Judicialreview（TheFederalMagistratesCourt）

Fact Sheet 7
Judicial review (The Federal Magistrates Court)
If the Refugee Review Tribunal (RRT) rejected your case you have the right to appeal your case to the Federal Magistrates Court (FMC). This is often called …Judicial Review‟. This fact sheet is about applying to the Federal Magistrates Court to have your case reviewed.
Key points:
∙If the Refugee Review Tribunal (RRT) rejects your application you have two options.
One option is to appeal to the Federal Magistrates Court (FMC). The other is to ask for Ministerial intervention.
∙If the RRT rejects your application and there was a legal error in the RRT decision making process you can appeal to the FMC. The FMC does not review your refugee claims. It reviews the way the RRT made its decision.
∙Appealing to the FMC can be a very expensive process if you don’t succeed. You should seek legal advice about your chances of success.
∙If you win at the FMC, you do not get a Protection visa. Your case goes back to the RRT for another hearing in front of a different RRT Member.
What is an error of law?
The FMC can only look at whether there was an error of law in the way the RRT decided your case. An “error of law” is a mistake in the way the law has bee n applied
to your case. The FMC can only consider and decide whether the RRT Member
made a mistake in the way they used the law. This means that the FMC cannot reconsider the facts of your case and make a new decision on whether you are a refugee and they cannot grant you a visa.
How do I apply to the FMC?
In order to apply for review to the FMC you need to complete an application and give
it to the FMC along with the application fee. Your application must include certain documents so that it is accepted by the FMC1. These are:
∙An “Application under Migration Act” form.
∙An affidavit (a statement signed in front of a qualified person e.g. a lawyer).
∙You need to attach a copy of your RRT decision to the application.
1 You can find a copy of the forms you need to fill in here: .au/forms/html/migration.html
When you apply to the FMC you must take four copies with of each of these documents to the FMC. The FMC will keep one copy and give you back three stamped copies of your application. One of these copies is for you to keep for your records. One copy is to give to the DIAC when renewing your bridging visa. One copy is for the Government’s lawyers.
You must post the copy to the Government lawyers (the Australian Government Solicitor) within seven days of applying to the FMC.2This lets them know about the case.
How much will it cost?
Application fee: There is an application fee to apply to the FMC. The fee is $426.3 This fee is reduced to $100 if you can show you have financial difficulties and cannot pay the higher fee. The fee can also be reduced to $100 if, for example, you have a legal aid lawyer or are in detention.
If you have financial difficulty paying even the $100 or a higher filing fee at the time you apply to the FMC, you can also apply to pay the fee later.
To apply for a reduction of the fees or to pay the fee later you need to fill in a form and give it to the court at the same time as giving them your application.
Government legal fees: If you lose your case you will be charged for the Government’s legal fees. This can be very expensive. Usually people have to pay around $5000 or sometimes more if they lose their case at the FMC.
Is there a time limit to apply?
If the RRT rejects your application then you must apply to the FMC within 35 days of the RRT decision. However if you are on a bridging visa, you may need to apply sooner. (See What happens to my bridging visa when I apply to the FMC for review?) If you miss the deadline to apply you can ask the FMC to give you an extension of time. You need to ask for an extension at the same time as giving the Court your application for review and give reasons why you need the extension. The Court will decide whether to give you an extension.
What happens to my bridging visa when I apply to the FMC for review? If you are on a bridging visa, then that bridging visa will expire 28 days after you have been “notified” of a negative decision by the RRT.
If you received the RRT decision by email or fax then you have been notified of the decision at the end of that day. This is important because if you received the decision by fax or by email then you will need to apply to the FMC within 28 days of the RRT decision. Then you can show your application to the DIAC when you apply for a new bridging visa.
If you received the decision by post then you have been notified 7 working days after the date of the letter from the RRT. In this case you can apply to the FMC within the 35 day time limit.
Do I need a lawyer to go to the FMC?
It is a good idea to have a lawyer to help you prepare and to go with you to court. At the FMC they will talk about the way the RRT used the law when they decided your case. The Court will not reconsider your refugee claims – only the way the RRT
2 You can find the AGS office in your state here: .au/whoweare/network/index.htm
3If you pay the full filing fee of $426 there may also be other Court costs to pay later in the process.
decided your case. The case can involve technical legal arguments, which can be very difficult to understand if you are not a lawyer.
Your lawyer should let you know their opinion about whether you have a chance of success if you take your case to the FMC. It is important that you talk to your lawyer about this because it can be very expensive to take a case to court if there is no chance of success.
Usually your lawyer will organise a “barrister” to go to argue your case in court. A barrister is a special lawyer who is an expert in arguing cases in court.
Can my migration agent help me with my FMC hearing?
If your migration agent is also a lawyer then they might be able to help you with your court hearing. If your migration agent is not a lawyer they cannot represent you in court because only lawyers are allowed to represent people in court.
If your case has been funded through a Government grant (IAAAS) your migration agent will not receive money to take your case to court. If your migration agent cannot help you with your case in court ask them where you can go for help.
What happens after I apply?
∙When you apply the FMC will give you a date for a directions hearing. This is an initial hearing in the Court in front of the Magistrate where a timetable of all the important dates for your case will be set.
∙ A few weeks after the directions hearing you will receive a book containing all the information about your case called a “Court Book”.
∙After receiving the Court Book you (or your lawyer) need to make a written argument to the court about why the Refugee Review Tribunal made an “error of law” in your case. This argument must be sent to the FMC and to the
Government lawyers.
∙You will then receive a written argument in response from the Government lawyers.
∙You or your lawyer must attend the Final hearing for your case. At the Final hearing the Federal Magistrate will hear your argument and the Government
lawyers’ arguments in person. The Federal Magistrate may ask questions
about the case.
Can I withdraw my application?
If you decide that you do not want to continue with your application you can ask the Court to discontinue your case by filling in a Court form called a Notice of Discontinuance.
When will I get a decision about my case?
Usually a decision will not be given on the day of the hearing. It usually takes between 3 – 6 months to receive a decision but it can also be longer or shorter. If you are in detention the FMC will try to make a decision on your case as quickly as possible.
What happens if my case is successful at the FMC?
If you win at the FMC this does not mean you are automatically granted a Protection visa. Your case will be sent back to the RRT. You will have another hearing and the new hearing will be in front of a different RRT Member.
You will have to present all of your claims to the RRT again during the second hearing. If there is new information or evidence to present, which has not been presented before, you can do this at the new hearing. The RRT Member will be deciding your case fresh and will again have to consider all of the evidence including any new evidence you present.
What happens if my case is unsuccessful at the FMC?
If your case is unsuccessful at the FMC you have two choices:
∙You can appeal your case to the higher courts.
∙You can make a request to the Minister.
You can appeal to the Federal Court within 21 days of the FMC decision. It is really important that you get some legal advice about whether or not your case will succeed at the Federal Court before you apply. If you decide to appeal, and the appeal is unsuccessful, you will have to pay the Government’s legal fees. This can cost thousands of dollars.
You can also make a humanitarian request to the Minister for Immigration and Citizenship to personally intervene in your case and grant you a visa. If you are on a bridging visa you should do this within 28 days. See Fact Sheet 8 “Ministerial
i ntervention” for more information about this.。