Migration Court Appeal and Migration Review

Migration Court Appeal and Migration Review

Migration is defined as the movement of persons from one jurisdiction to another. In the context of Australian immigration law, migration refers to the movement of persons that are not citizens of Australia into Australia to live and work in the country. 


Judicial review

In Australia, there are two basic laws governing migration and they are – Migration Act 1958 and Migrations Regulations 1994. When there is any issue that requires migration review, the Federal Court will handle the immigration court appeal.


Immigration review before the Federal Court


The Federal Circuit Court is charged with the responsibility of hearing migration cases on first instance. In other words, they have original jurisdiction to hear migration matters as provided by the Migration Act.

The Federal Court on the other hand has appellate jurisdiction to entertain migration reviews of decisions coming from the Federal Circuit Court. The Federal Court can also exercise original jurisdiction over immigration decisions in the following instances –

  • Transfer of migration proceedings by the Federal Circuit Court to the Federal Court by virtue of section 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 section 500 of the Migration Act.
  • The decision is a privative clause decision or purported privative clause decision made personally by the Minister for Immigration under section 501, 501A, 501B or 501C of the Migration Act.
  • The decision is made by the AAT under section 44 (3) or is a referral by the AAT under section 45 (2) of the Administrative Appeals Tribunal Act 1975 (Cth)


What Does A Court Appeal For An Immigration Decision Involve?

The court’s role is to determine whether a jurisdictional error (also called a legal error) has occurred in your case. A legal error can include that you were not given a fair go at your AAT hearing or the wrong legal test was used in your decision.


The Migration Court Appeal – Proceedings


During a migration review proceeding, the Federal court does not have the jurisdiction to decide whether a visa should or should not be granted or whether such a visa including partner visa should be cancelled. The court only has the capability to decide if a legal mistake has been made by the decision-maker.


The Federal court is obliged to consider jurisdictional errors made by the original decision maker or questions in relation to law.


Some of the jurisdictional errors include –

  • Unfair decision making process
  • Unreasonable legal decision
  • Wrong application and interpretation of the law
  • Reliance on wrong materials by the decision maker
  • The decision maker not relying on relevant materials
  • Identifying a wrong issue
  • Making a decision to which there was no evidence or that was not reasonably open on the materials.


What Are The Eligibility Requirements For An Appeal In Court Of An Immigration Decision?

For a migration review to commence, the party seeking such a review must apply to the Federal Court within 35 days after the decision was made. The person must file a form 70 – which is an originating application for review of a migration decision.

Where the applicant has run out of time, then an application for extension of time which is form 67 accompanied by form 70 and an affidavit which is form 59. All forms must be filed in the Federal Court.

Where the applicant requires an adjournment of the migration matter, the consent of the other party must be sought and obtained. If the other party opposes the adjournment, then the court might have to hold a hearing for the adjournment application. Before the court can grant an adjournment, it must consider the reasons submitted and the position of the other parties.



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