This brochure is also available translated into several community languages.
Who is this brochure for?
This brochure is for people who want the Federal Circuit and Family Court of Australia (Division 2) to review a visa-related decision.
What decisions can the Court review?
The Court can review certain types of decisions under the Migration Act 1958 made by the Minister for Immigration and Multicultural Affairs (the Minister), the Department of Home Affairs, the Administrative Review Tribunal (ART) and the Immigration Assessment Authority (IAA).
The Court can only review a decision to determine if a serious legal error, called a ‘jurisdictional error’ was made. Jurisdictional errors include failing to consider a relevant consideration or relying on irrelevant material, asking the wrong question or failing to observe the requirements of procedural fairness.
What can the Court do?
If your review application is successful, the Court can send your case back to the decision maker for re-determination. The Court can also prevent the Minister from acting on the decision.
What can’t the Court do?
The Court cannot decide whether you should be granted a visa, and it cannot grant you a visa.
Is the Court independent?
Yes, the Court is independent of the people who make decisions under the Migration Act 1958.
Who can apply?
You may apply to the Court if you believe there is a serious legal error in the decision you want the Court to review. You should seek legal advice prior to filing an application.
Is the court hearing private?
Generally, court hearings are open to the public and all decisions are published on the internet. If your case involves a protection visa, the Court does not publish your name or personal information to protect your identity. The decision is still published using a pseudonym.
Do time limits apply?
You must file an application for review within 35 days of the date of the decision. If your application is late, you must explain why and ask the Court for an extension of time in your application.
Which forms do I need?
To apply for a review of a decision, you must complete:
- an application, and
- an affidavit.
These documents are available at www.fcfcoa.gov.au or from a Court registry near you.
Your application must identify the legal error you believe the decision maker has made. Your affidavit must include a copy of the decision to be reviewed and any other evidence you will rely on to support your application. If you are seeking an extension of time in your application, you must explain in your affidavit why it is late.
Who do I need to give the forms to?
Once complete, you need to file your application and affidavit (with any supporting documents) with the Court. After filing, you must give a copy of your ‘sealed’ application and affidavit to the Minister. This process is known as ‘service of documents’.
You can serve the documents on the Minister through the Department of Home Affairs (the Department). The Department has offices in each capital city. Go to www.homeaffairs.gov.au or call the Department on 131 881 for address details.
What happens at the court hearing?
The Court will set a time and date for your hearing, which may be conducted by telephone, web conference or in person. Unless the Court excuses you, you must attend Court whenever there is a hearing. If you fail to attend a hearing the Court may dismiss your application and award costs against you.
At the court hearing, the Court will give you an opportunity to talk about the issues in your case. If you have a lawyer they will speak for you. The Minister will be represented by a lawyer.
The Court may make a decision on the day of the hearing or notify you of the decision at a later date.
What about interpreters?
You can contact the Court by calling the telephone interpreter service on 131 450. If you need an interpreter to translate for you at the court hearing, you must indicate this on your application form.
Do I have to pay any money?
You must pay a fee when you file your application and another fee for the final hearing. In some cases, you may be exempt from fees or eligible for a reduced fee. Further information about fees is available on the Court’s website.
Legal costs are different to fees. If you discontinue your application or it is dismissed by the Court, you will usually have to pay all or some of the Department’s legal costs.
Can I withdraw my case?
Yes. You can withdraw your case by filing a Notice of Discontinuance. If you file a notice less than 14 days before your final hearing, the Court will decide whether to allow you to discontinue your case.
Do I need legal advice?
Yes. Migration matters are complex and you should seek legal advice about your application as soon as possible. You may be able to obtain free advice from a legal aid office or community legal centre. Otherwise, you will need to choose your own lawyer and pay for this service.
This brochure provides general information only and does not provide legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Federal Circuit and Family Court of Australia cannot provide legal advice.
0921V3
