Federal Circuit Court

Federal Circuit Court 

Decision Makers

Under the Migration Act, the primary decision-makers are:

  • The Minister
  • Members of the Administrative Appeals Tribunal (AAT)
  • Members of the Immigration Assessment Authority (IAA)

These individuals evaluate your visa application and determine whether to grant or refuse your visa. Our services are limited to assisting with appeals to the AAT if your visa application has been refused. We do not provide services for the Federal Court.

Judicial Review

What is Judicial Review?

The Federal Circuit Court reviews decisions to determine if there has been a “jurisdictional error.” This means checking if the decision was made according to the law. The Court is independent of the original decision-makers and does not evaluate the merits of your visa application.

If the Court Finds a Jurisdictional Error:

  • The case may be sent back to the original decision-maker.
  • The Court can prevent the Minister from acting on the decision.

The Court Cannot:

  • Reconsider the facts or reasons of your visa application.
  • Review new factual information (unless it pertains to whether a jurisdictional error occurred).
  • Grant you a visa.

Who Can Apply?

You can apply for judicial review if you believe there was a jurisdictional error in the decision. It is advisable to seek legal advice before making an application.

Confidentiality & Time Limits

Confidentiality:

Court hearings are typically public, but in some cases, a closed hearing may be ordered. For protection visa cases, your identity will not be published.

Time Limits:

You must file an application for review within 35 days of the migration decision. The Court may extend this period if you request an extension and provide a valid reason. The Court will decide whether to grant an extension.

Court Forms

To apply for a review, you need to complete:

  • An application form
  • An affidavit

These documents are available on the Court’s website or from the court registry. Refer to the Court’s fact sheet on “Preparing an Affidavit” for help with drafting. Your application must specify the jurisdictional error and your affidavit must include relevant facts, a copy of the decision, and any statement of reasons.

Ensure all parts of the application are completed, or it may be returned for further information.

Filing and Fees

Filing:

Submit your application and supporting documents to the Court. You can file in person, by mail, or in some cases by fax or email. File the original and two copies; the Court will keep the original and return the sealed copies to you.

Fees:

You must pay a filing fee and a fee for the final hearing. Fees may be waived in certain situations, such as if you hold specific government concession cards or can demonstrate financial hardship. More information about fees is available on the Court’s website or by contacting the court registry.

Service:

After filing, you must serve a sealed copy of your application and supporting documents to the Minister and, in most cases, the Tribunal that made the decision. You can serve these documents through the Department of Immigration and Border Protection.

Court Hearings

The Court will schedule your hearing and may make orders or directions regarding:

  • Immediate or future hearing dates
  • Temporary orders
  • Filing of additional documents

If required, you must demonstrate that you have an arguable case. Failure to do so may result in the dismissal of your application without a final hearing. At hearings, you or your lawyer can address the issues, and the Minister will usually be represented by a lawyer as well.

The Court typically announces its decision at the end of the final hearing or will notify you of the decision date. Attendance at all hearings is mandatory unless excused by the Court; otherwise, your application may be dismissed and costs awarded against you.

Legal Costs

Legal costs are the fees and expenses incurred by hiring a lawyer. Generally, if your application is unsuccessful, you may be required to pay the Department’s legal costs. The costs depend on the case’s complexity and duration. The Federal Circuit Court Rules detail the applicable legal costs. If you withdraw your case, you may have to pay a portion of these costs.

Withdrawing Your Case

To withdraw your application, file a Notice of Discontinuance with the Court and send a copy to the Minister’s solicitor. If the final hearing is less than 14 days away, you need the Court’s permission to withdraw.

Legal Advice

The review process can be complex. Seek legal advice as soon as possible. You may get free advice from legal aid offices or community legal centers. Alternatively, hire and pay for a lawyer yourself. Court staff can assist with court forms and procedures but cannot offer legal advice.

This brochure provides general information and is not a substitute for legal advice. Consult a lawyer for guidance on your specific case or if you are considering applying to the Court.