Appealing to the Federal Circuit Court is complex.
In Australia, the Federal Circuit and Family Court, Federal Court and High Court of Australia all hear visa appeals.
Frequently Asked Questions
What courts can you appeal an immigration decision to?
In Australia, the Federal Circuit Court, Federal Court and High Court of Australia all hear visa appeals.
Most commonly, a visa refusal or cancellation decisions are first appealed to the Administrative Review Tribunal (ART) (or in the past the Immigration Assessment Authority (IAA) or Administrative Appeals Tribunal (AAT)). If the ART appeal is unsuccessful, your case may then be appealed to the Federal Circuit and Family Court of Australia (FCFCOA) or Federal Court of Australia (FCA).
In limited circumstances a visa refusal is appealed directly to the High Court of Australia.
The court appeals process can be complicated and technical, and we recommend obtaining legal advice from a migration lawyer about your court appeal options. It is important to note that only a practicing lawyer can assist you with judicial review at the court and there can be serious consequences if someone assists or encourages someone with migration litigation without going through the proper process.
What does a court appeal for an immigration decision involve?
The court’s role is to determine whether a jurisdictional error (also called a legal error) has occurred in your case. A legal error can include that you were not given a fair go at your ART hearing or the wrong legal test was used in your decision.
The court will assess the previous decisions made on your visa application and appeal to determine if the decisions were made in accordance with the law. The court cannot reconsider your visa application and generally you cannot provide new information relating to your visa application to the court unless it relates to the legal error you believe happened in your case. The court also cannot grant you a visa.
If you want to appeal your case to the courts, you will need to file and serve an application in the correct court. This is sometimes referred to as an application for judicial review. We recommend that you obtain a merits assessment by a barrister or an accredited specialist in immigration law to confirm your prospects of success for your court appeal.
Generally, the orders that are being sought are called writs. This might be a writ to quash the decision under review, and/or a writ directing the tribunal to reconsider your case again according to law. In some cases, it may be necessary to seek interim orders or an injunction. There are also times when orders are sought for a person or entity to complete a task.
The court is a cost jurisdiction which generally means that if you win your application, you may be entitled to recover some of the costs from the opposing party. Likewise, if you lose, you may be liable to pay some of the costs incurred by the opposing party.
Once you have lodged your court appeal application, the court will give you information about key dates in your case, such as a direction hearing or call over hearing and eventually a final hearing. A direction or call over hearing is when the deadlines for filing all the relevant documents are set by a registrar or judge.
Prior to your final hearing the court will likely require you to set out in an amended application and or submissions, why you consider the tribunal or other relevant decision maker made a legal mistake in their decision. In most cases error needs to be jurisdictional and material to the decision (for example if the error was not made, the decision maker might or could have come to a different outcome).
The representative for the respondent(s) will also prepare and file their arguments, if they are defending the decision. The judge will then consider the arguments of both parties at a final hearing and make a decision.
The judicial review process is complex and formal. There are also serious cost implications of commencing migration litigation. We suggest that if you intend to lodge an application in a court, you should obtain legal advice as soon as possible.
What is the deadline to file an application in the FCFCOA?
The usual timeframe to lodge an appeal from the ART to the FCFCOA is 35 days from the date of your Tribunal decision (not the date you received it). If you require an extension of time, you must request this and provide a suitable explanation as to why you required an extension of time. It is also important to note that bridging visa deadlines may differ from court deadlines.
Book a free 10 minute consultation online now with one of our immigration lawyers and learn about your options for judicial review.