Actions in Respect of Migration and Citizenship

Nature of action Time Limit Period Legislation Provision
IN ALL CASES, CLIENTS SHOULD BE STRONGLY ADVISED TO CONSULT A REGISTERED MIGRATION AGENT AS SOON AS POSSIBLE
Application to the Migration Review Tribunal for review of MRT – reviewable decisions. 28 days after notification of decision made under ss 338(2), (3), (3A), (4) or (7A).

70 days after notification of decision made under ss 338(5), (6), (7) or (8).

Number of days prescribed in decision made under s 338(9).

s 347(1)(b) Migration Act 1958 (Cth)

Reg 4.10 Migration Regulations 1994 (Cth)

Note the definition of MRT – reviewable decision in s 338 Migration Act 1958 (Cth).

Note: The date on which the applicant is said to be notified of the decision depends on the method of delivery (see s 494B of the Migration Act). s 494C of the Migration Act is a deeming provision regarding when the person is taken to have received the document and is strictly interpreted.

Note: There are special time limits for applications by detainees. See Reg 4.10(2) Migration Regulations 1994 (Cth).

Application to the Refugee Review Tribunal for review of RRT – reviewable decisions. 28 days after notification of decision. s 412(1)(b) Migration Act 1958 (Cth)

Reg 4.31 Migration Regulations 1994 (Cth)

Note: Where applicant is in immigration detention, application must be filed within 7 working days after notification of the decision: Reg 4.31(2)(a) Migration Regulations 1994 (Cth).

Also, some applications for review of refusal or cancellation decisions must be made to the AAT (see below).

Application to Administrative Appeals Tribunal for review of other migration decisions. Where decision sets out findings/ reasons:

·         28 days after the decision is given to applicant.

Where decision does not provide findings/reasons:

·         28 days after statement of findings/reasons is given to applicant; OR

·         28 days after applicant notified reasons will not be given.

s 29(2) Administrative Appeals Tribunal Act 1975 (Cth)

s 500 Migration Act 1958 (Cth) – review of visa cancellation decision under s 501, deportation decision under s 200, refusal to grant or to cancel protection visa under s 501CA(4)

s 136 Migration Act 1958 (Cth)- business visa cancellation under s 134

s 306 Migration Act 1958 (Cth) – decisions of the Migration Agents Registration Authority

AAT may extend time on application (ss 29(7) and (8)).

Note: Where Applicant is in the migration zone, time limit is 9 days after notified of decision (s 500(6B) Migration Act 1958 (Cth)).

Application to Federal Circuit Court, Federal Court or High Court for judicial review of a “privative clause decision”. 35 days from the date of the decision for application to Federal Circuit Court (s 477).

35 days from the date of the decision for application to Federal Court (s 477A).

35 days from the date of the decision for application to High Court (s 486A).

ss 477, 477A and 486A Migration Act 1958 (Cth) Application must be made within 35 days of the decision.

Court may, by order, extend time (ss 477(2), 477A(2), 486A(2)).

Note: Part 8 of the Migration Act provides for limited rights of review of ‘privative clause decisions’.

Note: An application for Extension of Time to the Federal Circuit Court must be made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order (s 477(2)). If an Application for Extension of Time is dismissed in the Federal Circuit Court or Federal Court at first instance, no appeal lies to the Full Federal Court of Australia (s 476A(3)).

Application to Administrative Appeals Tribunal for review of certain citizenship decisions. Where decision sets out findings/ reasons:

·         28 days after the decision is given to applicant

Where decision does not provide findings/reasons:

·         28 days after statement of findings/reasons is given to applicant; OR

·         28 days after applicant notified reasons will not be given.

s 29(2) Administrative Appeals Tribunal Act 1975 (Cth)

s 52 Australian Citizenship Act 2007 (Cth)

AAT may extend time on application (ss 29(7) and (8) Administrative Appeals Tribunal Act 1975).

A person must be a permanent resident to apply for review of a decision made under s 24 refusing an application for the grant of citizenship (s 52(2) Australian Citizenship Act 2007).

NB: A person who is not a registered migration agent must not give immigration assistance (defined at ss 276 and 277 of Migration Act 1958 (Cth) and to do so is a strict liability offence: section 280 Migration Act 1958 (Cth). This section does not prohibit lawyers from giving immigration legal assistance, see ss 280(3) and 277 of the Migration Act 1958 (Cth).