Despite everyone’s best efforts, your visa application has been denied. Even due consideration by the Administrative Appeals Tribunal (AAT) has failed to reverse the negative finding, leaving you in a confused state of utter desperation.
Is there any possibility of recourse through the Courts? Which decisions can be reviewed and through which Courts? Are there any chances of finding a positive outcome?
An overview of Court processes
In the Federal Circuit Court and in the Family Court of Australia (FCFCOA) judges can review certain decisions made under the Migration Act 1958. These reviews may impact decisions made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (The Minister), the Administrative Appeals Tribunal (AAT) or the Immigration Assessment Authority.
Each person responsible for making determinations under the Migration Act is known as a “decision maker” and it is these “decision makers” who review the merits of each application to decide whether the applicant should, or should not be granted a visa.
In conducting a subsequent Court review, a presiding Judge will not revisit the original application detail, but rather consider whether the “decision makers” made any jurisdictional errors along the way to reaching their conclusions; whether the “decision makers” followed all correct legal procedures, undertook reasonable due diligence and applied the law properly.
The Judge cannot reconsider the facts and/or the reasons for the visa application. He (or she) cannot consider new factual information, unless it is directly relevant to the question under review, which is specifically whether the “decision maker’ made a jurisdictional error.
If the Judge does identify an error
Should the Judge identify a jurisdictional error, he (or she) can refer the case back to the “decision maker, whilst preventing the Minister from acting on the decision.
The Judge cannot grant a visa
The Court cannot make determinations as to whether an applicant should receive a visa, of any description, prior to final adjudication. Visas are issued at the discretion of the Department of Home Affairs, Immigration and Citizenship (the Department).
In instances where an applicant requires a visa (bridging, extension or otherwise) pending a final decisions on his (or her) case, it must be sought via application to The Department.
Contact details are available at: https://immi.homeaffairs.gov.au/help-support/contact-us .
Applying for review
Where an applicant believes that a jurisdictional error has been made by a “decision maker”, he (or she) may apply to the Court for a review.
The review application must be filed, complete with all supporting documentation and evidence, within 35 days of the migration decision date (which may differ from the notification letter date).
It is possible to request, from the Court, an extension to this time limit but any such request and any reasons for such request must be contained within the review application and explained in its accompanying affidavit. A fee applies for each review application, with a second fee payable prior to final hearing.
Before applying for a review, applicants are urged to seek legal advice.
For further information see: Review of Migration decisions brochure
Notifying the Minister
Once confident that a challenge is justified, the applicant may apply to the Court. The Court will consider the application for review. If accepted, the applicant will be required to notify the Minister and all other “decision makers” by serving them with the fully documented and supported application form.
The Minister must respond within 28 days of service date.
Proceeding to Court Hearing
The Court will give all parties due notice of each hearing date.
At any time after an application is filed, the Court or a Registrar may issue orders or directions for conduct of the proceedings. The Court or Registrar may make such orders or directions in Chambers or elsewhere, at the discretion of the Court or Registrar, requiring all parties to the application to attend the hearing.
At the procedural first court date, the Judge or Registrar will make orders as to how the case will be conducted, a second (and usually final) hearing date will follow; the Judge will hear from both parties, with a decision made generally on that same day.
How to apply
Electing to challenge earlier decisions, by seeking a final determination from the Court, is a choice which most certainly should not be taken lightly. It not only involves cost and a significant investment in time, in order to maximise any possibility of success, it requires careful, strategic preparation.
Even before commencing the formal application process, potential applicants would need to gather all evidentiary material; anything and everything which might be relevant to the review.
Applicants should then complete an Application – Migration Act form and prepare an Affidavit in support of the application. (An affidavit is a written statement, prepared by a party or a witness in a court case; a primary way of presenting evidence to the court.)
Wherever possible, the affidavit should be typed. It must be written in English (see I need an interpreter for information regarding translation) and prepared in line with the Rules, for filing.
If unable to be typed affidavits can still be presented in hand-written form, provided that wording is printed clearly and legibly on just one side of each page. It must be divided into numbered paragraphs, each section under a separate heading.
When including evidence from another party or parties, such as friends, family members or professionals who can directly support the application, separate affidavits would be required from each and these must be filed, together with the application. (Unless a court orders otherwise, persons under the age of 18 should not prepare a supporting affidavit.)
Whilst it is possible for applicants to prepare their own affidavits (and assistance is available through legal advice, it really does make good sense to defer to a professional. The affidavit (or affidavits) form the substance of the case and must at all times be both credible and constructive.
For further information regarding affidavits, refer to fact sheet Preparing an affidavit.
To formally seek consideration, an application must be filed with the Court, complete with all supporting information:
- Fully completed application (Application – Migration Act)
- An affidavit or affidavits
- Copy of the migration decision required for review, with reasoning for decision to review
- All other documents or evidence upon which the application relies
The application must be completed fully; it must identify a claimed jurisdictional error made by the “decision maker”, whilst the accompanying affidavit must explain all relevant facts and circumstances relating to such alleged error.
Omissions or oversights may incur delays, as the application will quite likely be returned for clarification.
Applicants who require an interpreter at a hearing should indicate their requirement on the application (need an interpreter) .
Strictly at the discretion of the Court, certain qualifying applications may be heard on an expedited basis. For consideration under this platform, applicants should indicate on their original application, any reasons for priority attention.
The Application in a Proceeding form, in conjunction with the applicant’s affidavit provide the avenue for justifying an application for urgent hearing.
Wherever possible, all Court documents must be filed electronically, using eLodgement. Instructions for using eLodgement are available on the Federal Court Website.
Where it is simply not possible to use the eLodgement facility, documents may be filed in person, by mail or, in certain circumstances, by fax or email. Contact the Court to clarify this option.
Of course, in choosing to seek a review through the Court, applicants will incur certain fees:
A filing fee must accompany an application to the Court under Application – Migration Act. (Current fees are available on the fees page.)
Circumstances do exist however, where applicants may be exempted from paying court fees or may qualify for a reduced fee.
To apply for a reduced fee, or an exemption from paying court fees due to hardship, applicants should file an Application for Exemption from Paying Court Fees or Reduction – Financial Hardship form, which is available from the Federal Court of Australia website.
If this application is approved, this means that either a reduced fee or a fee waiver will apply.
Applicants who are receiving legal aid, in immigration detention, hold a Centrelink Healthcare card or are under the age of 18 years can apply for exemption from Court fees using a different, specific form called Application for Exemption from Paying Court Fees – General, which is also available from the Federal Court of Australia website.
Upon appropriate lodgement, Court staff will check the application, to ensure that it has been completed correctly and fully, that it meets all formal requirements and that applicable filing fees have been paid. The Court will then stamp the application; a formality which ascertains that the application has been accepted by the Court.
Court staff will then set the first Court date, which will be marked on the application cover sheet, together with the place and time for that first court hearing. The Federal Court of Australia website provides details of court locations.
At this point, the applicant must notify the Minister and any other parties, by serving the application.
How to notify the Minister
Within seven days of filing the application, the applicant must provide to the Minister and in most cases to the tribunal or authority which made the decision, a stamped copy of his or her application and its supporting documents.
This process is known as ‘service’ of documents. Documents may be served on the Minister via the Department of Home Affairs (the Department), which has offices in each capital city.
Applicants may go to the Home Affairs website or call the Department on 131 881 for address details.
The Minister will usually file a response within 28 days, following service date.
Communications with the Court
Applicants may always contact the Court registry for information about their cases, or to provide information to the Court. For obvious reasons, they will not be able to communicate directly with the assigned Judge, other than in the courtroom.
The applicant’s current contact details remain vital, throughout the review process and any changes must be immediately conveyed in writing to both the Court and the Minister’s solicitor as, from time to time, interim communications may become necessary.
Use the Notice of address for service form and once completed:
- File it with the Court using the Commonwealth Courts Portal, and
- Notify the Minister, using the same method which was used in notifying them of the original application.
Should the form be unavailable online, contact the Court to obtain a copy of the form.
Withdrawal of an application
Where an applicant decides to withdraw his or her application prior to the case being decided, a Notice of discontinuance will need to be completed and then filed with the Court. The applicant must also send a copy of this notice to the Minister’s solicitor.
Where Notice is provided less than 14 days before the scheduled final hearing, permission to discontinue will be at the Court’s discretion.
Where an applicant decides to discontinue his or her case without a hearing, he or she will generally be required to pay part of the Minister’s legal costs. The Rules state how much payment will likely be required.
Is it worth a try?
This depends upon a number of factors:
- Your personal circumstances
- If you are objectively able to recognise evidence of an error or oversight which would have been likely to negatively impact the outcome of your original visa application
- If you have reasonable confidence in a positive finding by the Court
- If the risk far outweighs the investment
The avenue is there to be properly used but it’s always advisable to obtain legal advice, prior to venturing into serious Court action.
We can help
At Sellanes Clark, we are always ready to offer qualified assistance. We understand the complexities of evolving immigration and legal issues and we recognise the many advantages of prompt action.
For more information on this or on any relating issues, contact the friendly migration lawyers at Sellanes Clark – specialising in all immigration matters.