Right to Remain in Australia During Judicial review Kean Legal Barristers and Solicitors

Migration Law Blogs Series (MLBS)  #4 – Right to Remain in Australia while a judicial review application is being determined

By Mr Anthony J Aristei

If you have a migration issue and you are not sure if it should be taken to the Court or Tribunal please contact our office for legal advice. It is best to seek this advice early, than to wait until it may be too late.  

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor form Kean Legal Barristers & Solicitors is ready to help.

As we have noted in our previous blogs, there is a strict time limit for the filing of an application to the Federal Circuit Court (‘FCC’) for a judicial review. The period expires “within 35 days” from the date when a migration review tribunal (usually the AAT) has refused the grant of the visa.

The application often represents the ‘last chance’ for a Visa applicant to legally remain in Australia. So, its importance cannot be overstated.

What happens while the application is being heard in the Federal Circuit Court

While the Federal Circuit Court proceedings are continuing, the Migration department is generally prepared to grant a bridging Visa to enable the applicant to temporarily remain in Australia (depending on the type of visa being sought).

If granted, a bridging Visa entitles the Visa applicant to legally remain in Australia while their case is being heard and determined. (The conditions and circumstances applying to bridging visas are discussed in one of our other blogs).

What happens if I am past the time limit? 

On the other hand, if the Federal Circuit Court proceedings have not been properly filed with its registry within the time limit, then no right to a bridging visa would arise.

In that case, the Migration department would classify the applicant as an “unlawful non-citizen”. The usual steps of issuing a Notice for removal of the Visa applicant from the country are then carried out.

The Department’s issuance of a Notice for removal is generally based upon section 198 (6) of the Migration Act 1958 (Cth).

The Notice itself can be issued when an application for a substantive visa has been “finally determined” (but has not been successful).

However, the filing of a judicial review application at the Federal Circuit Court renews the process of determining whether or not a visa will be granted. Once that step is taken, it cannot be said that the visa process has been finally determined- i.e. as long as the Federal Circuit Court proceedings are being continued.

Therefore, the filing of a valid application for judicial review with the Court (by the due date) can result in a Notice of removal being cancelled or revoked.

How we can help

Not only does the Federal Circuit Court application need to be properly filed by the due date, but a sealed copy of the application needs to be formally served on the Department’s offices.  By completing this step, the Department will be duly notified of the existence of the Court proceedings.

In one of our cases, some urgent (and difficult) steps were taken to formally serve the Department’s offices after they had closed (for the weekend period). Those steps were practically necessary in order to prevent a visa applicant’s expulsion from the country under a Removal notice.

The service of the application documents in that case was effective. The applicant was also successful in later obtaining a bridging Visa for the entire duration of her Federal circuit proceedings.

As with many of our other blogs on practice and procedure, the same theme of timely preparation is paramount. These matters are far too important to be left either until ‘the last moment’, or to occur ‘by chance’.

Before it is too late, you should therefore take the necessary steps to obtain timely and independent advice and representation.

If you need urgent assistance, feel free to contact our 24/7 office number if you need any legal advice or help in preparing an application for judicial review. Call our office on: +61 8 6323 8697

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