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The Constitution gives the Commonwealth Parliament the power to enact laws with respect to “naturalisation and aliens” and “immigration and emigration”.  Central to the rights of any state is the right to control who can enter and remain within its borders. The right to permit entry to, or expel aliens from Australia is derived from this principle of sovereignty and is enshrined in the Australian Constitution (the Constitution). The extent of the Commonwealth's powers to make laws with respect to migration has been considered by the High Court in a number of cases.  If a person believes that they have been unfairly treated by the Immigration Department, the High Court provides the forum for review of administrative decisions, albeit at the highest court in Australia.

Applications for appeal of immigration or citizenship matters in the High Court are complex and difficult and should only be considered by experienced practitioners and where there is no option to seek relief either in the Federal Court or a Tribunal. Such applications require a great deal of work from the outset, since the application must be “front-end loaded” with all of the completed documentation so that the matter is technically ready to be heard from the date that the application is filed. The High Court Registry is also exacting in the precise requirements for documentation. To take just one example, on rule requires that every tenth line on each page be numbered in the left margin, and the Registry will simply not accept documents for filing which do not comply with this requirement. The time limit on any application to the High Court is 35 days from the date of the decision under review, although as with the Federal Court or Federal Circuits Court this can be extended where it is necessary in the interests of the administration of justice. Solid and detailed legal advice in from an Immigration Lawyer may be of great assistance making an application to the High Court.

Proceedings are commenced in the HC by preparing and filing a number of documents.  First is an application for an order to show cause. This must be in the prescribed form and, among other matters, it must set out the relief claimed-usually the constitutional writs of certiorari and mandamus together with costs- and contain fully particularised grounds upon which the relief is sought. Then an affidavit or affidavits in support of the application. The supporting affidavits must comply with the requirements of HC Rules and they must set out in detail all of the evidence which is proposed to be given at the final hearing.  Then A summons which specifies the orders which the plaintiff will be seeking needs to be prepared.  An outline of submissions which states why the matter should not be remitted to another court, what further steps, if any, should be taken in the court, specifying the times by which, and manner in which, further steps in the court are to be taken, and setting out the precise terms of the orders which the plaintiff submits should be made on the hearing of the summons.

Parties seeking to appeal from a decision of the FC to the HC must first obtain special leave to appeal to the High Court. Where any proceeding before the HC, either in its original or appellate jurisdiction, involves a matter arising under the Constitution or involving its interpretation, the applicant must file a notice of a constitutional matter with the Registry stating the nature of the matter. Proceedings which involve a matter arising under the Constitution are usually heard by a Full Court of all seven Justices. Comprehensive legal advice in from a skilled Immigration Lawyer may be of great assistance in understanding these procedures and likely outcomes.

If you would like further information or wish to discuss your Immigration matter with us please do not hesitate to contact us by telephone on (02) 9233 4048 or by email to info@navado.com.au. Please peruse our Locations tab to see our other branch locations.  

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

If you require assistance with a matter, you should make an appointment to see one of our Lawyers in one of the following locations:

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  • Chatswood
  • Hurstville

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  • Visa Lawyer North Sydney
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  • Visa Lawyer Hurstville
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  • Visa Lawyer Chatswood
  • Migration Lawyer Miranda
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  • Visa Lawyer Miranda
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  • Migration Lawyer Erina
  • Immigration Lawyer Erina
  • Visa Lawyer Erina
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Level 10, 309 Pitt Street.

Parramatta
Level 9, 33 Argyle Street.

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Ground Floor, 5 Railway Parade.

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