Visa Appeal Federal Circuit Court [Updated 2020]
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How to appeal to the Federal Circuit Court of Australia (FCCA)?
Timeframe for an FCCA appeal (from AAT) is generally 35 days. It is necessary to establish a jurisdictional error in order to have a successful outcome in an FCCA appeal.
It is possible to go to the FCCA from a decision of the AAT.
In rare instances, some clients decide to go to the FCCA directly from a primary decision based on jurisdictional error.
Immigration appeals are also called applications for review.
Appeal to the AAT
The most common immigration appeal is an application for review of a negative visa decision you might receive from the Department of immigration.
This usually occurs when there is a decision made by the Department of Immigration (delegate or the Minister) to refuse a visa application, to refuse a nomination application, to refuse a sponsorship or to refuse a citizenship application.
Application for review can also be filed in the Administrative Appeals Tribunal after a decision has been made to cancel a visa which is already been granted to a person.
Appeal to the Federal Circuit Court
Another common appeal that can be made is when an application for review has been decided by the Administrative Appeals Tribunal (member) and the tribunal member agrees with the decision made by the Department of Immigration but there is perceived to be some error in the legal sense, made by the Tribunal.
In this circumstance it is usually possible to bring an application before the Federal Circuit Court of Australia (FCCA or simply FCC) seeking court orders that the decision of the Tribunal ought to be quashed and a fresh decision be ordered to be made – one which is made in accordance with the law and without legal error.
Appeal to the Federal Court of Australia
A less common appeal is one that is made to the Federal Court of Australia as distinct to the Federal Circuit Court of Australia.
This type of appeal is required in special circumstances. One example is where the Minister or Assistant Minister has made the decision personally to refuse or to cancel a visa and the usual right of appeal which would be made to the Federal Circuit Court is not allowed.
In the case of a visa refusal or visa cancellation by the Minister personally under section 501 of the Migration Act 1958 because of a criminal record and the failure of the character test because of a substantial criminal record, there is no appeal pathway to the Federal Circuit Court but there is an appeal pathway directly to the Federal Court of Australia.
The other typical scenario where an application for appeal is filed in the Federal Court of Australia is when a decision has been made by a judge in the Federal Circuit Court of Australia and it is perceived that the decision of the judge in the Federal Circuit Court is infected with legal error.
One very good example old this type of case is found in the case of DAO16 v The Minister.
If you’re looking to understand the various appeals rights in respect of immigration law decisions then DAO16 is an excellent case to read and understand. This decision of the Full bench of the Federal Court of Australia is often cited in appeals seeking to establish that immigration decisions are legally unreasonable or otherwise infected with legal error.
In the case of DAO16 there were several applications made to the Department of Immigration and there were several decisions made to refuse the visa application lodged by DAO16.
Ultimately applications were filed both in the Federal Circuit Court of Australia by me on behalf of DAO16.
We were not successful before the Federal Circuit Court but we then filed that application appealing the decision to the Federal Court of Australia and that appeal was heard by three justices of the Federal Court of Australia.
We were successful in persuading the three justices. In what might have been the biggest legal victory in my career, the court ordered that the decision of the Federal Circuit Court be set aside because the decision of the Federal Circuit Court judge was legally unreasonable.
A further consequence of the decision of the full bench of the Federal Court of Australia in the case of DAO16 was that the decision of the Tribunal was also ordered to be quashed and the Tribunal was ordered to make a fresh decision (free of legal error) in accordance with law.
What the full Federal Court found was at the Federal Circuit Court judge ought to have found that the five you had infected with legal error however the Federal Circuit Court judge had failed to make that finding.
In order to correct this failing on the part of the Federal Circuit Court, the Federal Court of Australia set aside the decision of the Federal Circuit Court judge and ordered the Tribunal’s decision to be quashed.
Are you are looking to make any application for appeal against an immigration decision?
Please consider getting expert advice. I have personally assisted in more than 300 applications for review at the Administrative Appeals Tribunal and my practice has a very strong focus on fighting immigration appeals in the Federal Circuit Court and in the Federal Court of Australia.
Be sure to email me a copy of your latest immigration decision!
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