ART Judicial Review: When an ART Decision Contains Errors
- Youssef Haddad
- 10 hours ago
- 6 min read
28 September 2026 | Author: Youssef Haddad
Receiving an unsuccessful decision from the Administrative Review Tribunal can be difficult enough, but it can become particularly frustrating when the written reasons appear to contain obvious mistakes, inconsistencies or material that seemingly has nothing to do with the case. It is understandable that an applicant reading such reasons may conclude that the decision must be legally defective and capable of being overturned by a court.
A recent decision of the Full Federal Court demonstrates why the position is considerably more complicated.
In Dass v Minister for Immigration and Citizenship [2026] FCAFC 116, decided on 4 September 2026, the Full Court considered an appeal arising from a migration decision in which the Tribunal's reasons contained acknowledged errors. Despite those errors, the Full Court dismissed the appeal.
The decision provides an important reminder about the distinction between identifying an error in a Tribunal decision and establishing a jurisdictional error that permits a court to intervene. It is a distinction that is particularly important for visa applicants considering ART judicial review after receiving an adverse migration decision.
The Full Federal Court Decision in Dass
The proceedings in Dass arose from the mandatory cancellation of the applicant's visa and a subsequent decision concerning whether that cancellation should be revoked. The Tribunal had considered the applicant's circumstances, including his offending, rehabilitation, family circumstances and other considerations relevant to the exercise of the statutory power.
The difficulty was that the Tribunal's written reasons were not without problems. They contained contradictory conclusions and an apparently irrelevant reference to sexual offending against children, notwithstanding that this did not properly relate to the applicant's case. Those matters understandably became part of the subsequent challenge to the Tribunal's decision.
The Full Court was required to consider whether the errors demonstrated that the Tribunal's reasoning was incoherent or legally unreasonable, and whether the apparently irrelevant material showed that the Tribunal had taken a legally irrelevant consideration into account.
The appeal was nevertheless dismissed.
The significance of the decision is not that mistakes in Tribunal reasons are unimportant or that courts will simply overlook errors. Rather, it demonstrates that the existence of an error in written reasons does not, by itself, establish that the Tribunal failed to perform the task required of it by law.
Tribunal reasons are read as a whole and in the context in which they were prepared. An apparent typographical, editing or cut-and-paste error may be concerning, but the critical legal question is whether that error formed part of, or materially affected, the Tribunal's actual reasoning and exercise of statutory power.
This is where the distinction between an ordinary error and jurisdictional error becomes particularly important.
ART Judicial Review Is About Legal Error, Not Simply Whether the Tribunal Was Wrong
An application for judicial review is fundamentally different from merits review before the ART.
At merits review, the Tribunal considers the matter again and determines the correct or preferable decision within the scope of its jurisdiction. Judicial review, by contrast, is concerned with whether the administrative decision was made according to law.
A court does not ordinarily reconsider the evidence and decide whether it would have granted the visa, revoked a cancellation or reached a different conclusion from the Tribunal. Nor does an applicant establish jurisdictional error merely by demonstrating that another decision-maker might reasonably have reached a different result.
The focus is instead upon the legality of the decision-making process.
Depending on the circumstances, jurisdictional error may arise where a decision-maker misunderstands the statutory task it is required to perform, denies procedural fairness, fails to consider a matter the law requires it to consider, acts upon a legally irrelevant consideration, misconstrues the applicable law or reaches a decision affected by legal unreasonableness.
However, even where an error can be identified, it may still be necessary to examine whether the error was material to the decision.
This is one of the important practical lessons arising from Dass. Written reasons can contain mistakes without those mistakes necessarily revealing a failure by the Tribunal to exercise its jurisdiction according to law. Conversely, an apparently well-written and detailed decision may still contain a jurisdictional error if the Tribunal has misunderstood its statutory task or otherwise exceeded the legal limits of its decision-making authority.
For this reason, the quality of the drafting and the legality of the decision are related but ultimately different questions.
What This Means for Applicants Who Receive an Unsuccessful ART Decision
Applicants considering ART judicial review should therefore be cautious about drawing conclusions from individual passages in the Tribunal's reasons without examining the decision as a whole.
An incorrect date, factual
mistake, contradictory sentence or reference that appears to have been copied from another matter may immediately attract attention. Those matters should certainly be investigated, particularly where they raise questions about whether the Tribunal genuinely considered the applicant's individual circumstances.
However, the legal analysis cannot end there.
The more important question is what effect the apparent mistake had on the Tribunal's reasoning. If the error was merely editorial and the remainder of the reasons demonstrate that the Tribunal correctly understood and determined the case before it, Dass illustrates why the existence of the mistake may not be sufficient to invalidate the decision.
The position can be very different where the error reveals that the Tribunal misunderstood the case, considered something legally irrelevant, failed to engage with a matter it was required to consider, applied the wrong legal test or otherwise failed to perform the statutory task entrusted to it.
This distinction is also why judicial review should not be approached as an opportunity to simply reargue the migration application. A person may strongly disagree with the Tribunal's assessment of their evidence or believe that greater weight should have been given to their personal circumstances. Those concerns may have been highly relevant during merits review, but disagreement about the merits of a decision does not necessarily establish jurisdictional error.
The Tribunal's reasons instead need to be analysed against the relevant provisions of the Migration Act and Migration Regulations, any applicable Ministerial Direction, the issues and submissions actually raised before the Tribunal and the established principles governing administrative decision-making.
There is another practical consideration that should not be overlooked. Migration judicial review is subject to strict procedural requirements and filing periods. An applicant who believes an ART decision may contain jurisdictional error should therefore obtain advice promptly rather than spending weeks or months attempting to determine whether individual factual findings were correct.
Why Dass Is an Important Migration Decision
Dass v Minister is useful because it illustrates a problem that regularly arises when unsuccessful applicants first read a Tribunal decision. The presence of an obvious mistake can create an immediate impression that the entire decision is invalid, particularly where the mistake appears serious or relates to material that has no apparent connection with the applicant.
The Full Court's decision reinforces the need for a more disciplined legal analysis.
The question is not simply whether the ART made an error. The question is whether the identified error affected the Tribunal's exercise of its statutory power in a manner recognised by administrative law as jurisdictional.
That distinction can work in both directions. An obvious drafting mistake may ultimately have no legal consequence, while a much less obvious error in the Tribunal's approach to the legislation, procedural fairness or its statutory task may provide the foundation for judicial review.
For applicants, this means that the written reasons need to be assessed carefully and in their proper legal context rather than judged solely by the presence or absence of obvious mistakes.
Immigration Law Matters Australia
ILM Australia assists clients with Australian migration matters, including Administrative Review Tribunal proceedings and the assessment of adverse migration decisions.
Where an ART application is unsuccessful, we consider it important to distinguish between disagreement with the Tribunal's decision and a potential legal error capable of judicial review. This requires more than identifying factual mistakes or passages in the decision that appear incorrect. The Tribunal's reasons need to be examined as a whole and against the statutory task it was required to perform.
The decision in Dass reinforces why this analysis matters. Not every mistake made by the Tribunal will invalidate its decision, but neither should an applicant assume that a detailed or lengthy Tribunal decision is necessarily free from jurisdictional error.
Where there are concerns about an adverse ART decision, obtaining advice promptly is particularly important because strict court filing periods may apply.
For advice regarding an ART decision or Australian migration matter, contact ILM Australia.
Immigration Law Matters Australia
📍 Melbourne Office, Level 4, 256 Queen Street, Melbourne VIC 3000, Australia
☎️ (03) 9606-0674
ILM Australia
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Disclaimer: This article provides general information only and does not constitute legal or migration advice. Judicial review depends upon the particular decision, reasons, legislation and circumstances of each case.
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