the decision did not have jurisdiction to make the decision
- that the decision was not authorised by the enactment in pursuance of which it was purported to be made
- that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made
- that the decision involved an error of law, whether or not the error appears on the record of the decision
- that the decision was induced or affected by fraud
- that there was no evidence or other material to justify the making of the decision
- that the decision was otherwise contrary to law.
Appeals from the Administrative Review Tribunal
The Federal Court may, on your application or on its own initiative, transfer to the FCFCOA any proceeding that is an appeal from the Administrative Review Tribunal (ART). FCFCOA will then have power to make orders in the case even if it would not otherwise have jurisdiction (section 179(4) of the Administrative Review Tribunal Act 2024).
The Federal Court may transfer to the FCFCOA an appeal from a decision by a member of the ART: see section 179 of the Administrative Review Tribunal Act 2024 (Cth).
I want to apply under the Administrative Decisions (Judicial Review) Act
You will need to file:
- a completed Initiating application for an order of review under ADJR: Form 66, and
- an affidavit - general federal law and migration or statement of claim or points of claim (see subrules 4.04(1) and (2)), and
- a copy of the decision you are seeking to have reviewed, and;
- any statement of reasons given with the decision.
You must file your application within 28 days from notification of the decision or of the reasons for the decision (whichever is the later). If you are out of time and want to apply for an extension of time within which to apply, you must also file:
- an Application for an extension of time, and
- an affidavit - general federal law and migration stating:
- the facts on which the application relies, and
- why the application was not filed within time.
What do I have to pay?
You will need to pay a filing fee when you file the application.
In some circumstances, you may be exempted from paying court fees, for example, if you are a concession holder. You will need to apply for the exemption, using the Application form for Exemption from Paying Court Fees – General. You can also apply for an exemption if paying court fees would cause you financial hardship. Use the Application form for Exemption from Paying Court Fees – Financial Hardship.
Filing with the FCFCOA
Wherever possible, you must file court documents online using eLodgment. You can follow these instructions on how to use eLodgment or see the Federal Court website.
If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents.
How do I notify the respondent?
Within 5 days after filing your application, you must serve a copy of each document on each other party.
You can serve the documents by delivering them in person or sending them by registered or express post.
If you cannot serve the documents in person or the documents sent by post cannot be delivered, you can apply for an order allowing you to serve the documents in a different way, for example, by email. This is known as ‘substituted service’. You make that application by filing an Application in a proceeding with an accompanying affidavit - general federal law and migration explaining why you want substituted service.
After the documents have been served, you will need to complete an affidavit of service, which you should file using eLodgment. The affidavit of service must be sworn or affirmed in front of a person authorised by law to witness the swearing of affidavits, such as a lawyer or Justice of the Peace. You should have a copy of the filed affidavit of service with you at your court hearing.
Application in a proceeding
If you want to make an interlocutory application in the proceeding before final orders have been made, you should file an Application in a proceeding. The application must be supported by an affidavit - general federal law and migration unless the evidence relied on is already before the court in an affidavit. The application and supporting affidavit must be served on all persons against whom the order is sought.
My appeal from the ART has been transferred to the Court
An appeal from a decision of the ART does not affect the operation of the decision or prevent action being taken to implement the decision.
If you want the decision to be stayed until the appeal is decided, you will need to file an Application in a proceeding seeking an order that stays the ART decision.
