Immigration Amendment Act 2015

63 Section 249 replaced (Restriction on review)

Replace section 249 with:

249 Restriction on judicial review of matters within Tribunal’s jurisdiction

(1)

No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(2)

No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(3)

Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(4)

An application to the High Court for leave to bring review proceedings must be made—

(a)

not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or

(b)

within such further time as the High Court may allow on application made before the expiry of that 28-day period.

(5)

A decision by the Court of Appeal to refuse leave to bring review proceedings in the High Court is final.

(6)

In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to—

(a)

whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and

(b)

if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.

(7)

A court that grants leave under subsection (3) to bring review proceedings must state the issue or issues to be determined in the proceedings.

(8)

Nothing in this section limits any other provision of this Act that affects or restricts the ability to bring review proceedings.

249A Applications for appeal and judicial review of Tribunal decision to be lodged together

(1)

This section applies if a person intends to both appeal against a determination of the Tribunal under this Act and bring review proceedings in respect of that same decision.

(2)

The person must—

(a)

lodge the application for leave to appeal and the application for leave to bring review proceedings together; and

(b)

if both applications for leave are granted, lodge the application for appeal and the application for judicial review together.

(3)

The High Court must, unless it considers it impracticable in the particular circumstances of the case to do so,—

(a)

endeavour to determine both applications for leave together; and

(b)

if both applications for leave are granted, endeavour to hear the appeal and the review proceedings together.

249B Appeal to Court of Appeal against judicial review of matters within Tribunal’s jurisdiction

(1)

This section applies in respect of judicial review proceedings for which leave was granted under section 249(3).

(2)

Any party to the proceedings who is dissatisfied with any determination of the High Court in the proceedings may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the Court of Appeal. Section 66 of the Judicature Act 1908 applies to any such appeal.

(3)

In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the issue involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.