Migration Guide: Migration Matters in the Federal Court
- About migration matters
- Practice & procedure
- Fees, forms and rules
- Latest Full Court judgments
Migration concerns the movement of people across boundaries. Australian federal migration law relates to the entry into, and residence in, Australia by people who are not Australian citizens. The two key sources for Australian federal migration law are:
Issues concerning Australian citizenship may also involve the Australian Citizenship Act 2007 (Cth).
Jurisdiction of the Federal Court
Migration cases may be heard by the Federal Court or the Federal Circuit Court. However, in many matters, the original jurisdiction of the Federal Court is limited by the Migration Act and most first instance applications must be heard in the Federal Circuit Court. For further information, visit the Federal Circuit Court's website.
If the migration matter is an appeal from the Federal Circuit Court or an appeal-related application, then the Federal Court will generally have jurisdiction to hear it within the Court's appellate jurisdiction. Further information regarding migration appeals from the Federal Circuit Court is available from the Appeals Guide on the Court's website.
The information on this page relates to migration matters in the Court's original jurisdiction. "Original jurisdiction" refers to cases that can be started in the Federal Court, other than appeals. The subject is very technical.
Under section 476A(1) of the Migration Act, the Federal Court has original jurisdiction in relation to a migration decision if and only if:
- the Federal Circuit Court transfers a proceeding to the Federal Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth);
- the decision is a "privative clause decision" or "purported privative clause decision" of the Administrative Appeals Tribunal (AAT) on review under s 500 of the Migration Act
For example: decisions relating to the removal of non-citizens who are sentenced for 12 months or more for a criminal offence.
- the decision is a "privative clause decision" or "purported privative clause decision", made personally by the Minister under ss 501, 501A, 501B or 501C of the Migration Act;
For example: refusal or cancellation of visa on character grounds
- the decision is made by the AAT under ss 44(3) or is a referral by the AAT under 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act);
If the Federal Court has original jurisdiction in relation to a migration decision under (a), (b) or (c) above, that jurisdiction is the same as the jurisdiction of the High Court of Australia under paragraph 75(v) of the Commonwealth Constitution.
A "migration decision" under the Migration Act includes privative clause decisions, purported privative clause decisions and non-privative clause decisions. These terms are all defined in the Migration 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.
What the Court cannot do in migration proceedings
In hearing a migration case, the Federal Court cannot decide whether a visa should or should not be granted, nor whether a visa should or should not be cancelled. Whether the Court would have made the same, or a different, decision than the decision-maker is not something that can be canvassed in a hearing.
What the Court can do in migration proceedings
The Court can consider whether a legal mistake has been made by the decision-maker. Current legal terminology describes legal mistakes that the Court can do something about as "questions of law" (under ss 43(3) or 45(2) of the AAT Act) or "jurisdictional errors". Examples of jurisdictional errors include the decision-maker:
- not adopting a fair process in making the decision;
- identifying a wrong issue;
- ignoring materials the decision-maker was required to look at;
- relying on materials the decision-maker 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.
The Court is in the process of developing a practice note for migration matters. In the interim this "Migration Guide", and other relevant information contained on the Court's website, set out the practice and procedure in the Court for migration matters.
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:|
|Guides and other useful information:|
Please note that Registry staff cannot provide legal advice in relation to your application. However, please see the list of organisations that may be able to provide you with legal assistance.
Filing fees for commencing a proceeding in this NPA may apply. Information about Court Fees, including the fees payable and circumstances where an exemption or deferral can be given is available in Fees, Forms & 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
Application for review of a migration decision
An application to the Federal Court to review a migration decision must be made within 35 days of the date of the migration decision.
A person who wants to make an application for the review of a migration decision must file:
Application for Extension of Time
A person may apply to the Court to extend the time limit, by filing:
The affidavit in support should:
Applying for an Adjournment
If you require an adjournment of your hearing, prior to requesting an adjournment you should seek the consent of the other parties involved. If the other parties do not consent, the Court may have to hold a hearing about your adjournment application. You must apply to the Court, in writing, together with supporting material.
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.
- Australian Citizenship Act 2007 (Cth)
- Commonwealth of Australia Constitution Act (Cth)
- Federal Circuit Court Act of Australia 1999 (Cth)
- Federal Court of Australia Act 1976 (Cth)
- Immigration (Guardianship of Children) Act 1946 (Cth)
- Judiciary Act 1903 (Cth)
- Migration Act 1958 (Cth)
- 16 Oct 2017:
AIB16 v Minister for Immigration and Border Protection  FCAFC 163
MIGRATION - appeal from decision of Federal Circuit Court of Australia - statutory construction of s 91W of the Migration Act 1958 (Cth) - consideration of "reasonable explanation" for provision of bogus document - circumstances where delegate considered appellant's claim to fear persecution as part of appellant's explanation for the provision of…
Judge: Tracey, Mortimer and Moshinsky JJ
- 21 Sep 2017:
Wozniak v Minister for Immigration and Border Protection  FCAFC 148
ADMINISTRATIVE LAW - application for leave to appeal out of time from orders dismissing application for judicial review - decision not to revoke mandatory cancellation of visa - character test - substantial criminal record - s 501(3A) of Migration Act 1958 (Cth) - application dismissed with proposed "Falzon" ground stood over for determination…
Judge: Kenny, Griffiths & Bromwich JJ
- 20 Sep 2017:
Minister for Immigration and Border Protection v Nguyen  FCAFC 149
MIGRATION - application for a carer's visa - whether community services reasonably available ADMINISTRATIVE LAW - review of reasons provided - reasons fail to adequately address a central question - findings on material facts - not satisfied by a statement of a conclusion - need to refer to evidence on which finding of material facts based - a…
Judge: Flick, Barker and Rangiah 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.