What is an appeal?
If you think the Judge in your case has made a legal mistake in deciding your case, you can appeal to the Federal Court of Australia, asking it to set aside the decision made. Your appeal is likely to be heard by a single Judge unless a Judge thinks the appeal should be heard by a Full Court (three judges).
The Judge hearing the appeal:
- cannot decide if a visa should be granted or cancelled
- does not consider any new evidence or information that was not presented in the original case (except in special circumstances)
- does not call witnesses to give evidence
- does read all the relevant documents filed by the parties for the original case
- does read the relevant parts of the transcript of the original case, if available, and
- does listen to legal argument from both parties to the appeal.
An appeal is not a re-hearing of the original dispute. Rather, it is an examination of whether the law was applied correctly in your case.
To succeed in your appeal, you must show that the Judge who heard your original case made a legal mistake and that the mistake was of such significance that the decision should be overturned. For example, the Judge who heard the original case might have applied an incorrect principle of law.
If you were successful in your application for review, the Minister might appeal. You will then receive a notice of appeal and will be the ‘respondent’ in the appeal.
See the Federal Court website for more information about appeals to the Federal Court.
Do I need a lawyer to appeal?
You are strongly encouraged to get legal advice before you begin an appeal. Court staff are not permitted by law to provide legal advice. Only a lawyer can give you independent, expert legal advice. Lawyers are trained to interpret the law and apply it to individual cases. Lawyers also know migration law, its practices and procedures. A lawyer will:
- define whether you have a legal issue suitable for consideration on appeal
- provide practical options available to you, and
- explain the costs involved in appeal litigation.
An appeal can be costly. You will need to pay a filing fee when you file your Notice of appeal and a separate ‘setting down’ fee. If you lose the appeal, you will probably be ordered to pay the Minister’s legal costs. So, even if you plan to run the appeal yourself, it is important to get legal advice on whether you have valid grounds on which to appeal.
An appeal will only be successful if the Judge has not applied the law correctly. Therefore, to be successful, you must be able to convince the appeal court of how the law should have been interpreted. This will mean you have to develop an argument that may be quite technical and complex and will have to present the essence of it in your notice of appeal.
It is difficult to draft a notice of appeal. It is therefore strongly recommended that you get legal assistance to prepare your notice of appeal.
If you do not have a lawyer, there are organisations that may be able to give you free or low-cost legal advice or assistance.
