Court Appeal

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Court Appeal

The Courts that may be appealed to for immigration matters are:

• The Federal Circuit Court of Australia (FCCA)
• The Federal Court of Australia (FCA)
• The High Court of Australia

Appealing a refusal or cancellation decision to the Courts is only available in certain circumstances which include:

• Appealing a decision by the Administrative Appeals Tribunal (AAT) to uphold the Department of Home Affairs refusal or cancellation decision; or
• To review the Minister of Immigration’s reasons to not revoke a mandatory visa cancellation.

The difference between a Tribunal Hearing and a Court Hearing

A Tribunal Hearing is what’s known as a Merits Review. At a Merits Review, all information is heard again along with any new evidence. A Merits Review hearing is essentially a re-hearing.

A Court hearing is what’s known as a Judicial Review. Judicial review is not the re-hearing of the merits of a particular case.  Rather, it is where a court reviews a decision to make sure that the decision-maker used the correct legal reasoning or followed the correct legal procedures.

On Judicial Review, if a court finds that a decision has been made unlawfully, the powers of the court will generally be confined to setting the decision aside and remitting the matter to the decision-maker for reconsideration according to law. There will be circumstances in which although a decision is not the correct or preferable decision on the facts, it will not be open to Judicial Review.

What Visa & Citizenship Lawyers will do for you if you want to appeal to the Court.

Visa & Citizenship Lawyers will:

• Assess your matter and inform you of the strengths and weaknesses of your case;
• Lodge a review application with the Court;
• Apply for a new bridging visa for you so that you can remain lawful in Australia (if required);
• Prepare evidence for the Court hearing;
• Attend the Court hearing with you and assist you in presenting your case before the Court.

Example 1*

Ezang attended the Tribunal hearing in Sydney and the Tribunal upheld the protection visa application refusal decision made earlier by the Department of Home Affairs. Ezang engages Visa & Citizenship Lawyers to see whether he can appeal the Tribunal decision to the Court. Visa & Citizenship Lawyers assess the Tribunal’s decision and inform Ezang that there appears to be jurisdictional error in the Tribunal’s decision and that there appears to be a reasonable chance of success in appealing on jurisdictional error grounds.
Ezang instructs Visa & Citizenship Lawyers to lodge an appeal application with the Court. Visa & Citizenship Lawyers prepare for and are successful at the Court hearing where the Court makes a decision to quash the Tribunal’s decision as it was found to be not lawfully made. The case is referred back to the Tribunal to be reconsidered in accordance with the Court’s directions about the law.

* (Names and facts have been changed to protect the identity of clients)

Example 2*

Sunny lived in Melbourne and held a partner visa until it was cancelled by the Minister. Sunny engaged Visa & Citizenship Lawyers to appeal the cancellation decision to the Court. The Court finds that the cancellation decision by the Minister was unlawful therefore Sunny continues to hold the partner visa as if it were never cancelled. The Court made a declaration that Sunny continues to hold the partner visa.

* (Names and facts have been changed to protect the identity of clients)