When Can an Immigration Decision Be Challenged in Court?

Not every adverse immigration decision can be challenged, and not every challenge has to go to court. But where a decision has been made unlawfully – where the decision-maker acted outside their powers, failed to follow a fair process, or applied an incorrect legal test – judicial review in the High Court may be the appropriate and sometimes only avenue available.

Understanding when judicial review is available, what it can achieve, and what it cannot, is important for anyone who has received an adverse decision and is considering what to do next.

Judicial review is not a merits appeal. The court does not decide whether the right outcome was reached. It decides whether the decision was made lawfully. That distinction determines both when it is available and what it can deliver.

What Judicial Review Is

Judicial review is a supervisory jurisdiction of the High Court. It allows the court to examine decisions made by public bodies, including Immigration New Zealand, the Immigration and Protection Tribunal, and other government agencies, and to determine whether those decisions were made in accordance with the law.

The grounds on which a decision can be judicially reviewed are well established. They include:

• Illegality: where the decision-maker acted outside their statutory powers or applied an incorrect legal test
• Irrationality: where the decision was so unreasonable that no rational decision-maker could have reached it
• Procedural unfairness: where the process by which the decision was made was unfair, for example because the person affected was not given an adequate opportunity to respond to adverse information.

Where the decision engages rights under the New Zealand Bill of Rights Act 1990, the court can also assess whether those rights were given proper weight.

What Judicial Review Cannot Do

A successful judicial review application does not mean the outcome changes. The court’s role is to send the case back to the original decision-maker for reconsideration. This means that even where judicial review succeeds, the decision-maker may reach the same substantive outcome when they reconsider the matter, provided they do so through a lawful process.

This is a significant limitation that parties sometimes do not appreciate until late in the process. Judicial review is not a pathway to a guaranteed favourable outcome. It is a pathway to a lawful reconsideration. In some cases, that is sufficient, particularly where the legal error was fundamental, and the reconsideration process is likely to produce a different result. In others, it may not achieve what the applicant hopes for.

When Is Judicial Review the Right Pathway?

Judicial review is most appropriate where:

• The decision-maker has made a clear legal error, such as applying the wrong test, taking into account irrelevant matters, or failing to consider relevant ones
• The process by which the decision was made was fundamentally unfair
• There is no other adequate remedy available
• The case has genuine legal merit, not just a strong factual case that was assessed differently.

It is not appropriate where the real complaint is that INZ or another decision-maker weighed the facts differently from how the applicant would have preferred. That is what a merits appeal is for. Where a merits appeal is available and has not been exhausted, the High Court will generally decline to hear a judicial review application.

The Costs and Complexity of Judicial Review

Judicial review proceedings in the High Court are complex. They involve formal pleadings, the production of a record of the decision being challenged, and legal argument before a High Court judge. They take time: from filing to hearing can take many months, and decisions can take further time after that.

This does not mean judicial review is never worth pursuing. In cases where the legal error is clear, and the stakes are high, it can be the right and necessary step. But it should be pursued with clear-eyed advice about the prospects, the costs, and what a successful outcome will actually deliver.

Dalley Sundar’s litigation practice includes judicial review proceedings, and both partners present regularly on judicial review in the immigration context at various seminars and conferences.

Dalley Sundar acts in judicial review proceedings and High Court immigration litigation. If you have received an adverse decision and want to understand whether there are grounds for a legal challenge, get in touch.