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:
- Migration Act 1958 external link (Cth) (Migration Act); and
- Migration Regulations 1994 external link (Cth).
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 Administration Review Tribunal (ART) 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 ART 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 s172 of the Administrative Review Tribunal Act 2024 (Cth)) 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) |
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: |
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| 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 ART 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: |
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Application for Extension of Time
A person may apply to the Court to extend the time limit, by filing:
| Forms: |
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| Rules: |
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| Notes: | The affidavit in support should:
|
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: |
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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
- Australian Citizenship Act 2007 external link (Cth)
- Commonwealth of Australia Constitution Act external link (Cth)
- Federal Circuit and Family Court of Australia Act 2021 external link (Cth)
- Federal Court of Australia Act 1976 external link (Cth)
- Immigration (Guardianship of Children) Act 1946 external link (Cth)
- Judiciary Act 1903 external link (Cth)
- Migration Act 1958 external link (Cth)
Latest Full Court Judgments
- 14 Nov 2024:
Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 146
CONSTITUTIONAL LAW - judicial power of the Commonwealth - whether s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) is valid in its application to the appellant - where Minister revoked appellant's Australian citizenship following his conviction for an offence committed before he became an Australian citizen - where appellant was a child …
Judge: Burley, O'Callaghan and Horan JJ - 30 Oct 2024:
Imad v Director-General of Security [2024] FCAFC 138
PRACTICE AND PROCEDURE - public interest immunity - where primary judge upheld the Director-General of Security's claim of public interest immunity over documents relating to adverse security assessment (ASA) against applicant - whether primary judge erred in upholding public interest immunity claim - whether primary judge erred in not reviewing…
Judge: Bromwich, Thawley and Shariff JJ - 25 Oct 2024:
Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136
MIGRATION - appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) - whether notification of decision to refuse to grant a visa satisfied requirement in s 66(2)(d)(ii) of the Migration Act 1958 (Cth) - consideration of the meaning 'state' in s 66(2)(d) - whether non-compliance was trivial
Judge: Perram, Perry and Feutrill JJ
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.
