Section 476 — Jurisdiction of the Federal Circuit and Family Court of Australia
Text of provision
Australia (Division 2)
(1) Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the ART on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(ca) a non-privative clause decision mentioned in subsection 474(4A);
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit and Family Court of Australia (Division 2) may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 179 of the ART Act.
(4) In this section: primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under by application under Part 5 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
Plain English
Section 476 gives the Federal Circuit and Family Court of Australia (Division 2) the power to judicially review decisions of the ART (Migration and Refugee Division). This is the primary pathway for challenging ART decisions in migration matters.
Judicial review under s 476 is limited to jurisdictional error — it is not a rehearing on the merits. The Court can set aside a decision and remit it to the ART for reconsideration, but cannot substitute its own decision on the merits.
Practical effect
Section 476 is the gateway to judicial review of ART migration and refugee decisions. Key aspects:
- Jurisdiction — the Federal Circuit and Family Court (Division 2) has the same original jurisdiction as the High Court under s 75(v) of the Constitution in relation to ART migration decisions
- Time limit — applications must be filed within 35 days of the ART decision (extended to 84 days for decisions made while the applicant is outside Australia); section 477 sets these limits
- Grounds — jurisdictional error only: procedural fairness failures, errors of law going to jurisdiction, unreasonableness, taking into account irrelevant considerations, failing to take into account relevant considerations
- Remedy — typically certiorari (quashing the decision) and mandamus (requiring the ART to redetermine the application according to law)
- Appeal — from the Federal Circuit and Family Court to the Federal Court, then to the Full Federal Court, and ultimately to the High Court
The section 476 jurisdiction does not displace the High Court's original jurisdiction under s 75(v) of the Constitution, which remains available directly in exceptional cases.