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My AAT was unsuccessful, what’s next? Federal Circuit Court

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In our previous blog, we explained that when a visa is refused by the Department of Immigration (DIBP), you can, under certain circumstance, take the decision on review with the Administrative Appeals Tribunal (AAT). This blog will potentially explain going to Court if your review at the AAT was unsuccessful.

Judicial Review at the Federal Circuit Court FCC

If a decision at the AAT was negative, you may potentially be able to go to Court and take the AAT decision on judicial review. For migration decisions, only the Federal Circuit Court can hear your case.

Not all AAT decisions can be reviewed in Court but only the ones with a legal or a ‘jurisdictional’ error made by the Tribunal member in reaching his/her decision. That means that the Court decides whether the AAT decision was made following the law. The Court will not consider nor decide the merits of your application or whether or not your visa should be granted. The only issue the Court will focus on is whether the AAT has made a legal error in making its decision.

FCC Procedures

Timeframes

Once your case was unsuccessful at the AAT and before you go to Court, you should obtain legal advice from a lawyer as soon as possible. Migration agents who are not lawyers cannot assist with Court procedures. Be aware of non-lawyers offering advice or assistance in this matter. Once the lawyer assesses your case and identifies a potential legal error in the AAT decision, you can then proceed to take the decision on judicial review. You will have 35 days from the AAT decision to appeal to Court. This time can be extended on limited occasions, but the Courts do not have to accept a late application.

How to file the case in Court

Once you decide to review the AAT decision to Court, you will have to:

  1. file an application with the Court registry. On the application, you will have to explain what the legal error was in the AAT decision. This is not a chance to talk about the merits of your case.
  2. You will need to attach an affidavit with your application. The affidavit will need to explain all the relevant facts and circumstances in relation to the ‘jurisdictional’ error and must include the decision to be reviewed and any statement of reasons for the decision.

The application can be filed electronically, in person, by mail or sometime by fax or email at the Court registry. You can download the templates for the application and the affidavit from the FCC website.

Service

After you file your application and affidavit with the FCC, you must give a copy of the filed documents to the Minister of Immigration, the DIBP’s lawyers appointed to your case. This is called the service of documents and you have to comply with this rule which also applies to all documents you provide to the Court later on in the process. If you are represented, your lawyers will do that on your behalf.

Court Hearing

After you file your application, the Court will contact you/your lawyer to set a hearing date. The first hearing date is referred to as a ‘directions hearing’ and may be scheduled quickly and the Court will then decide one of the following:

  • schedule an immediate hearing or a second hearing date, to require you to show that you have an arguable case;
  • schedule a final hearing date;
  • a stay or interim (temporary) orders;
  • file an amended or further documents.

The Minister will have their lawyers attending the hearing. It is not advisable that you go to Court without being represented by a lawyer. If you are not represented and if the Court does not excuse you from attending, you must attend Court whenever there is a hearing. If you are represented, then your lawyers will attend on your behalf. If you fail to attend a hearing, the Court may dismiss your application in your absence and award costs against you. You must then pay the legal costs for the Minister.

If your case has merits and the Court accepts it, your final hearing date can be scheduled after many months. You will need to make sure that you have a visa (usually a bridging visa) during this period.

During the final hearing, the judge will discuss all the legal issues. The merits of your case will not be mentioned at the hearing unless they are related to the legal error you rely on. The Court hearing will be very different from the AAT hearing. Courts are a lot more formal and the Court procedures are very complex. The Minister’s lawyers and/or barrister(s) will attend the hearing to argue the DIBP’s case. If you are unrepresented, your case may be negatively affected.

Legal Costs

Going to the Court in Australia is expensive and there is no guarantee that you will win. Also, the losing party will have to pay the legal costs of the winning side. You will need to pay a solicitor and a barrister (if you are represented) in addition to the Court fees and the other side’s legal fees, if you lose. If the Court dismisses your application and it does not proceed, you will probably have to pay the Department of Immigration’s legal fees. If you decide not to continue and to withdraw your application, you will generally pay a reduced proportion of the Department’s legal costs. This may still amount to thousands of dollars.

The Court Decision

The Court can make one of the following decisions:

  • Dismiss your application without a final hearing- you lose
  • Make a decision in your favour- you win
  • Make a decision in the Department of Immigration’s favour- you lose

If you are successful, your case will be sent back to the AAT to be reconsidered by a different AAT member. The AAT will then reassess the merits of your case and you may or may not be successful at the second AAT process.

Useful tips

  • Australian visas and Court system are more complex than what you may think.
  • If you are holding a bridging visa, it will expire 28 days after the AAT decision. You can apply for another bridging visa only once you file an application with the Court.
  • You can represent yourself in Court but given the complexity of the procedure and the importance of your review case, you might want to a solicitor and also a barrister to assist in your case. Migration agents cannot assist.
  • A Court decision will have an impact on your visa.

 

About the author 

This article was written by Marial LewisMarial is an admitted lawyer in Australia and holds a double degree in Commerce and Law as well as a Master degree in Legal Practice. She was awarded John Gibson Young Migration Lawyer of the year award in 2020 and was a finalist in multiple awards in 2019 such as 30 under 30, the Rising Star of the year and the Suburban Lawyer of the year.

IMPORTANT NOTICE: ImmiAdvisor recommends you obtain your own independent immigration, legal, accounting, financial or taxation advice as appropriate. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all information provided through this blog/website. In no event will ImmiAdvisor Pty Ltd or the author of this article be liable to you or anyone else for any decision made or action taken by you or anyone else in reliance upon any information contained on or omitted from this blog/website. Immigration law is complex and is subject to constant regulatory and policy change.  The information provided here may therefore be outdated and no longer accurate.  The information provided above is a general guide only – it is not tailored for your specific circumstances or immigration purposes and you must under no circumstances rely on this information for immigration planning or the lodgement of an application with the Australian government or related bodies.  In order to ensure your eligibility is accurately assessed and to allow for tactical decision making that would best suit your desired immigration outcome, it is essential that you consult with a capable immigration advisor registered with the relevant body.

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Marial Lewis

Marial is an accredited specialist lawyer in Immigration Law and a multi-award…

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