Process of Federal Appeal Lodgement

APPLICATION PROCESS

Migration: I want to apply

Before you begin the formal application process, you should gather the information that is relevant to your application for review.

You will need to complete an Application – Migration Act form and prepare an Affidavit to support your application. An affidavit is a written statement prepared by a party or a witness in a court case. It is the main way you present evidence (facts of the case) to a court. Your affidavit must be in English (see I need an interpreter for information about translation) and in line with the formal requirements in the rules when it is filed.

If possible, you should prepare a typed affidavit. If that is not possible, you can hand write your affidavit, as long as you print clearly on only one side of the page. The content of your affidavit should be divided into paragraphs that are numbered. It is a good idea to divide an affidavit into sections under separate headings.

If you want to include evidence from someone else to support your case, such as a family member, friend or professional, you will need to file a separate affidavit on their behalf. You should only file an affidavit by a witness if the evidence is relevant to your case.

Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.

You can prepare your own affidavit, but it is usually hard to do so. If you want help preparing your affidavit, you should seek legal advice.

For more information about affidavits, see the fact sheet Preparing an affidavit.

Which documents do I need to file?

To formally ask the Court to consider your application, you need to file documents with the Court:

• a completed Application - Migration Act

• an Affidavit

• a copy of the migration decision you want reviewed and any reasons for the decision, and

• any other documents or evidence you want to rely on.

Your application must identify what jurisdictional error you believe the decision maker has made. In your affidavit, you must explain all the relevant facts and circumstances relating to the alleged error.

You must complete all parts of the application form. If you don’t, the form might be returned to you, causing a delay.

I need an interpreter

If you need an interpreter for your hearings, you should indicate this on your application form.

My application is urgent

If you believe your application is urgent, you should indicate this on your application form and explain why the application should be heard on an ‘expedited basis’. If your case becomes urgent while you are waiting for your final hearing, you can apply for an expedited hearing. Use the Application in a proceeding form together with an Affidavit to explain why your case is urgent. The Court will decide whether your case should be heard on an expedited basis.

Time limits

You must file your application for review within 35 days of the date of the migration decision. The Court can extend the time limit. If you want more time to file your application, you will need to mark this on your application form and explain in your affidavit why you need more time. If your proceeding has already begun, you should use the Application in a proceeding form together with an Affidavit to ask for more time. The Court will decide whether to give you more time.

Online filing

Wherever possible, you must file court documents using eLodgment. You can follow these instructions on how to use eLodgment or see the Federal Court website.

If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. Contact the Court if you are not sure how to file the documents.

What do I have to pay?

Filing fee

You will also need to pay a filing fee to the Court when you file an Application – Migration Act. In some circumstances, you may be exempted from paying court fees or a reduced fee may apply.

Current fees are available on the fees page.

To apply for a reduced fee, or an exemption from paying court fees because you cannot afford either the full or reduced fee, you need to file an Application for Exemption from Paying Court Fees or Reduction – Financial Hardship form, which is available from the Federal Court of Australia website. If this application is approved, this means that either you will pay the reduced fee or the fees will not apply.

If you are receiving legal aid, in immigration detention, hold a Centrelink Healthcare card or you and all other applicants in your matter are under the age of 18, you can apply for an exemption from paying Court fees using a different form called an Application for Exemption from Paying Court Fees – General, which is available from the Federal Court of Australia website:

What happens next?

Court staff will check that the application is complete and that you have done everything that is formally required, including paying the filing fee. The Court will then stamp the application. Stamping shows that your application has been accepted by the Court.

You must then notify the Minister by serving the application.

How do I notify the Minister?

Within seven days after you have filed the application, you must give a stamped copy of your application and supporting documents to the Minister and in most cases the tribunal or authority who made the decision. This process is known as ‘service’ of documents. You can serve the documents on the Minister via the Department of Home Affairs (the Department). The Department has offices in each capital city. Go to the Home Affairs website or call the Department on 131 881 for address details.

The Minister will usually file a response within 28 days after you serve the application on them.

Communicating with the Court

You can contact the Court registry for information about your case or if you need to give the Court information. You cannot communicate directly with the Judge allocated to decide your case (except in the courtroom).

It is important that the Court and the Minister’s solicitor know your current contact details, as they may need to contact you. If your contact details change, you must notify both the Court and the Minister’s solicitor in writing as soon as possible. Use this Notice of address for service form. Once you have completed it:

1. file it with the Court using the Commonwealth Courts Portal, and

2. notify the Minister in the same way that you notified them of the original application. 

If you cannot access the form online, contact the Court to get a copy of the form.

Can I withdraw my application?

If you decide to withdraw your application before your case is decided, you will need to complete a Notice of discontinuance and file it with the Court. You must also send a copy of the notice to the Minister’s solicitor. If there is less than 14 days before your final hearing, the Court will have to give you permission to discontinue your case. If you discontinue your case without a hearing, you will generally have to pay part of the Minister’s legal costs. The rules state how much you will have to pay.

Migration: What happens if I do not attend Court?

Unless the Court excuses you from attending, you must attend court whenever there is a hearing.

If you do not attend the Court hearing and do not have a lawyer appearing for you, the Court might dismiss your application in your absence and order you to pay the Minister’s costs.

In some circumstances, you can apply to the Court to set aside a judgment or orders made in your absence. To do that, you will need to file an Application in a proceeding and an accompanying Affidavit explaining why you did not attend the hearing.

What happens at the final hearing?

The Court will contact you in writing with a final hearing date at least a few weeks before the hearing. You will be contacted at the email or postal address that you have provided to the Court.

At the hearing, you will have an opportunity to address the issues in your case. If you have a lawyer, they will speak for you. The Minister will be represented by a lawyer, and you or your lawyer will have the opportunity to respond to what the Minister’s lawyer says in court.

The Judge may announce the decision at the end of the hearing, or the Judge might need more time to consider your case. If the Judge needs more time, you will be told to come back later the same day or to come back on a future date to hear the decision. The Court will then contact you when that date is set.

Be sure to keep the Court informed of your contact details. If your address changes you need to file a Notice of address for service form as soon as possible.