Introduction
Navigating the Australian visa appeal process after an unfavourable decision from the Administrative Review Tribunal (ART) involves a critical shift in legal strategy. The process moves from a “merits review,” where the ART re-examines the facts of a case, to a “judicial review” in the Federal Circuit and Family Court of Australia, which scrutinises the decision-making process for a legal error.
One of the most specific and intricate grounds for such an appeal is the ‘no evidence’ ground, a type of jurisdictional error that is challenging to establish. Understanding this advanced legal concept is crucial, as it can invalidate a tribunal’s decision by demonstrating that a key finding was made with a complete absence of evidence to support it.
Defining The ‘No Evidence Ground’ Of Appeal
What the ‘No Evidence’ Ground Involves
The ‘no evidence’ ground of appeal represents a specific jurisdictional error that occurs when the ART makes a finding on a critical fact without any supporting evidence. This creates a fundamental gap between the evidence presented and the conclusion reached.
In essence, this error means the decision-maker has based their ruling on a non-existent fact. The finding lacks any evidentiary foundation, effectively removing a key pillar that supports the tribunal’s decision.
To illustrate this principle, imagine a judge concluding it was raining outside when the only evidence presented was a weather report showing clear skies. The conclusion has no logical basis in the evidence provided, which perfectly demonstrates the ‘no evidence’ ground. The finding isn’t merely weakly supported—it is entirely unsupported by the record.
What the ‘No Evidence’ Ground Is Not
It is crucial to distinguish the ‘no evidence’ ground from other related but distinct legal arguments. This ground of appeal is not an opportunity to re-argue the merits of your case.
Specifically, the ‘no evidence’ ground is:
| Misconception / Flawed Argument | Explanation: Why It Is Not the ‘No Evidence’ Ground |
|---|---|
| “Insufficient” evidence | The argument cannot be that the evidence was weak or unpersuasive. The claim must be that there was literally zero probative evidence to support a particular finding. |
| “Preferring” evidence | A decision-maker is entitled to weigh material and prefer certain documents or testimony. Arguing that the tribunal ignored good evidence and favoured bad evidence is not a valid ‘no evidence’ claim. |
| “Ignoring” evidence | While failing to consider relevant material might be a different legal error, the ‘no evidence’ ground focuses specifically on findings that lack any evidentiary foundation whatsoever, not on evidence that was present but overlooked. |
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A Hypothetical Partner Visa Appeal Case Study
The Factual Scenario & Evidence
To illustrate how a ‘no evidence’ error occurs, consider a hypothetical Partner Visa appeal at the ART. In this scenario, an Australian citizen is sponsoring their overseas partner, and a critical requirement is proving the sponsor is “settled” in Australia.
To meet this criterion, the sponsor provides the Tribunal with clear and compelling evidence of their strong ties to the country. This documentation includes:
- A permanent, full-time employment contract with a Sydney-based company
- Recent payslips that confirm ongoing and current employment
- A formal letter from the employer verifying the sponsor’s permanent role and their importance to the business
The Tribunal’s Flawed Finding & Jurisdictional Error
After reviewing the case, the ART Member affirms the original Partner Visa refusal. In the written reasons for the decision, the Member makes a pivotal statement: “I find that the sponsor has weak ties to Australia, as there is no evidence before me that he is currently employed.”
This statement represents a classic ‘no evidence’ jurisdictional error. The Tribunal has made a critical finding of fact—that the sponsor is unemployed—which is not only unsupported by the evidence but is directly contradicted by the documents it possessed.
During a judicial review, the Federal Court would not assess whether the job was “good enough” or “stable,” as that would be a merits review. Instead, the court’s role is to determine if the finding of “no job” had any evidentiary basis. Since there was a complete absence of such evidence, the decision is legally flawed and constitutes a jurisdictional error.
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The High Threshold for a Successful Appeal
The ‘Scintilla of Evidence’ Rule
The ‘no evidence’ ground of appeal stands as one of the most challenging jurisdictional errors to prove in judicial review proceedings. This difficulty stems primarily from the “scintilla of evidence” rule, a principle consistently applied by courts.
This rule establishes that if there exists even the smallest fragment or hint of evidence that could have influenced the decision-maker, a ‘no evidence’ claim will almost certainly fail. The evidence in question doesn’t need to be:
- Strong
- Convincing
- Substantial
Its mere existence is sufficient to defeat the appeal. For example, even a vague statement in a document or a brief, offhand remark during a hearing could qualify as a “scintilla” of evidence, thereby undermining the appeal on this ground.
Distinguishing Between Weight & Existence of Evidence
A fundamental aspect of judicial review is the clear distinction between whether evidence exists and how much weight it deserves. The Federal Court’s role is not to reassess the merits of a case or determine if the tribunal reached the “right” decision based on facts. That function belongs exclusively to the merits review process at the tribunal level.
In a judicial review, an applicant cannot successfully argue that the tribunal:
- “Ignored the good evidence and preferred the bad evidence”
- Failed to give sufficient weight to their strongest arguments
Such claims relate to the weighing of evidence, which falls squarely within the tribunal’s domain. The ‘no evidence’ ground is strictly concerned with whether there was a complete absence of any evidence to support a critical finding of fact.
The argument must demonstrate that literally zero evidence existed, not merely that the evidence was weak or unpersuasive.
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What to Do If You Suspect a ‘No Evidence’ Error
Act Immediately On The Strict Time Limits
If you believe the ART has decided based on a finding with no evidence to support it, you must act swiftly. There are strict time limits for filing an application for judicial review with the Federal Circuit and Family Court of Australia.
An appeal must be filed within 35 days from the date of the ART’s decision. This deadline is critical and unforgiving, and extensions of time are rarely granted.
Failing to act within this period can result in losing your right of appeal, making it essential to treat any potential error of law as a time-sensitive matter.
Engage a Specialist Administrative Law & Migration Lawyer
Judicial review proceedings are a highly specialised and complex area of administrative law. The arguments involved are technical and must be framed according to legal precedent, which is why self-representation is strongly discouraged.
An appeal to the Federal Court is not a re-hearing of the facts but a legal challenge to the decision-making process. Therefore, engaging a migration lawyer with specific experiencedise in judicial review is crucial.
A specialist can help you in several ways:
- Properly assess the tribunal’s decision for jurisdictional error
- Determine if a ‘no evidence’ ground of appeal exists
- Construct a robust case for the court hearing
These are complex legal arguments that require an experienced to navigate the court’s jurisdiction and procedures effectively.
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Conclusion
The ‘no evidence’ ground of appeal is a highly specific jurisdictional error that can invalidate a tribunal’s decision if a critical finding of fact was made with a complete absence of supporting evidence. Successfully arguing this in a judicial review is challenging due to the high threshold set by the courts, making it essential to act within strict time limits and engage a lawyer with specialist experiencedise.
If you believe the ART has made an error of law in your case, it is vital to have the decision properly assessed by an experienced. Contact Moya Migration Law’s experienced visa appeal lawyers today for trusted, specialist advice on your judicial review options from our Adelaide-based team.
