Original Jurisdiction of the Federal Court

The Federal Court has power to hear appeals in migration (and other) matters by exercising:

  • (limited) original jurisdiction; where a case or matter started in that court.
  • its appellate jurisdiction, where hearing a case from another court.

A “decision” includes the granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission, including a visa. It also includes a failure or refusal to make a decision.

In relation to migration matters, therefore, if the Federal Court has original jurisdiction, it can review those migration (or citizenship) decisions which the AAT cannot review, especially those:

  • made by the Minister based on character
  • actual or purported privative clause decisions made by the Minister; and
  • cases which the AAT, in consultation with the Chief Justice of the Federal Court, decide should appropriately be dealt with by the Federal Court.

What a Court cannot do in migration proceedings

Unlike decisions which the AAT can review, the Federal Court and the Federal Circuit Court cannot review the merits of a migration decision. The Court is only concerned with the “legality” of the decision, i.e. whether the decision has been affected by ‘jurisdictional error’. Examples of jurisdictional error include the decision-maker:

  • identifying a wrong issue;
  • asking a wrong question;
  • ignoring relevant material;
  • relying on irrelevant material; or
  • an incorrect interpretation and/or application to the facts of the applicable law,

Appellate Jurisdiction of the Federal Court

Appeals from judgments of the Federal Circuit Court

Under the Federal Court of Australia Act 1976, the Federal Court can hear appeals from judgments of certain courts, including.

  • judgments of a single Judge of the Federal Court whether interlocutory or final;
  • certain judgments of the Federal Circuit Court.

What the applicant must show – For an appeal to succeed a party must convince the Court that the Judge that heard the original case made an error of law of significance. Some examples of significant errors of law are that the Judge that heard the original case:

  • applied an incorrect principle of law; or

made a finding of fact or facts on an important issue which could not be supported by the evidence.

 Appeals to the High Court of Australia

There is no automatic right of appeal to the High Court from a decision of the Full Court of the Federal Court .

A party may apply to the High Court for permission (called ‘special leave’) to appeal, but this is only granted in special cases.­­­­­­­­­­­­­­­­­­­­­­

OUR SERVICES      As part of our services for the appeal, we shall:

  • analyse the decision for errors of law
  • If we are satisfied that the decision contained an error or errors of law:
  • draft and file the Notice of Appeal
  • apply for an extension of time to appeal, if necessary
  • prepare the content of appeal book
  • if we think that the appeal should be expedited
  • make an application for an expedited hearing
  • before the hearing
  • prepare a summary of our arguments and an outline of submissions for each issue
  • prepare a list of cases in support of our case
  • in exceptional cases, if it becomes necessary to introduce further evidence
  • make an application to the Court to allow further evidence
  • represent you at the hearing of the appeal.

WHY US ?    We are familiar with the Federal Court Rules.

We are lawyers, we know the law: we can analyse facts and relate them to the law and we appear in all Courts.