Applications to the Federal Circuit Court and Federal Court of Australia

Decisions made by personally by a Minister administering the Migration Act 1958 or on review by the Administrative Appeals Tribunal can be reviewed by a Court in an application for judicial review. Most of these decisions, except for character-related decisions made under s 501 of the Migration Act, can be reviewed by the Federal Circuit Court of Australia.

It is vitally important to understand that a Court will not decide whether the preferable decision was made in your matter. The Court can only decide if the decision made was lawful. Because of this, the Court generally can’t accept any new evidence or set aside a decision simply because it disagrees with the Minister’s (or the AAT’s) decision in your case. Whether a visa-related decision was lawful is a complex issue and the great majority of applications for judicial review are dismissed.

However, our firm does act in judicial review applications to both the Federal Circuit Court of Australia and the Federal Court of Australia if we consider that an application has reasonable prospects of success. If we offer to act on your behalf, it will be on an at least partially no-win, no-fee basis and our fees will be limited to the amount payable by the Minister in respect of your legal costs.

We also act in appeals from decisions of the Federal Circuit Court to the Federal Court of Australia. If we think you have sufficient prospects of success, we will also offer to act on an at least partially a no-win, no-fee basis.

If you are considering applying or appealing to the Federal Circuit Court or Federal Court of Australia, book in a free consultation with our firm. At that consultation we will provide you with advice on your prospects of success and let you know whether we can offer to act on your behalf.

Cases our Joel McComber has acted in

(click links for case details)

Recent posts about judicial review

Judicial Review
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‘Removed’ does not mean ‘removed’ after all: Moorcroft v Minister for Immigration… [2020] FCA 382

On Monday this week, the Federal Court of Australia handed down a decision allowing our client’s appeal of the FCCA’s and, today, we were notified that our client has been granted a Special Category (subclass 444) Visa, ending an over two-year ordeal for our client (who ended up spending over six months in immigration detention as a result). Below is the evidence (if you don’t believe us).

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Judicial Review
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So you beat visa cancellation under s 501? Get a new visa ASAP to avoid the risk of cancellation by the Minister under s 501A(2)!

Even if you receive a positive decision from a Ministerial delegate or the AAT under s 501 of the Migration Act, you remain at risk of having your visa cancelled personally by the Minister under s 501A(2).

However, getting a new visa before the Minister has the chance to make a decision under s 501A(2) may limit your risk of future cancellation.

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Administrative Appeals Tribunal
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The one where the murder victim rocked up to the Tribunal hearing: HZCP v Minister for Immigration and Border Protection [2019] FCFCA 202

When can non-citizens going through cancellation processes dispute the factual basis on which they were sentenced and convicted? The Full Court of the Federal Court of Australia’s recent decision in HZCP v Minister for Immigration and Border Protection provided an answer to that question, but raised a whole bunch more.

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Application for judicial review of cancellation decision

In this case, we successfully acted on behalf of an NZ citizen whose visa was cancelled under s 116(1)(e) immediately after arriving in Australia (while in immigration clearance).

We lodged an application for judicial review in the Federal Circuit Court of Australia and the Minister ultimately agreed that the cancellation of our client’s visa was unlawful.

As the Minister consented to the cancellation decision being set aside, no decision was published by the court. 

FCCA - Judicial Review Decision

Moorcroft v Minister for Home Affairs [2019] FCCA 772

In this case, the Department of Home Affairs had previously purported to remove our client from Australia while she was a lawful non-citizen. When she attempted to return to Australia to resume her life, she was refused a subclass 444 visa because she had previously been removed from Australia (albeit, unlawfully). 

We argued that only a lawful removal from Australia prevents a New Zealand citizen from being granted a further subclass 444 visa. However, the Court found that even if a NZ citizen’s removal from Australia was unlawful, they would not be eligible to be granted a further subclass 444 visa.

The Federal Circuit Court’s decision is currently on appeal to the Federal Court of Australia 

Salter v Minister for Home Affairs & Anor [2019] FCCA 1298

This was an unsuccessful application for judicial review of a decision of the  the AAT to affirm an earlier decision of the Minister’s delegate to cancel the Applicant’s visa under s 116(1)(e) of the Migration Act 1958

The central issue in the application for judicial review was whether the Tribunal failed to afford procedural fairness in reaching its decision by failing to put specific, relevant matters determinative of the application for review to the Applicant’s wife (who was called by the Tribunal as a witness) and in respect of which the Applicant’s wife would have been able to give meaningful evidence. Heavy reliance was placed on the Federal Court of Australia’s decision in Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 496. 

The Federal Circuit Court’s decision was appealed to the Federal Court of Australia. 

This was a successful appeal of the Federal Circuit Court’s decision in Moocroft v Minister for Home Affairs [2019] FCCA 772

The Federal Court agreed with our submission that our client has not been previously been ‘removed’ for the purposes of the Migration Act 1958 despite having been previously unlawfully removed.

You can read more about this decision on our blog here.

Salter v Minister for Immigration... [2019] FCA 2054

This was an appeal of the Federal Circuit Court’s decision to dismiss our client’s application for judicial review. Although our client’s application was unsuccessful, Justice Logan of the Federal Court of Australia said the following (at [31]):

In these circumstances there is no error of the kind of which complaint is made in the ground of appeal by the learned primary judge. Indeed, one way of disposing of the appeal would have been to have recorded that the appeal had to be dismissed for the reasons given by the learned primary judge, but so doing would not have done justice to the argument carefully developed on Mr Salter’s part by his solicitor, Mr McComber or, for that matter, to the response to that on behalf of the Minister.

 

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