Visa Appeal To The Federal Court Of Australia [Update 2024]

Get Federal Circuit & Family Court of Australia Appeal Help Here

Note: The FCC is now called the Federal Circuit Court And Family Court Of Australia (“FCFCOA”). In this guide, I refer to the FCFCOA as the Court.

Why?

You normally get only two(2)  chances when applying for a visa inside Australia. The first chance is at the Department level and the second chance is at the Tribunal level.

You can go to the Court if you believe that you were denied your second chance at the Tribunal.

Of course, many people seek to make an application to the Court simply to buy time. This can perhaps be to acquire work experience or simply to work in Australia, or to find an employer sponsor or a life partner. They have until their time runs out when the bridging visa that they would be granted in association with a Court appeal expires.

Time period to file an appeal to the Court

The time frame for a Court appeal from the Administrative Appeals Tribunal (AAT) is generally 35 days.

Do not get this part wrong. Although the Court might be more forgiving in terms of allowing an extension of time, an extension of time request can be very problematic to achieve. Note that the AAT has usually no discretion whatsoever to extend the time period in which an applicant must file an application for review at the Tribunal. 

In the case of cancellations, this is usually within seven days and in the case of refusals really within 21 days of the decision. Take care to make sure that you have lodged in time!!

Need to Identify an error

It is necessary to establish a jurisdictional error in order to have a successful outcome in a Court appeal.

Identifying the error is probably the hardest thing about the process of appealing to the Court if you are serious about getting a positive outcome. 

Request an audio recording of your hearing

In my experience, it is invaluable to have reference to a transcription of the audio recording of your Tribunal hearing. You can get this audio recording for free. You need to approach the Tribunal registry and request the recording at the earliest opportunity. This is once you receive the decision or straight after an adjourned hearing.

Using a migration agent to identify the error

Not everybody and certainly not a migration agent is qualified to advise on whether a jurisdictional error exists. 

An experienced migration agent can help an immigration lawyer identify the error because of the agent’s involvement in the particular AAT appeal. 

What is essential, is to understand that the jurisdictional error needs to be ascertained by a qualified Australian legal practitioner and not a migration agent.

Fee Cost for filing the appeal at the court

An appeal to the Court following a decision of the AAT is filed at the registry of the Court. It costs $3365.

Offshore Cases

Most immigration decisions require you to have a decision from the Tribunal before you can bring any application before the court.

I guess the reason for this is to limit the number of applications filed in the Court. This allows the Court to focus on more important things than frivolous applications for example.

You have no appeal right to the AAT if, for example, you apply for an independent, unsponsored visa from overseas and the Department does not grant a visa. In such a case it may be possible to appeal to the Court to correct the decision of the delegate at the primary level. Certainly 99% of migration appeals to the Court arise only after a decision of the Tribunal. Or in the case of certain fast-tracked visa applicants for protection visas, after a decision of the Immigration assessing authority.

Terminology

Immigration appeals made after a negative Department decision are called “applications for review” at the Tribunal. The applicant is called the review applicant. When an application was made at the court the applicant is called “Applicant” and the appeal is called “an Application”.

Federal Circuit And Family Court of Australia Appeal – Nilesh Nandan Immigration Lawyer

Applying for an 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. My practice has a very strong focus on fighting immigration appeals in the Federal Circuit Court and the Federal Court of Australia.

I hope you would consider taking my advice and the services we offer before making your next immigration decision.  You can do this by booking a consultation with me, or by calling our office.

Be sure to email me a copy of your latest immigration decision! Remember to always request a copy of the recording at the end of the hearing.  To discuss this in detail contact MyVisa Immigration offices in Sydney, Melbourne, Brisbane, Adelaide and Perth.

Your Experience?

Please share your comments with me.

I’d love to know more about your experience!