Central Practice Direction – Migration proceedings

(MIG-CPD)

1. Introduction

2. The Court and the Registry

3. Overarching purpose

4. Filing documents in a migration proceeding

    eLodgment

    Other filing methods

    By email

    By hand delivery or by post

    By fax

5. Starting a migration proceeding

    Filing an application for judicial review

    Urgent and expedited applications

    Notifying the other party

    What the Court does next

6. Responding to an application

7. Change of registry

8. Court events

    Directions and orders

    First court date

    Final hearing

9. Application in a proceeding

10. Discontinuing a proceeding

11. Costs

12. Consent orders

13. Further information

1. Introduction

1.1 This Central Practice Direction applies nationally from 1 September 2021 to all migration proceedings commenced in the Federal Circuit and Family Court of Australia (the Court). This Central Practice Direction does not otherwise apply to general federal law proceedings.

1.2 This Central Practice Direction is to be read together with:

  1. the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act);
  2. the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (General Federal Law Rules);
  3. the Migration Act 1958 (Cth) (Migration Act);
  4. the Federal Court of Australia Act 1976 (Federal Court Act); and
  5. the Federal Court Rules 2011 (Federal Court Rules).

1.3 This Central Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Central Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.4 To the extent this Central Practice Direction is inconsistent with any Act, regulation, rule, or other legislative provision (whether or not expressly listed above), the Act, regulation, rule or other legislative provision prevails.

1.5 Where the General Federal Law Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules.

2. The Court and the Registry

2.1 Pursuant to section 476 of the Migration Act, the Court has jurisdiction to hear applications for review of some decisions made under the Migration Act by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Administrative Appeals Tribunal or the Immigration Assessment Authority.

2.2 Registrars exercise some powers of a judge in managing cases in the Court.

3. Overarching purpose

3.1 The overarching purpose of the legislation relevant to civil practice and procedure in the Court is the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see section 190 of the Act.

3.2 To that end, legal representatives, in particular, should note the obligations under section 486E of the Migration Act to not encourage a person to commence or continue migration litigation if the litigation has no reasonable prospect of success (without giving proper consideration to the prospects of success or if the purpose in the litigation is unrelated to the objectives which the court process is designed to achieve).

4. Filing documents in a migration proceeding

4.1 Division 2.1 of the General Federal Law Rules sets out the formal requirements for the preparation of documents for filing. In accordance with rule 2.01(2) of the General Federal Law Rules, strict compliance is not required if the document remains readable and can be easily scanned and photocopied.

eLodgment

4.2 Parties are expected to file all documents in a proceeding via eLodgment. For guidance on accessing and using the portal, see the Court's website.

Other filing methods

4.3 A party may adopt a different filing method only if it is not practicable to file through eLodgment: see rule 2.05 of the General Federal Law Rules. Other forms of filing that are permitted are filing by email, hand delivery, post or fax.

By email

4.4 The first alternative to electronic filing through eLodgment is to email documents to the registry for electronic filing: see rule 2.05 of the General Federal Law Rules.

By hand delivery or by post

4.5 A migration application may also be filed by hand at the Court registry.

4.6 To locate your closest Court registry, please see the Court's website.

By fax

4.7 A document may be filed by fax if no other method of filing is available: see rule 2.05 of the General Federal Law Rules. Faxes are limited to 20 pages. A document cannot be filed by fax if the filing fee has not been paid.

5. Starting a migration proceeding

Filing an application for judicial review

5.1 In accordance with rules 4.01 and 29.05 of the General Federal Law Rules, a party starts a proceeding by filing an Application – Migration Act. The application must briefly state the orders sought and the basis on which they are sought.

5.2 In accordance with section 477 of the Migration Act, an application for review must be made within 35 days of the date on which the migration decision was made (this date may differ from the date the party was notified of the decision).

5.3 Rule 29.05 of the General Federal Law Rules requires that a supporting affidavit be filed with the application, including:

  1. a copy of the migration decision and any reasons for the decision;
  2. any document or other evidence the applicant seeks to rely on; and
  3. if an extension of time is sought, evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.

5.4 The affidavit must be in the proper form as outlined in rule 2.01 (requirements for documents) and Division 15.3 (affidavits) of the General Federal Law Rules.

5.5 Unless an exemption applies, the applicant must also pay the filing fee set by regulation.

5.6 If an interpreter is needed for any Court hearing, this should be indicated on the application.

Urgent and expedited applications

5.7 Urgent applications are dealt with in Part 5 of the General Federal Law Rules. If a matter is urgent, the applicant may seek an order that the matter be listed urgently:

  1. if seeking an urgent listing when commencing the proceedings, this order must be sought in the Application – Migration Act; or
  2. If an urgent listing is sought after the application has been filed, the applicant must file an Application in a Proceeding.

5.8 Evidence in support of an urgent application should be given by filing an affidavit. Alternatively, oral evidence can be given with the leave of the Court. Rule 5.03 of the General Federal Law Rules details the evidence that the Court requires in considering an urgent application, including:

  1. the nature and immediacy of the damage or harm which may result if the order is not made; and
  2. why the making of the order is a matter of urgency; and
  3. the steps that have been taken to tell the respondent or the respondent's legal representative of the applicant's intention to make the application or the reasons why no such steps were taken.

Notifying the other party

5.9 The applicant must serve each respondent within 7 days of filing the application, by delivering the application to them. The registry will provide the relevant address to enable the applicant to serve:

  1. the Department for Immigration, Citizenship, Migrant Services and Multicultural Affairs; and
  2. the Administrative Appeals Tribunal.

5.10 Any subsequent documents filed in the proceeding must also be served on each respondent.

What the Court does next

5.11 When the application and supporting documents are filed, the Court or a registrar may give orders or directions for the conduct of the proceeding. This may occur in chambers without a hearing; or, at the discretion of the Court or a registrar, require the parties to an application to attend a hearing.

6. Responding to an application

6.1 A party on whom an application is served (the respondent) must file a Response if consenting to or opposing any of the orders sought by the applicant, or if seeking any other orders.

6.2 The Response must briefly state the orders sought and the basis on which those orders are sought. In addition to the requirements in rule 4.03, a respondent must address the matters set out in rule 29.06 of the General Federal Law Rules.

6.3 The Response and any supporting documents must be filed with the Court and served on all other parties within eight weeks of receipt of the application: see rule 29.05 of the General Federal Law Rules.

7. Change of registry

7.1 A party seeking to have the migration proceeding heard in person in a different registry of the Court must file an Application in a Proceeding with a supporting affidavit setting out the facts relied on.

7.2 In accordance with rule 8.01 of the General Federal Law Rules, in considering the application, the Court must have regard to:

  1. the convenience of the parties;
  2. the limiting of expense and the cost of the proceeding;
  3. whether the matter has been listed for final hearing; and
  4. any other relevant matter.

8. Court events

Directions and orders

8.1 At any time after an application is filed, the Court or a registrar may give orders or directions for the conduct of the proceeding in relation to the following:

  1. the matters in rule 10.01(3) of the General Federal Law Rules;
  2. a stay or interim order;
  3. an extension of time for the application;
  4. an amendment of the application;
  5. the provision of particulars, or further and better particulars, of a ground in an application or response;
  6. the filing of further affidavits by the applicant;
  7. the filing by a respondent or other person of a relevant document or other evidence; or
  8. the filing of affidavits by a respondent.

8.2 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.

First court date

8.3 At a procedural first court date, a judge or registrar may give orders or directions for a range of matters including the items as per paragraph 8.1 above.

Final hearing

8.4 All parties or their legal representatives must attend the hearing. If a party does not appear, the Court may make orders in their absence: see rule 13.06 (default of appearance of a party) of the General Federal Law Rules.

8.5 All parties and legal representatives are expected to have complied with all orders and trial directions. There may be cost consequences for non-compliance resulting in adjournment of the final hearing.

9. Application in a proceeding

9.1 If either party seeks additional orders before final orders have been made, they must file an Application in a Proceeding. In accordance with rules 4.04 and 4.06 of the General Federal Law Rules, an Application in a Proceeding must be supported by an affidavit explaining the basis on which the orders are sought, unless the evidence relied on is already before the Court in affidavit form. The application and supporting affidavit must be served on all parties to the proceeding.

10. Discontinuing a proceeding

10.1 In accordance with rule 13.01 of the General Federal Law Rules, a party may choose not to continue with an application by filing a Notice of Discontinuance at least 14 days before the final hearing. The Notice of Discontinuance may be filed at a later date by consent or with permission from a registrar or the Court: see rules 3.05 and 13.01.

10.2 A party who discontinues an application or part of an application may be liable for costs: see rule 13.02 and Part 2, Division 2 of Schedule 2 to the General Federal Law Rules.

11. Costs

11.1 Unless the Court otherwise orders, costs in migration proceedings are set out in Part 2 of Schedule 2 to the General Federal Law Rules. The Court has a general discretion to depart from the fixed costs in Schedule 2 to the GFL Rules.

11.2 Non-compliance with the General Federal Law Rules or any Court order may attract costs consequences, including the possibility of costs being awarded personally against a lawyer: see rule 22.06 of the General Federal Law Rules, section 191 of the Act and section 486F of the Migration Act.

11.3 If the Court dismisses an application because an applicant fails to attend pursuant to rule 13.06 of the General Federal Law Rules, the Court may also make a costs order against the applicant in their absence.

12. Consent orders

12.1 If the parties propose that an order be made by consent, the effect of which is to set aside or vary an order of the decision of the Commonwealth Administrative Appeals Tribunal or any other tribunal established under a law of the Commonwealth (the Tribunal), they must file the proposed consent order with the Court, together with a notation concisely setting out the matters said to justify the making of the proposed order and giving references to any authorities or statutory provisions relied upon. The proposed order must be signed on behalf of all parties.

12.2 If the proposed consent order relates only to costs, only the proposed consent order need be filed.

12.3 If the Court makes a consent order the parties must, within seven days of the order being made, serve a copy of the order upon the Tribunal.

13. Further information

13.1 For further information on how migration proceedings are conducted in the Court, please refer to the Court's website at www.fcfcoa.gov.au.

 

The Honourable Justice William Alstergren
Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021