Migration: Overview

What decisions can the Court review?

Judges in the Federal Circuit and Family Court of Australia (FCFCOA) can review some decisions made under the Migration Act 1958. These include some decisions of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), 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.

For more information see: Review of Migration decisions brochure

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 the first court date, the judge will make orders about how the case is going to be conducted.

Sometimes, the second hearing will be a ‘show cause’ hearing and, if you are unsuccessful, the application will be dismissed at that hearing. If you are successful at the show cause hearing, the judge will set another date for the final hearing.

The second hearing date will often be the final one.

After the Judge hears from both parties, the judge will make a decision, usually on the same day.