Federal Court of Australia matters:

The Federal Court (FC) can hear immigration related matters and appeals however the original jurisdiction of the FC is essentially limited to transfers from the Federal Circuits Court (FCC) decisions of the AAT relating to the “character test”, and certain decisions made personally by the Minister. The original jurisdiction of the FC to consider appeals from the AAT on a question of law does not apply to privative clause decisions or purported privative clause decisions. As such, any challenge to the validity of a migration decision by the AAT can only be brought in the FC under the Court’s power to grant mandamus prohibition or certiorari in the Migration Act. Sound and detailed legal advice in from an Immigration Lawyer may be of great assistance making an application to the Federal Court.

Transfers from the FCC to the FC may take place on the application of a party to the proceeding or on the initiative of the FCC. In deciding whether to transfer a proceeding to the FC the FCC must have regard to a number of matters, including the interests of the administration of justice and whether the proceeding is likely to involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court on a point in issue. It is usually the practice of the Federal Circuit Court to transfer to the Federal Court any application for the review of a decision of a presidential member of the AAT (which would include a Deputy President) since the jurisdictional structure places presidential members higher than Federal Circuit Court Judges.

Applications for the judicial review of migration decisions in the FC are commenced by an originating application in the approved form. The application form is to be accompanied by the lawyer’s “reasonable prospects” certification under migration law and the disclosure of previous judicial review proceedings.

An originating application in the FC must be accompanied by an affidavit in the approved form. As with the FCC, this would usually refer to the decision under review which, as with the FCC, must be annexed to the affidavit unless it is so lengthy that it is impractical to annex, in which case it may be exhibited. The appellate jurisdiction of the FC is invoked by filing a Notice of Appeal from the judgment of the FCC. The practice and procedure for the appellate jurisdiction of the FC is set out generally in the FC Rules.

There are strict time frames that apply in hearing migration matters in the Federal Court. The time limit on an application to the FC is 35 days of the date of the migration decision. As with the FCC this can be extended where the Court is satisfied that it is necessary in the interests of the administration of justice to do so. Applications made to the FC in its original jurisdiction follow a somewhat similar procedure to that in the FCC and, because of their limited nature, will not be considered in the same detail as in relation to applications to the FCC. Where leave to appeal is required the appellate jurisdiction of the FC is invoked by filing an application for leave to appeal. The time limit for filing a Notice of Appeal is within 21 days after the date on which the judgment appealed from was pronounced or the order was made. However the time for filing an application for leave to appeal against an interlocutory judgement of the FCC is 14 days.

Appeals from the FCC are heard by a single Judge of the FC unless a Judge considers that it is appropriate for the appeal to be heard by a Full Court of three judges. In an application for leave to appeal against an interlocutory judgement the applicant for leave must demonstrate that the decision below (that is, the decision of the FCC) is attended with sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave were refused, supposing the decision to be wrong.In exercising its appellate jurisdiction the role of the FC is not to undertake its own judicial review of the decision of the relevant tribunal; this is the role of the FCC. The question before the FC on appeal is “whether, having regard to the grounds identified in a notice of appeal, the decision of the Federal Circuit Court is in error. It is important that grounds of appeal engage with the decision of the Federal Circuit Court”. If the grounds raised by an appellant are not referable to the decision of the FCC or raise issues which were not before the FCC it will be necessary to seek leave of the FC to raise the new grounds, and the appellant must demonstrate that it is expedient and in the interests of justice that new grounds of appeal be raised. Comprehensive legal advice in from a skilled Immigration Lawyer may be of great assistance in understanding these procedures and likely outcomes.

If an appeal to the FC is unsuccessful before a single judge it is not possible to appeal from that decision to a Full Court of the FC, since this is not covered by the FC’s appellate jurisdiction in the FC Act. The only available avenue of appeal from an appellate judgement of a single judge of the FC is to the High Court.

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.

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.