What Is the Difference Between Tribunal Review and Judicial Review?

What is Tribunal review of a partner visa refusal?

Tribunal review of a partner visa refusal is a fresh look at the whole case by the Administrative Review Tribunal, which can exercise the same powers as the Department's decision maker. The Tribunal considers the evidence at the time of its own decision, so the applicant can give new evidence, attend a hearing and answer the concerns raised in the refusal. Our guide to the partner visa ART review process explains each stage.

What is judicial review of a migration decision?

Judicial review of a migration decision is a court process that examines whether the decision maker acted within the law. The court looks for legal errors such as misunderstanding the legal test, failing to consider a claim, denying procedural fairness or reaching a decision that is legally unreasonable. The court does not decide whether the relationship is genuine. Our article on partner visa judicial review explains the grounds in more detail.

Which comes first, Tribunal review or judicial review?

Tribunal review comes first for a partner visa refusal by the Department, because merits review is the normal path where it is available. Judicial review is generally used after the Tribunal has decided, to challenge the Tribunal's decision for legal error. Both have short time limits that are strictly applied, so the order of steps and the deadlines should be confirmed as soon as a decision arrives. Tribunal review is also usually the better forum for most partner visa disputes, because refusals most often turn on the evidence about the relationship rather than on a legal error. Losing at the Tribunal does not automatically mean a legal error exists, and judicial review is not a second chance to argue the facts.

Can new evidence be given in judicial review?

New evidence about the relationship generally cannot be given in judicial review, because the court reviews the lawfulness of the decision on the material that was before the decision maker. This is the most important practical difference from Tribunal review. Couples who want to rely on new relationship evidence usually need the Tribunal, a fresh application or another path. Our article on ART evidence for a partner visa explains what can be given at the Tribunal stage.

What happens if judicial review succeeds?

If judicial review succeeds, the court usually sets aside the Tribunal's decision and sends the case back to the Tribunal to be decided again according to law. The new Tribunal decision may still be unfavourable if the evidence does not support the visa. Judicial review therefore resets the review rather than delivering a visa, as our article on partner visa refused appeal options explains.

How does My Migration Lawyers advise on Tribunal and judicial review?

My Migration Lawyers acts in Tribunal reviews of partner visa refusals, preparing submissions and evidence and attending hearings. After an unfavourable Tribunal decision, the firm assesses whether the decision may involve legal error and advises on the realistic options, including a new application or ministerial intervention where available. Couples can learn more about our partner visa refusals work and our wider visa refusals practice.