Federal Circuit and Family Court of Australia (FCFCOA)

The Court is different from the Administrative Review Tribunal (ART).

An ART review is generally a merits review of an eligible administrative decision. A proceeding in the FCFCOA is generally concerned with judicial review and legal error, rather than simply asking the Court to reconsider whether a visa should have been granted.

What Is the FCFCOA?

The Federal Circuit and Family Court of Australia commenced on 1 September 2021.

It has two divisions:

• Division 1 — primarily deals with family law appeals and other specified family law matters.
• Division 2 — deals with family law, migration and general federal law matters.

Migration proceedings are dealt with in Division 2.

The former Federal Circuit Court of Australia became part of the new FCFCOA structure.

Therefore, older information referring to the Federal Circuit Court should now generally be updated to Federal Circuit and Family Court of Australia (Division 2).

What Is Migration Judicial Review?

Judicial review is different from a normal visa appeal or merits review.

In a migration judicial review proceeding, the Court considers whether the relevant decision-maker made a jurisdictional error or another legal error that falls within the Court's jurisdiction.

The Court does not generally conduct a fresh assessment of the applicant's visa eligibility in the same way as the ART.

For example, the Court may examine whether:

• The decision-maker applied the wrong legal test
• A mandatory legal requirement was overlooked
• The decision-maker failed to consider a mandatory relevant matter
• The decision-maker took into account an irrelevant consideration
• The decision-maker misunderstood the law
• The decision-maker denied procedural fairness where legally required
• The decision involved another form of jurisdictional error

Whether an error amounts to a jurisdictional error depends on the particular legislation, facts and circumstances.

FCFCOA vs Administrative Review Tribunal

It is important to understand the difference between the two processes.

The ART and FCFCOA therefore perform different functions.

A person should not automatically assume that an unsuccessful ART review means the Court will reconsider the visa application on its merits.

When Can the FCFCOA Review a Migration Decision?

The Court has jurisdiction over certain migration judicial review matters under the Migration Act 1958.

For example, section 476 of the Migration Act provides jurisdiction in specified circumstances concerning migration decisions.

The current FCFCOA Migration Practice Direction applies nationally to migration proceedings within the scope of section 476.

However, not every migration decision can simply be taken to the Court.

Before commencing proceedings, it is important to determine:

• What decision was made
• Who made the decision
• Whether the decision is legally reviewable
• Whether the Court has jurisdiction
• Whether an error of law or jurisdictional error can be identified
• Whether the application is within the applicable time limit
• Whether any statutory restrictions apply

What Is Jurisdictional Error?

A jurisdictional error is a legal concept that can arise where a decision-maker exceeds the limits of the power given to them by law or otherwise fails to comply with an essential legal requirement.

Examples can potentially include:

• Applying an incorrect legal test
• Failing to exercise a statutory power required by law
• Ignoring a mandatory consideration
• Taking an irrelevant consideration into account
• Acting beyond jurisdiction
• Denying procedural fairness where applicable
• Making a decision affected by a serious legal error

Not every mistake made by a decision-maker amounts to jurisdictional error.

The particular legislation and facts must be examined carefully.

What the FCFCOA Does Not Usually Do

The Court does not normally act as another merits-review body.

For example, simply arguing:

“The Department or ART should have believed my evidence”

does not necessarily establish a judicial review ground.

Similarly, the Court does not generally substitute its own view about whether an applicant meets the visa criteria merely because another decision might have been possible.

The focus is on the legality of the decision-making process and the limits of the decision-maker's power.

FCFCOA After an ART Decision

A common migration pathway can involve:

Department of Home Affairs decision

↓

Administrative Review Tribunal (ART), where review is available

↓

FCFCOA judicial review, where the Court has jurisdiction

However, this is not an automatic sequence for every case.

An ART decision does not automatically create a right to judicial review.

A potential court proceeding requires a legally arguable ground and must satisfy the applicable jurisdictional and procedural requirements.

What Happens If the Court Finds Legal Error?

Where the Court identifies a relevant legal error and has jurisdiction to grant relief, it may make orders permitted by law.

Depending on the circumstances, this can include setting aside the relevant decision and requiring the matter to be reconsidered according to law.

A Court proceeding therefore does not necessarily mean that the Court itself grants the visa.

The ultimate outcome can depend on the nature of the error and the orders made by the Court.

FCFCOA Migration Application

Migration judicial review proceedings require the appropriate Court documents to be prepared and filed.

The FCFCOA provides migration-specific resources, including an:

Originating Application – Migration Act

The Court also provides forms and resources for affidavits, responses and other migration proceedings.

The appropriate documents and filing method depend on the proceeding.

FCFCOA Migration Filing Fee

Court fees can change, so current fees should always be checked before filing.

From 1 July 2026, the FCFCOA lists the filing fee for a migration application under item 201A at:

AUD $4,180

A reduced fee of:

AUD $2,090

may apply where a Registrar or authorised officer has determined that the applicant is eligible for the reduced fee under the applicable regulations.

Other court fees may apply depending on how the proceeding progresses.

For example, the Court lists separate fees for certain interlocutory applications and hearing-related events.

Financial Hardship and Court Fees

In some circumstances, a person may qualify for an exemption or reduced court fee.

The Court states that exemptions or reductions may be available in certain circumstances, including where a person can demonstrate financial hardship or holds certain concession cards.

The requirements should be checked before filing.

How Long Do You Have to Apply?

Migration judicial review applications are subject to strict statutory time requirements.

You should not assume that you have the same timeframe as an ART review.

The relevant deadline should be checked immediately after receiving the decision.

If you believe a decision may contain a jurisdictional error, obtain professional legal advice promptly.

Central Migration Docket

Migration applications accepted for filing are assigned to the Court's Central Migration Docket (CMD).

The CMD provides centralised national case management for migration applications.

After filing, a matter may initially be case managed by a migration judicial registrar before being allocated to a judge who will hear and determine the proceeding.

Court Proceedings Are Different From ART Reviews

The distinction is important.

ART Review

The ART can conduct a merits review of an eligible administrative decision.

FCFCOA Judicial Review

The Court examines whether the decision was legally made within the decision-maker's lawful authority.

Therefore, an applicant should identify the correct legal pathway before commencing proceedings.

What Evidence May Be Relevant?

The documents required depend on the grounds of judicial review.

Relevant material may include:

• Department decision
• ART decision, where applicable
• Visa application documents
• Department correspondence
• ART submissions
• Evidence relevant to the alleged legal error
• Affidavit evidence
• Relevant legislation
• Procedural documents
• Other material required by the Court

The purpose of the evidence is to support the legal grounds being relied upon.

Can New Evidence Be Used?

Judicial review is not normally an opportunity to simply submit a completely new visa application or provide additional evidence to persuade the Court that the applicant deserves the visa.

The relevance of evidence depends on the legal ground being argued.

A lawyer should assess whether proposed evidence is relevant to establishing the alleged legal error.

FCFCOA vs Federal Court

The FCFCOA and Federal Court are separate courts.

The FCFCOA Division 2 deals with migration proceedings within its jurisdiction.

Appeals from certain decisions may be dealt with by the Federal Court of Australia, depending on the applicable legislation and circumstances.

The correct court and pathway must therefore be determined from the particular decision and legal issue.

Why Professional Legal Advice Is Important

Migration judicial review is a specialised area of Australian administrative law.

A person should not commence a Court proceeding simply because they disagree with a visa refusal or ART decision.

The important question is whether there is an arguable legal basis for judicial review.

A proper assessment may involve:

• Reviewing the original visa decision
• Reviewing the ART decision
• Identifying the decision-maker's powers
• Examining the relevant legislation
• Identifying possible jurisdictional errors
• Assessing procedural fairness issues
• Checking the Court's jurisdiction
• Checking the applicable deadline
• Preparing appropriate Court documents

How The Visa Can Help

At The Visa and Education Services Pty Ltd, we can assist with assessing your immigration circumstances and explaining the available migration review pathways.

Our assistance may include:

• Reviewing your visa refusal or cancellation
• Reviewing an ART decision
• Identifying potential review options
• Assessing migration history
• Reviewing supporting documents
• Explaining the difference between ART review and judicial review
• Referring appropriate matters for specialist legal advice where required
• Assisting with related migration matters

Where a matter requires legal representation or specialist judicial review advice, an appropriately qualified Australian legal practitioner should be engaged.

Received an Unfavourable Migration Decision?

Do not assume that an unsuccessful ART review means that there are no further legal options.

However, a Court proceeding is not simply another opportunity to argue the merits of your visa application.

The relevant decision, legislation, jurisdiction and potential legal error should be assessed promptly.

Registered Migration Agent: Navneet Kaur (MARN 2318181)

Contact The Visa and Education Services Pty Ltd to discuss your migration circumstances and available options.

Disclaimer: This page provides general information only and does not constitute legal or migration advice. Judicial review is a specialised legal process. The availability of FCFCOA review, applicable deadlines, jurisdiction and potential grounds depend on the individual circumstances and current Australian legislation. Where court proceedings or legal representation are required, obtain advice from an appropriately qualified Australian legal practitioner.