Federal Court of Australia

Form 56A: Application under the Migration Act 1958
Version: 6
Rule: Order 54
Download: Form 56A in rich text format

Guide to Form 56A: Application under the Migration Act 1958

Please read this guide and the form carefully. As the party making the application (the applicant), you are responsible for making sure all your paperwork is in order. Although the Court’s Registry staff can check your forms and other court papers for completeness (for example, they check for signatures, and that attachments are present and signed by an authorised person within your State or Territory) and give you information about the Court’s procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents.

When should you use Form 56A?

Form 56A should be used if you want to make an application to the Court relying on section 39B of the Judiciary Act 1903 in relation to:
(1) a decision that is a privative clause decision, or a purported
privative clause decision, of the Administrative Appeals Tribunal on review under section 500 of the Migration Act; or
(2) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C of the Migration Act.

Drafting the application can be very difficult. It is therefore recommended that it be prepared with legal assistance.

You can get contact details of organisations which may be able to provide free or low-cost legal advice or assistance from the Registry or the Court’s website.

How do you appeal?

Note: all references are to sections of the Migration Act.

1. Get a Form 56A and fill it out. This is the application. On this form you are called the applicant. You can get a copy of Form 56A from the Registry or download a copy from the Court’s website. If possible, attach to the application a copy of the decision you want the Court to review.

2. The application must be filed in a Registry of the Court within 28 days of actual notification of the decision you want the Court to review (section 477A(1))

3. The Court may, pursuant to sub section 477A(2), extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the Federal Court is satisfied that it is in the interests of the administration of justice to do so.

An application for extension of time may be made using a Form 5 and must be supported by an affidavit setting out the nature of your case and the reasons why the extension of time should be granted.

4. The original application plus a copy for the Minister must be delivered to the Federal Court. You can do this by bringing the documents to the Registry, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court’s website.

Make sure you have a copy of the documents for yourself.

5. Pay the application fee. If you cannot afford this fee you may be able to ask the Court to reduce it*. You can get a form to ask the Court to reduce payment and information about the circumstances where a reduction can be given on the Exemption and reduction of fees pages or from the Registry.

* Note: Up to October 2010, the Court could waive Court fees in some circumstances. Changes to the Federal Court of Australia Regulations 2004 introduced on 1 November 2010 means the Court can no longer waive fees; the Court can however, reduce the payment of Court fees if it will result in financial hardship.

6. If the documents are in the correct form Registry staff will stamp the original and the copies. The Registry will also write on the application the time and date when the matter will first be considered by the Court at a directions hearing.

7. You must arrange for a stamped copy of the application to be personally served on the Minister at least 5 days before the date of the directions hearing. For more information about personal service see Order 7 rule 2.

How to fill in your Application

Please read all of these notes before completing the application form.

These instructions assume that you are not represented by a lawyer.

Heading

In the spaces provided, write:
• your full name as the applicant;
• the Minister for Immigration and Multicultural and Indigenous Affairs as the respondent.

Paragraph 1

In the space provided write the date on which you were notified of the decision you are appealing.

Paragraph 2 (Relief sought)

Write the orders that you want the Court to make.

Paragraph 3 (Grounds of appeal)

In this part of the form you must write down the errors of law that you say the decision-maker made. You can set out as many errors as you wish. Give each error a new paragraph number.

If you are alleging that the there has been fraud, bad faith or bias on the part of the respondent you must include specific details of the fraud, bad faith or bias in the application.

Disclosure under section 486D Migration Act 1958

This disclosure must be completed for the purposes of subsection 486D of the Migration Act.

Subsection 486D(2) provides that a person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. Proceedings required to be disclosed under subsection (2) include proceedings brought before 1 December 2005.

Subsection 486D(5) provides that:
judicial review proceeding, in relation to a tribunal decision, means:
(a) a proceeding in the Federal Magistrates Court in relation to the tribunal decision; or
(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
tribunal decision means a privative clause decision, or purported privative clause decision, made on review by a Tribunal under Part 5 or 7 or section 500.

Certificate under section 486I Migration Act 1958

This certificate must be completed by any lawyer who is acting on your behalf. It can be deleted if you are not represented by a lawyer.

Section 486I provides that:
(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.

Date and signature

The notice must be signed and dated.

Respondent details

In the space provided after the words "To the respondent", write the address of each respondent.

Paragraph (b) after the words "Take Notice"

Paragraph (b) is completed by the Registry staff when you file the application

Address for service

In the next space provided write the address to which the Court or the respondent can deliver or send letters or documents to you. The address must be in Australia. The address must be a street address and cannot be a Post Office Box. This is called your address for service.

Filing details

Under the horizontal line at the bottom of the notice write:
• your name
• your address for service, telephone number and facsimile number (if any).

Protection visas

If your application relates to a decision about a protection visa you will be given a code name (eg NARV) which will be used on all Court documents in order to protect your identity.

If you are in detention

If you are in detention you are exempt from paying the filing fee.

You must contact the Registry as soon as possible so that the Court can arrange for you to be able to attend the directions hearing. If video-link facilities exist at the centre you may appear at the directions hearing by video-link rather than in person.

Interpreters

The Court may arrange for an interpreter to come to the hearing.

If you need an interpreter you must contact the Registry of the Court at least one week before the hearing. If you do not contact the Registry they may not be able to get an interpreter and the hearing will be delayed.

You can also call 131 450 and speak to a telephone interpreter. You do not have to pay to use this service [in Western Australia, you may contact the Registry who will arrange a telephone interpreter for you].

(December 2005; updated June 2009)