Most purposes for judicial assessment of migration choices – apart from these made in relation to ‘character-related’ cancellations and refusals – are determined by Division 2 of the Federal Circuit and Household Court docket of Australia (Circuit Court docket).
Importantly, the Circuit Court docket’s Guidelines enable the Court docket to dismiss a judicial assessment software instantly and with out discover if an applicant fails to look earlier than the Court docket when required. Because of this, it’s vital that you simply (or your authorized consultant, when you’ve got one) seem earlier than the Court docket on the time and date required.
When are appearances required?
All through the course of a judicial assessment software, there are a variety of various events the applicant might have to look earlier than the Court docket. That look could also be required in particular person, by video-link or by telephone. Some occasions which the Court docket might require you to look at might embody:
- a First Court docket Date or Instructions Listening to – a short listening to at which a Registrar or Choose of the Court docket units out the steps to be taken by the events within the lead-up to remaining listening to;
- a Callover – a short listening to held to find out when an software can be set down for remaining listening to; and/or
- Remaining Listening to – the longer listening to at which a choose will take into account your software and arguments earlier than making a choice.
When the Court docket units your software down for any sort of listening to it’ll notify you of the necessity to seem. The Court docket may even let you already know the strategy(s) through which you’ll be able to seem (e.g., in particular person, by videolink or by telephone).
What if I fail to look?
In case you fail to look earlier than the Court docket, whether or not that’s at a instructions listening to, callover, or remaining listening to, the Court docket can dismiss your software with out contemplating the deserves of your software. The Court docket has the facility to do that beneath r 13.06(1)(c) of the Circuit Court docket Guidelines.
What if my judicial assessment software is dismissed for non-appearance?
The place the Circuit Court docket dismisses an software for judicial assessment for non-appearance, you may apply to the Circuit Court docket to put aside the dismissal beneath r 17.05(2)(a) of the Circuit Court docket’s Guidelines. Typically this course of is described as ‘Making use of for reinstatement.’
An software beneath r 17.05 should be made through an ‘Software in a case’ and must be supported by an affidavit explaining the explanations in your non-appearance. In deciding whether or not to put aside the dismissal, the Court docket might take into account not solely the explanations in your non-appearance, however some other matter the Court docket considers related, such because the prospects of your software for judicial assessment whether it is ‘reinstated.’
What’s the timeframe for making an software for reinstatement beneath r 17.05?
There is no such thing as a prescribed timeframe for making an software beneath r 17.05.
Nevertheless, when you’ve got been granted a bridging visa on the premise of your judicial assessment software it’ll stop 28 days after your software for judicial assessment, together with any proceedings on enchantment, are accomplished.
Additional, one of many components the Court docket will take note of in deciding whether or not to put aside the dismissal for non-appearance is the size of any delay between the making of the dismissal order and the submitting of an software beneath r 17.05.
In these circumstances, any software beneath s 17.05 must be filed as quickly as doable and, in the event you maintain a bridging visa granted on the premise of your judicial assessment software, inside 28 days after the Court docket first dismisses your software for non-appearance beneath s 13.06(1)(c).
What if the Court docket doesn’t put aside the dismissal for non-appearance?
A Court docket’s refusal to put aside a dismissal for non-appearance is taken into account an ‘interlocutory,’ quite than remaining order (see AJC15 v Minister for Immigration and Border Safety [2016] FCA 562). Due to this fact, an applicant requires depart to enchantment the choice to the Federal Court docket of Australia; there is no such thing as a automated proper of enchantment to the Federal Court docket of Australia. An software for depart to enchantment should be filed inside 14 days after the date on which the Circuit Court docket refused to put aside the dismissal determination.
Do I have to acquire authorized recommendation?
In case your software for judicial assessment of a migration determination software has been dismissed for non-appearance beneath r 13.06(1)(c) of the Circuit Court docket Guidelines, we strongly suggest acquiring knowledgeable authorized recommendation.
At Hannan Tew Attorneys, we provide free, 20-minute consultations to debate judicial assessment purposes, together with purposes which have been dismissed for non-appearance. At this session we’ll give you recommendation in relation to the choices out there to you following a dismissal for non-appearance. We may even give you preliminary recommendation concerning the prospects of your judicial assessment software. If we take into account that your judicial assessment purposes has affordable prospects of success, we might supply to behave in your behalf in relation to your software to put aside the dismissal and, if the dismissal is put aside, your software for judicial assessment.
You may guide a free 20-minute judicial assessment session with our Joel McComber, an skilled judicial assessment lawyer, right here.
Abstract
- If the Federal Circuit and Household Court docket of Australia dismiss your software for judicial assessment for non-appearance beneath r 13.06(1)(c), you may file an ‘Software in a case’ within the Circuit Court docket searching for that the dismissal be put aside beneath r 17.05(2)(a).
- Whereas there is no such thing as a prescribed timeframe for making an Software in a case beneath r 17.05(2) the applying must be filed as quickly as doable and inside a minimum of 28 days to keep away from the expiry of any bridging visa granted to you on the premise of your judicial assessment software.
- In deciding whether or not to put aside the dismissal, the Court docket will take into account your clarification for non-appearance, your clarification for any delay in bringing an software to put aside the dismissal, and the deserves of your dismissed judicial assessment software.
- If the Circuit Court docket refuses to put aside the dismissal for non-appearance, you may search depart to enchantment to the Federal Court docket of Australia. Any software for depart to enchantment to the Federal Court docket should be filed inside 14 days after the Circuit Court docket’s determination.
- It is best to acquire authorized recommendation concerning any dismissal for non-appearance. You may guide a free, 20-minute judicial assessment session with our agency right here.
