Federal Court Appeals

The last realistic avenue to challenge a refusal of your visa application or cancellation of your visa is an appeal to the Federal Court of Australia. Appeals in the Federal Court require specialised knowledge and an up-to-the-minute understanding of case law. This is an area of particular expertise for us so we can provide full representation in an appeal to the Federal Court at a very competitive rate. We provide some general information about how Federal Court Appeals are initiated and the process below.

 
 

Federal Court Appeals

 

Starting the appeal

 

The first step in an appeal to the Federal Court is to identify the correct form used to start the appeal. If the appeal is from a judgment of the Federal Circuit Court, the correct form is a Form 121. If the appeal is from a judgment of the Federal Court exercising original jurisdiction, the correct form is Form 122. In either case, the form is called a notice of appeal.

There are forms for appealing directly from the Administrative Appeals Tribunal (AAT) (eg Form 75). However, in immigration matters, a person cannot appeal directly from the AAT and must apply for judicial review instead. Appeals are often confused with judicial review and it is important to understand the difference. If you have just received an adverse AAT decision and have not yet applied for judicial review, please find more information here.

Once the correct form is identified, it must be filled out, filed with the Court and served on the Minister for Immigration’s lawyers (more on this below). This must be done within 28 days after the day on which the judgment appealed from was delivered. If 28 days have already passed, then the correct form becomes a Form 67, which is called an application for an extension of time. The Form 67 must be filed with an affidavit which explains why the notice of appeal was not filed within time and the reasons an extension ought to be granted. The affidavit must also annex the proposed notice of appeal (either a Form 121 or Form 122).

If you or someone you know is initiating an appeal in the Federal Court, get in touch for a free 15 minute consultation at 08 6558 1838, schedule a call or request an appointment.

 

Filling out the notice of appeal

 

The hardest part of starting an appeal in the Federal Court is filling out the notice of appeal correctly and effectively. While parts of the form just need basic data entry, the parts which are required to set out the relief sought (i.e. what you want the Court to do) and the grounds of appeal are much more difficult to complete.

The relief sought, in immigration matters, will invariably be along the lines of the following:

  1. Appeal allowed

  2. Set aside the orders made by the primary judge and in lieu thereof:

    1. The decision of the Tribunal/Minister/Other be set aside

    2. The matter be remitted to the Tribunal/Minister/Other for determination according to law

    3. The Minister pay the Applicant’s costs

  3. The Minister pay the Appellant’s costs

There are other forms of relief, such as declarations and injunctions, that can be sought in an appropriate case. The Court cannot grant a visa or decide whether a visa ought to be cancelled.

The grounds of appeal must, in brief but accurate terms, set out what the errors are that the primary judge made in the judgment below and why the relief sought ought to be granted. This is a very technical area of law, very few lawyers, let alone self-represented litigants, are able to draft good grounds of appeal.

A judge might make an error by not identifying the correct legal principle, by not applying the correct legal principles properly to the facts of the case, or by making a wrong finding of fact. In order for your appeal to succeed, any error by the judge must, normally, have led to the judge failing to find that the Tribunal/Minister/Other made a jurisdictional error. Find information on what jurisdictional error is here.

If you or someone you know has an appeal in the Federal Court, get in touch for a free 15 minute consultation at 08 6558 1838, schedule a call or request an appointment.

 

Filing and serving the notice of appeal

 

After the notice of appeal has been filled out, it needs to be filed and served.

Filing the notice of appeal can be done in person at the Federal Court registry or online through elodgment. Anyone can register for a free elodgment account.

If the notice of appeal is correctly filled out, it will be accepted for filing as long as you can pay the filing fee or you qualify for an exemption (for instance on the grounds of financial hardship). If you need to apply for an exemption, bear in mind that it can take several days to be approved and may delay the filing of your notice of appeal. The filing fee for a notice of appeal as at 1 July 2020 is $4,835.00.

After the notice of appeal is accepted for filing, the Court will stamp it. A copy of the stamped notice of appeal must be served on the Minister’s lawyers as soon as possible. Service can be via email and normally the lawyers that acted for the Minister in the Court below before the primary judge will accept service. However, if not, those lawyers or the Court will provide on request an email address which the Minister uses to accept service.

In some cases, the notice of appeal must also be served on the decision-maker (where that decision-maker is not the Minister or his delegate). For instance, the AAT will not accept service through the Minister’s lawyers. The lawyers for the Minister will, on request, inform you if you need to serve the decision-maker as well and provide an email address which is used by that decision-maker to accept service.

If you or someone you know has an appeal in the Federal Court, get in touch for a free 15 minute consultation at 08 6558 1838, schedule a call or request an appointment.

 

What happens after an appeal is commenced?

 

After a notice of appeal has been filed and served, the Court will list the appeal for a case management hearing. At this hearing, the Court will make programming orders.

Programming orders set time limits for each of the parties to do certain things like file an appeal book and file written submissions.

A date for the final hearing of the appeal will also be set at or just after the case management hearing. The appeal hearing will be where the Court will hear oral argument from the parties about whether any of the grounds of appeal establish that the relief sought ought to be granted.

At the conclusion of the appeal hearing, the Court will usually adjourn to consider the case and write reasons for judgment. This can take several days or several months. The judgment will usually be emailed to both parties once it is available.

If you or someone you know has an appeal in the Federal Court, get in touch for a free 15 minute consultation at 08 6558 1838, schedule a call or request an appointment.