Why Does the Department Have So Much Power? A History of Judicial Review in Australian Immigration
You've just opened a letter or maybe an email, and it says your visa has been refused or cancelled. And somewhere in the fine print, it says the decision is "not merits reviewable." Or maybe it was reviewable, but you missed the deadline. Nine days. Twenty-eight days. Gone. We put together an article on how to read a refusal letter.
Or maybe you went through the Tribunal, sat through a hearing, put your whole life on the table, and they still said no. And now you're sitting there thinking, "Is that it?"
Here's what makes it worse. You can see the mistake. It's right there in the decision. They got the law wrong, or they ignored something you gave them, or they made a finding that makes no sense. And you're thinking: Why are they allowed to do this? Why does the Department, or the Tribunal, or the Minister have so much power that they can get it wrong and nobody checks their work?
That question, why do they have so much power? — is actually the story of the last 25 years of Australian immigration law. And the answer might surprise you, because there was a time when the government tried to make it so that no court in the country could review their immigration decisions. They literally tried to lock the courthouse doors.
They failed. But only just. And how they failed, and what happened afterwards, determines whether you have any options right now.
First, the Basics: What Is Judicial Review?
If you've been through the Administrative Review Tribunal (ART) (or the old AAT or MRT), you've experienced merits review. That's where a fresh decision-maker looks at your whole case again with new evidence, new arguments, fresh decision. They step into the shoes of the original decision-maker and decide it from scratch.
Judicial review is completely different. A court does not re-decide your visa. It doesn't weigh the evidence. It doesn't form its own view about whether you deserve the visa. Instead, it asks one question: Did the decision-maker follow the law?
Think of it like a referee. The Department or the Tribunal is playing the game. Parliament wrote the rules. The court checks whether the rules were followed — not whether the player should have won, but whether they played the game properly. If they broke a rule: asked the wrong question, ignored evidence they were required to consider, applied the wrong legal test, the court can blow the whistle and send the game back to be replayed.
That's judicial review. It exists because in a country governed by the rule of law, nobody, not even the government, gets to make decisions outside the boundaries of their legal authority without somebody being able to check.
At least, that's the theory. The reality has been messier.
Why Would Anyone Need Judicial Review Instead of Merits Review?
Most people assume that if your visa is refused or cancelled, you can just appeal to the Tribunal. That's true for a lot of decisions, but not all of them. There are situations where merits review simply isn't available:
The Minister personally cancelled your visa under section 501 of the Migration Act on character grounds. No merits review. Judicial review is it.
The Minister personally decided under section 501BA to set aside a favourable Tribunal decision. You won at the Tribunal, and the Minister overrode it. No further merits review. Judicial review is your only option.
Your visa was refused offshore, and the decision is not reviewable by the ART. Similar article: Visa Cancelled While Offshore, What Options Do You Have?
Your refusal or cancellation notice specifically says the decision is not merits reviewable.
You had a right of merits review, but you missed the deadline. For many migration decisions, that's 28 days. If you're in immigration detention, it can be as short as 9 days. The Tribunal generally has no power to extend time for migration decisions. Once the deadline passes, merits review is gone.
You went through the Tribunal and lost, and you believe the Tribunal made a legal error.
The Department made an obvious legal error, and you don't want to spend 2–3 years waiting for the Tribunal to fix something the Department should have got right in the first place. If the error is clear, judicial review can be a faster and more direct pathway.
If any of these sound familiar, judicial review may be the only road left. And to understand your chances, you need to understand how the system got to where it is today — because the government spent years trying to make judicial review impossible.
The Government Tried to Lock the Courthouse Doors
Through the 1990s, immigration cases were flooding the courts. Protection visa applicants in particular were challenging Tribunal decisions, and the courts — doing exactly what the law required — were finding legal errors and sending cases back for fresh hearings.
The government didn't like this. Not because the courts were getting it wrong — they were applying the law correctly. But the volume of litigation was overwhelming the system. Every case sent back to the Tribunal meant another hearing, more time, more cost, and more months or years the applicant remained in Australia.
So the government's response wasn't to improve the quality of decision-making. It was to try to stop people from getting to court at all.
First, they removed immigration decisions from the general judicial review scheme (the ADJR Act) in 1994, replacing it with a narrower, more restrictive framework.
That wasn't enough. People were still getting to court.
So in 2001, the government brought out the big weapon: the privative clause.
Section 474: "Must Not Be Challenged in Any Court on Any Account"
Section 474 of the Migration Act said that virtually every migration decision was "final and conclusive," "must not be challenged, appealed against, reviewed, quashed, set aside, or called into question in any court," and was "not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."
Read that again. Must not be challenged in any court on any account. The government was trying to build a wall around immigration decisions and lock the judiciary out entirely. No court in the country — not the Federal Court, not even the High Court — was supposed to be able to touch a migration decision.
Think about what that means in practice. You're a refugee claimant. The Tribunal has made a clear legal error, maybe they misunderstood what "persecution" means, maybe they ignored country information showing you'd be in danger if returned. You go to the Federal Court, your lawyer points out the error, and the court says: "We can't help you. Section 474. The decision is final. Our hands are tied."
That wasn't hypothetical. It happened. Between 2001 and 2003, there were cases where courts turned people away — not because they didn't have a good case, but because the privative clause appeared to lock the door. People with genuine errors in their decisions, errors that could have changed the outcome, were told: there is no remedy.
The Constitution Fought Back: Plaintiff S157
In 2003, the High Court decided Plaintiff S157/2002 v The Commonwealth. Six justices held that section 474 could not do what the government wanted it to do.
The reason was the Australian Constitution itself. Section 75(v) of the Constitution gives the High Court original jurisdiction to issue writs against officers of the Commonwealth. That jurisdiction is constitutionally entrenched. Parliament cannot remove it. And its entire purpose is to ensure that Commonwealth officers — including immigration decision-makers — act within the law.
The High Court said: if a decision-maker commits a jurisdictional error — meaning they go outside the boundaries of their legal authority — then no privative clause can shield that decision from judicial review. To hold otherwise would mean Parliament could authorise government officials to act unlawfully with no judicial check at all. That is fundamentally inconsistent with the rule of law.
The doors were reopened. The constitutional safety net was restored.
But — and this is the crucial "but" — the High Court drew a line. On one side: jurisdictional error, meaning the decision-maker exceeded their legal authority. Those errors are reviewable. The privative clause can't protect them. On the other side: non-jurisdictional error, meaning ordinary errors of law that don't take the decision-maker outside their authority. Those errors are protected by the privative clause. No court can intervene.
Everything now depended on which side of that line your case fell.
Why This Matters to You Right Now
After S157, the question in every immigration judicial review case became: was the error jurisdictional? If yes, you get through the door. If no, the privative clause shuts it.
For about 15 years — from 2003 to 2018 — courts were generous about what counted as jurisdictional error. If the decision-maker asked the wrong question, ignored relevant evidence, relied on irrelevant material, denied you procedural fairness, or acted unreasonably, that was a jurisdictional error. Most legal errors are qualified.
Then, in 2018, the High Court changed the game again. In a case called Hossain v Minister for Immigration and Border Protection, they said: it's not enough that the decision-maker made a legal error. The error must also be material — meaning it must be the kind of error that could realistically have led to a different decision. If the error couldn't have changed the outcome, it's not jurisdictional, and the privative clause protects it.
That materiality threshold is now the most important gateway in immigration judicial review. Whether your challenge involves a character cancellation, a protection visa, a partner visa, or any other decision, you need to clear that hurdle.
The next part of this series explains exactly how the High Court arrived at that threshold, what it means, and how high the bar actually is.
In this series:
Part 1 (you are here): Why does the Department have so much power? The privative clause, the Constitution, and why the courts had to intervene.
Part 2 (coming soon): The 2018 Case That Changed Everything: How the High Court Raised the Bar for Judicial Review
Part 3 (coming soon): When procedural unfairness and ignored evidence meet the materiality test — and when they don't.
Part 4 (coming soon): Why Even Strong Cases Fail: The Materiality Threshold in Practice
Related:
How Can Agape Henry Crux Help
If any of the situations above sound like yours, get advice now. Judicial review has strict time limits — in most cases, 35 days from the date of the decision — and once that deadline passes, the door closes permanently.
At Agape Henry Crux, our Accredited Specialists in Immigration Law regularly handle judicial review in cases where:
An offshore decision that cannot be appealed
Onshore employer-sponsored applications that are not merits reviewable
The ART deadline has been missed
The Minister made the decision personally (s 501, s 501A, s 501BA)
The Department or Tribunal made a clear legal error, and it needs to be corrected without waiting years for merits review
Unfavourable Tribunal or Court decision
You can schedule an appointment with one of our lawyers, Jason Ling or Angela De Silva, to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English and Mandarin. We can also help you arrange an interpreter if this isn't your language.
Our founder and principal lawyer, Jason Ling, has been recognised in the 2026 edition of The Best Lawyers in Australia™. Agape Henry Crux is named as Best Immigration Law Firm 2025 - Sydney by APAC Insider Awards.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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