Migration Guide: Migration Matters in the Federal Court

About migration matters

Australian migration law concerns the regulation of non-citizens entering and remaining in Australia. The two key sources of Australian migration law are:

Citizenship issues are governed by the Australian Citizenship Act 2007 external link (Cth).

Jurisdiction of the Federal Court

Appellate jurisdiction

The Federal Court will generally have appellate jurisdiction to hear and determine:

  • An appeal from a final decision of the Federal Circuit and Family Court;
  • An application for leave to appeal from an interlocutory decision of the Federal Circuit and Family Court;
  • An application for an extension of time to appeal from a decision of the Federal Circuit and Family Court.

Original jurisdiction

Most first instance migration applications must be heard in the Federal Circuit and Family Court external link. For example, the Federal Circuit and Family Court has jurisdiction to review decisions made by the AAT Migration and Refugee Division. Some migration matters can be started in the Federal Court's original jurisdiction. Under section 476A(1) of the Migration Act external link, the Federal Court has original jurisdiction in relation to a “migration decision” in certain situations, for example decisions to refuse or cancel a visa on character grounds and decisions relating to the removal of non-citizens who are sentenced for 12 months or more for a criminal offence. These decisions are generally made by the AAT General Division, or by the Minister personally.

A "migration decision" under the Migration Act includes the granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission, including a visa.

What the Court cannot do in migration proceedings

In hearing a migration case, the Federal Court cannot decide if a visa should be granted or cancelled. Whether the Court would have made a different decision to the original decision-maker is not relevant to the Court’s determination.

What the Court can do in migration proceedings

The Federal Court generally has the same jurisdiction as the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution external link. This means that the Court can consider whether a legal mistake has been made by the decision-maker and adjudge “questions of law" (under ss 43(3) or 45(2) of the AAT Act) or whether there has been a "jurisdictional error". Examples of jurisdictional errors include the decision-maker:

  • not adopting a fair process in making the decision;
  • identifying a wrong issue;
  • ignoring materials they were required to look at;
  • relying on materials they should not have looked at;
  • incorrectly interpreting or applying the law;
  • reaching a decision that is unreasonable in the legal sense;
  • making a decision for which there was no evidence, or that was not reasonably open on the materials.

Practice Notes

Anyone commencing a matter in the Federal Court should be familiar with the Central Practice Note (CPN-1). It is the essential guide to practice in the Federal Court in all proceedings and all other practice notes are to be read with the Central Practice Note.

Central Practice Note (CPN-1)

The Court is in the process of developing a practice note for migration matters. In the interim this page sets out the Court’s practice and procedure for migration matters.

Other practice notes and Court developed guides which may be relevant to parties involved in a migration matter, include:

NPA practice notes
General practice notes:
Guides and other useful information:

Please note that Registry staff cannot provide legal advice in relation to your application. This list of organisations may be able to offer legal assistance.


Fees, Forms and Rules

Filing fees for commencing a proceeding may apply. Information about Court Fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Forms, Fees & Costs or from the Registry.

You should also be aware of the difference between fees and costs, as this may affect your decision to bring or continue a proceeding in the Federal Court.

Commencing a Migration Matter

Appeals from the Federal Circuit and Family Court

An appeal from a final decision of the Federal Circuit and Family Court must be filed within 28 days from the date of the decision.

An application for leave to appeal from an interlocutory decision of the Federal Circuit and Family Court must be filed within 14 days from the date of the decision.

These timelines apply even if a written copy of the decision is not yet available.

Further information regarding appeals from the Federal Circuit and Family Court is available through the Appeals Guide.

Application for judicial review of a migration decision – Federal Court original jurisdiction

An application to review a migration decision made by the AAT General Division, or by the Minister personally, must be made within 35 days of the date of the migration decision. This timeline applies even if a written copy of the decision is not yet available.

A person who wants to make an application for the review of a migration decision in the Federal Court must file:

Forms:
Rules:

Application for Extension of Time

A person may apply to the Court to extend the time limit, by filing:

Forms:
Rules:
Notes:The affidavit in support should:
  • briefly (but specifically) state the facts on which the application relies and
  • why the application was not filed within time

Application in Federal Court original jurisdiction – s 39B Judiciary Act 1903

In the limited circumstances when it may be appropriate to commence proceedings in the Federal Court’s original jurisdiction pursuant to section 39B of the Judiciary Act 1903 you must use the below form in accordance with the relevant rules. (It is recommended you seek legal advice before you choose this option, as it is very technical.)

Forms:
Rules:

Applying for an Adjournment

If you require an adjournment of your hearing you must apply to the Court, in writing, together with supporting material. You should seek the consent of the other parties before requesting an adjournment. If the other parties do not consent, the Court may have to hold a hearing about your adjournment application.

The Court will not automatically grant an adjournment. The Court will consider the adjournment on the basis of your reasons and the position of the other parties.

All other Federal Court forms are available from the forms webpage.


Legislation

All legislation


Latest Full Court Judgments

 

Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.

Last updated: 3 May 2021