Jurisdictional Error Visa

If your visa application, cancellation, or review outcome was decided unfairly or unlawfully, you may have grounds for judicial review based on jurisdictional error — one of the few legal pathways left once merits review has ended. This guide breaks down what jurisdictional error actually means under Australian migration law, based on current guidance from the Federal Circuit and Family Court of Australia (FCFCOA) and the Department of Home Affairs.

What Is a Jurisdictional Error in Migration Law?

A jurisdictional error occurs when a decision-maker — the Minister, a delegate, the Administrative Review Tribunal (ART), or the Immigration Assessment Authority (IAA) — does not make a decision "according to law." Unlike a merits review, judicial review does not reconsider whether you deserve a visa. It only asks whether the decision-making process itself was legally sound.

Jurisdictional Error vs. a "Wrong" Decision

This distinction trips up many applicants:

• Merits review (at the ART) looks at whether the outcome was correct on the facts.
• Judicial review (at the FCFCOA, Federal Court, or High Court) looks only at whether the process followed the law — it cannot re-weigh your evidence or grant a visa directly.

Common Grounds That Amount to Jurisdictional Error

Based on established migration case law, the most frequently argued grounds include:

• Denial of procedural fairness — for example, not giving you a real chance to respond to adverse information under s359A of the Migration Act 1958
• Applying the wrong legal test or asking the wrong question altogether
• Failing to consider a relevant, mandatory consideration
• Taking into account an irrelevant consideration
• Making a finding with no supporting evidence, or one not reasonably open on the material before the decision-maker
• A decision that is legally unreasonable, even if no single error is obvious