There are a number of different court events that can occur in Migration matters:
- Directions
- Callovers
- Summary judgment hearing
- Extension of time hearing
- Final hearing
Each migration application is different. You may not have all of the court events listed occur in your matter.
Whenever you are required to attend court for a hearing, the Court will write to you at your address for service and give you, and the Minister’s lawyers, the details of when and where you must attend.
At each hearing, the Court will give you an opportunity to speak about issues related to your case. If you have a lawyer, they will speak for you. The Minister will be represented by a lawyer, and you (or your lawyer) will have the opportunity to respond to what is said in court.
If you need an interpreter to interpret for you at any court hearing, you must have indicated this on your initial application form, specifying the precise language (and any dialect) needed. If you have not already indicated that you need an interpreter, you should let the Court know as soon as possible. See: I need an interpreter for more information.
Note – Unless the Court excuses you from attending, you must attend court whenever there is a hearing. If you fail to attend a hearing, the Court may dismiss your application in your absence and award costs against you.
Directions
At least six weeks after you have served your sealed documents on the Minister, the Minister’s lawyers will file with the Court (and serve on you) a ‘response’ to your application.
After the response is filed and served, the Court will make standard orders called ‘directions’ that provide a timetable for when documents have to be filed with the Court to prepare the matter for hearing. You are required to comply with any direction or order made by the Court.
Usually, a Registrar of the Court will make the orders without you or the Minister’s lawyers having to attend court for a hearing. The Court will send a copy of the orders to you and to the Minister’s lawyers.
In some cases, both you and the Minister’s lawyer may be required to attend court for a directions hearing to deal with issues that come up in the case. Common reasons a migration application might be listed for a directions hearing include:
- the parties have a dispute about how to get the matter ready for hearing
- the Court wishes to discuss something with the parties
- it has been a long time since the application was filed or since the matter was last before the Court, or
- the applicant has left Australia with no right of return or has not responded to important correspondence.
Callovers
A callover is a directions hearing held to confirm that the matter is ready to proceed to a final hearing before a Judge.
Summary judgment hearing
A migration application may be listed for hearing if the Minister’s lawyers ask the Court for a summary judgment order.
At a summary judgment hearing, the Minister’s lawyers must show that the application has no reasonable prospects of success, is frivolous or vexatious, discloses no reasonable cause of action or is an abuse of the process of the Court.
You will have an opportunity to argue that summary judgment should not be ordered and that your case should be allowed to go to a final hearing. If the Court makes an order for summary judgment, your application is dismissed your proceedings in the Court will be finalised.
Extension of time hearing
An application for review of a migration decision must be made within 35 days of the decision. The Court may extend the 35 day time limit if it is in the interests of justice to do so.
If an application for an extension of time is made, the case will be listed for an extension of time hearing before a Judge. This is your opportunity to make arguments about why it is in the interests of justice for time to be extended. If an extension of time is granted, your case will be listed for a final hearing.
Final hearing
At the final hearing, the Judge will explain to you the procedures that will be followed.
The Judge will hear your arguments and the Minister’s lawyers’ arguments. If you have a lawyer representing you, you usually do not need to speak at the hearing. If you are representing yourself, you will need to explain what you say the decision maker did wrong, and the Judge may ask you questions about your case.
The Judge may announce the decision at the end of the hearing, or the Judge might need more time to consider your case. If the Judge needs more time, you will be told to come back later the same day or to come back on a future date to hear the decision. The Court will then contact you when that date is set.
Be sure to keep the Court informed of your contact details. If your address changes you need to file a Notice of address for service form as soon as possible.
Can I withdraw my application?
If you decide to withdraw your application, you must complete a Notice of discontinuance and file it with the Court. You must also serve a copy of the notice to the Minister’s lawyer.
You will need the other party’s consent or the Court’s permission if you want to file a Notice of discontinuance after the first court date or after directions have been given in your matter.
You may still have to pay some part of the Minister’s legal costs. The closer to the hearing date when a case is discontinued, the higher those costs may be. This is because more legal work has been done closer to a hearing date than in a case that is discontinued earlier.
