Under the Migration Act 1958 (Act) the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), Members of the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA) are the decision makers who will decide a visa application and will review the merits of your application to decide whether you should or should not be granted a visa.

If your visa is rejected or refused by one of these decision makers, then you can in certain circumstances appeal to the Federal Circuit Court (FCC) of Australia or the Federal Court of Australia (FCA). The Federal Court is the higher court in Australia’s Federal court system.

The Federal Circuit Court

The FCC may only review a decision in order to determine if a ‘jurisdictional error’ has been made. This means the Court determines if the decision has been made according to law. The Court is independent of the decision makers. The Court does not consider the merits of your application and whether you should or should not be granted a visa.

If the Court finds a jurisdictional error, it can:

• refer your case back to the decision maker, and.
• prevent the Minister from acting on the decision.

The Court cannot:

• reconsider the facts and reasons for your visa application
• take new factual information into account (unless it is relevant to a question of whether the decision maker made a jurisdictional error), or
• grant you a visa.

If you are unhappy with the decision, you may apply to the Court if you believe a jurisdictional error has been made. You should seek legal advice before filing an application.

You must file an application for review within either 28 days or 35 days of the date of the decision, depending on when your visa was granted. The Court may extend the time limit. If you require a time extension, you must ask for it in the application and explain why.

If you apply for a review you must complete:

• an application, and
• an affidavit.

The application must identify what jurisdictional error you believe the decision maker has made. In your affidavit, you must explain all of the relevant facts and circumstances relating to the alleged error. You must attach to your affidavit, a copy of the decision to be reviewed and any statement of reasons for the decision.

You will be required to pay a filing fee then serve the documents on the Minister.

The court will make orders at your fist appearance to outline how the call will be managed up to and including the hearing.

If you are unsuccessful then you will more than likely have to pay the other sides costs.

The Federal Court of Australia

The Federal Court has original jurisdiction under the Act in relation to a migration decision if and only if:

• the FCC transfers a proceeding to the FCA 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 AAT on review under s 500 of the 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 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 the first three dot points 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 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.

In hearing a migration case, the FCA 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.

The FCA 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.

Appeal your visa refusal

Our team of Registered Migration Agents and Immigration Lawyers have years of expense in assisting clients in appeals to all levels of the Federal court system. These appeal proceedings can be costly and complex so it is important to obtain expert advice and assistance.

Contact our team today to discuss your appeal against a visa refusal today.