Migration Guide: Migration Matters in the Federal Court

About migration matters

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:

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.

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.


Practice Notes

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.


Fees, Forms and Rules

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:

Forms:
Rules:

Application for Extension of Time

A person may apply to the Court to extend the time limit, by filing:

Forms:
Rules:
Notes:

The affidavit in support should:

  • briefly (but specifically) state the facts on which the application relies and
  • why the application was not filed within time

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.


Legislation

All legislation


Latest Full Court Judgments

  • 6 Dec 2019: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
    MIGRATION - application for extension of time to appeal from a decision of the Federal Circuit Court - proposed ground of appeal not raised below - proposed ground of appeal would not succeed - delay excessive - explanation unsatisfactory - application refused
    Judge: Yates, Wheelahan and O'Bryan JJ
  • 2 Dec 2019: DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208
    MIGRATION - protection visa - appeal from a decision of the Federal Circuit Court of Australia - application for judicial review of a decision of the Administrative Appeals Tribunal (the "Tribunal") - decision of the first respondent refusing an application for a protection visa - whether the Tribunal committed jurisdictional error - whether the…
    Judge: Davies, Moshinsky and Snaden JJ
  • 28 Nov 2019: Secretary, Department of Home Affairs v CCA19 [2019] FCAFC 209
    MIGRATION - Minister's approval to bring relevant transitory person to Australia - whether the primary judge erred in construing s 198E of the Migration Act 1958 (Cth) and therefore erroneously found that two doctors were treating doctors for the respondent within the meaning of s 198E - meaning of "assessed the transitory person either remotely…
    Judge: Allsop CJ, Robertson and Moshinsky 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.