The Federal Circuit Court has the authority to review a decision to ensure it’s made in accordance with the law, specifically checking for any jurisdictional errors.
Although the Federal Circuit Court operates independently from the Department of Immigration and Border Protection’s decision-makers, it doesn’t assess the merits of individual visa applications, but is an avenue for review if you believe a decision was not made in accordance with the law.
What can the Federal Circuit Court review?
The Federal Circuit Court of Australia has the authority to review certain decisions made under the Migration Act 1958, which includes those made by the Minister for Immigration and Border Protection as well as the Administrative Appeals Tribunal.
If the Court detects a jurisdictional (legal) error, it can send the case back to the original decision-maker and stop the Minister from acting based on that decision.
However, the Court will not re-evaluate the details and rationale behind the visa application or issue a visa itself. It also won’t consider new factual information unless it’s pertinent to determining if the decision-maker made a jurisdictional error.
How we advocate for you
At NB Migration, our immigration lawyers are experienced in providing representation in cases before the Federal Circuit Court.
Please note that a review application must be submitted within 35 days from the date of the migration decision, and it’s usually required to make an additional visa application.
We invite you to schedule a complimentary initial consultation if you’re interested in exploring how we can help with your case.
Reach out to NB Migration today to discuss your circumstances.
The Federal Court of Australia
Under certain conditions, a migration issue might be escalated to the Federal Court of Australia. It’s important to note that this differs from Federal Circuit Court proceedings.
A decision in which the Federal Court may exercise its jurisdiction includes the suspension, cancellation, revocation or refusal of a visa and also situations where there is a failure or refusal to make a decision.
The Federal Court of Australia doesn’t reassess the merits of a migration decision. However, it can determine whether a jurisdictional error influenced the migration decision. Such errors might include the decision-maker focusing on an incorrect issue, posing an inaccurate question, overlooking pertinent information, depending on irrelevant data, or misapplying the law to the facts in a way that impacts their authority.
Similar to applications to the Federal Circuit Court, if you wish for the Federal Court to review a migration decision, your application must be submitted within 35 days from the date of the original migration decision. Additionally, you may need to make another visa application.
What power does the Federal Court have?
Under to the Migration Act 1958, the Federal Court is granted original jurisdiction regarding a migration decision in several scenarios. These include instances where the Federal Circuit Court transfers an ongoing proceeding related to the decision to the Federal Court.
It also has jurisdiction over what is called a privative clause decision, or what appears to be such a decision. The same applies if the Minister personally makes a privative clause decision.
A privative clause is a legal measure designed to make certain decisions immune from judicial review. The Federal Court has jurisdiction in certain circumstances to ensure that judicial errors have not been made.
The Federal Court holds jurisdiction in instances where the Administrative Appeals Tribunal Act 1975 provides it with such powers over the decision.
