What decisions can the Court review?
The Federal Circuit and Family Court of Australia (the Court) can review certain types of decisions under the Migration Act 1958 made by the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), the Department of Home Affairs, the Administrative Appeals Tribunal, and the Immigration Assessment Authority.
Each person responsible for making decisions under the Migration Act is known as a decision maker. The decision makers look at the merits of your application and consider whether you should or should not be granted a visa.
The Judge who is hearing your case does not look at whether you should or should not be granted a visa. The Judge can only review a decision of a decision maker to see whether a ‘jurisdictional error’ has been made. This means the Judge looks at whether the decision maker made the decision properly, following the correct legal procedures and applying the law correctly.
If the Judge finds a jurisdictional error, they can:
- refer your case back to the decision maker, and.
- prevent the Minister from acting on the decision.
The Judge cannot:
- reconsider the facts and reasons for your visa application,
- take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error), or
- grant you a visa.
The Court cannot make decisions as to whether you should receive a visa before your case is decided. Visas are a matter for the Department of Home Affairs - Immigration and citizenship. If you need information about whether you will be granted a bridging visa (or a visa extension) as a result of filing an application with the Court, you will need to contact the Department. Contact details are available at: https://immi.homeaffairs.gov.au/help-support/contact-us
Applying for review
If you believe a jurisdictional error was made by the decision maker, you may apply to the Court.
You must file an application for review, together with other documents that support your case within 35 days of the date of the migration decision (which may be different to the date on the notification letter you received). You can ask the Court to extend the 35 day time limit. If you need a time extension, you must ask for it in your application and explain why you need it.
You have to pay a fee when you file your application and another fee before the final hearing.
Before applying for review, you should seek legal advice.
Notifying the Minister
After the Court has accepted the application, you have to notify the Minister and any other decision maker by ‘serving’ the application form and other documents on them. The Minister must respond within 28 days after you serve them.
The Court hearings
The Court will give all the parties notice of each court hearing date.
At any time after an application is filed, the Court or a Registrar may give orders or directions for the conduct of the proceeding. The Court or a Registrar may make the orders or directions in Chambers; or at the discretion of the Court or a Registrar, require the parties to an application to attend a hearing.
Usually, a Registrar will make standard timetabling orders in Chambers, without the parties having to attend a first court date directions hearing. The standard timetabling orders are directions which set out when documents have to be filed with the Court to prepare the matter for hearing by a Judge.
In some cases, the parties may be required to attend a hearing to deal with issues that come up before the matter is ready to be finally heard and determined by a Judge.
After the Judge hears from both parties, the Judge will make a decision.