Migration Law Guide

Introduction to migration

What is migration?

Migration is the movement of people across a specified boundary for the purpose of establishing a new or semi-permanent residence. Immigration law relates to the act of entering a country with the intention of remaining there permanently.

Australian immigration law is regulated by variety of Commonwealth law, namely:

• Migration Act 1958 and Migration Regulations 1994;
• Judiciary Act 1903 (s 39B); and
• Australian Citizenship Act 2007.

Which court?

A migration case may be heard by the Federal Court or the Federal Circuit and Family Court of Australia (FCFCOA). Most migration cases are heard by the FCFCOA. The rules, forms and procedures are different for each court for migration cases.

A migration appeal or appeal related application is only heard in the Federal Court.

How are migration proceedings brought to the Court?

Under section 476A of the Migration Act 1958 (the Act), the Federal Court has jurisdiction in relation to a migration decision only if:

1.      the FCFCOA transfers a pending proceeding in relation to the decision to the Federal Court; or

2.      the decision is a privative clause decision or purported privative clause decision of the Administrative Appeals Tribunal under section 500 of the Act; or

3.      the decision is a privative clause decision or purported privative clause decision made personally by the Minister under sections 501, 501A, 501B or 501C of the Act; or

4.      the Federal Court has jurisdiction in relation to the decision under subsections 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

A ‘migration decision’ under the Act means a ‘privative clause decision’, ‘purported privative clause decision’ and ‘non-privative clause decision’. A ‘privative clause decision’ is defined in the Act to mean a decision of an administrative character made, proposed to be made, or required to be made under the Act or regulations or other instrument other than certain excluded decisions. ‘Purported privative clause decision’ and ‘non-privative clause decision’ are also defined in the Act.

A ‘decision’ includes the granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission, including a visa. It also includes a failure or refusal to make a decision.

If the Federal Court has jurisdiction in relation to a migration decision, that jurisdiction is the same as the jurisdiction of the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution, namely, matters in which a writ of mandamus or prohibition or an injunction is sought against a Commonwealth officer.

What a Court cannot do in migration proceedings

The FCFCOA cannot review the merits of a migration decision, only whether it has been affected by ‘jurisdictional error’. Examples of jurisdictional error include the decision-maker:

• identifying a wrong issue;
• asking a wrong question;
• ignoring relevant material;
• relying on irrelevant material; or
• an incorrect interpretation and/or application to the facts of the applicable law,

in a way that affects the exercise of power.

When must you commence your migration proceedings

An application to the Federal Court or the FCFCOA to review a migration decision must be made within 35 days of the date of the migration decision.

An application may be made to the FCFCOA to extend the time limit. The application for an extension of time must be accompanied by

• a draft originating application; and
• an affidavit stating the facts on which the application relies and why the application was not filed within time.

The forms are available on the Court’s website.

Where will the hearing be?

The migration application or notice of appeal will show the time, date and place of the hearing. If you are not sure, call or visit the registry near you. You can also check the Federal Law Search through the Federal Court’s website.

A list of cases is usually posted on a noticeboard near the entrance of the court building. There may be several hearings with the same time and date as your case. You should wait in or near the courtroom until your case is called. It is a good idea to sit in the courtroom for a little while so that you can see what happens at a hearing.

What happens at the hearing?

When your case is called you should walk to the long bar table at the front of the courtroom and tell the Judge your name. You should stand up when you are speaking and also when the Judge is speaking to you.

At the hearing you need to tell the Court what you say are the jurisdictional errors in the migration decision you want the Court to review and explain the reasons why. After you have finished talking to the Court, the other party to your proceedings will tell the Court their response to what you have told the Court. The Judge may ask you or the other party questions throughout the hearing.

At the conclusion of the hearing, the Judge may tell you their decision straight away or tell you that they require some time consider to what has been said and will notify you at a later date of his or her decision.

What if you need more time?

If you need more time to prepare your case you may ask for an adjournment. An adjournment is when a hearing is deferred or postponed to a later date.

At the hearing tell the Judge you want an adjournment and the reason why. The Court will also ask the other side whether it agrees to an adjournment.  The Court does not automatically grant an adjournment but will do so if it thinks your reasons for requesting it are valid.

If you are granted an adjournment you may be ordered to prepare a further affidavit. If you ask for an adjournment and it is granted, you may also be ordered to pay the other side’s legal costs for the day of the hearing.

Interpreters

If you need to arrange an interpreter, check the Interpreters page for further information.

Need more information?

For more information, including access to the Act, Rules and any of the forms mentioned, go to:

• www.fedcourt.gov.au or www.fcfcoa.gov.au
• call the registry in your State or Territory, or
• visit a registry near you.

What other information can the Courts provide?

The Courts can give you information about:

• where to get legal help or legal representation
• court procedures.

Court staff cannot provide you with legal advice.