How to win my Court case (FCC/FCA) for my visa?

Your visa was refused by the Department of Home Affairs and your AAT review case was unsuccessful. Frustrated and upset, you decided to review the AAT decision at the Federal Circuit Court FCC or the Federal Court of Australia which is called judicial review. So, how can you win your case this time?

1) Find an experienced Immigration Lawyer

Firstly, if your visa was refused and you are now at the court, you should seriously think about getting legal advice from an immigration lawyer who has experience in court work. You cannot use a migration agent as it is illegal for them to advise on court work as they are not registered lawyers. You should also not use any lawyer without ensuring they have experience in this field. An Accredited specialist in immigration law should have good experience and knowledge to take your case.

Once you approach a lawyer for legal advice, they will assess your case and only accept it if there is a legal basis for your case. Only then they can represent you in court. It is very important that your lawyer agrees that your case has merits as they sign a certificate confirming that there is reasonable prospects of success for your case. That means if a lawyer takes on a case that does not have any merits, they can get in trouble with the court.

Your lawyer/solicitor may also suggest that you engage a barrister for a maximum chance to best represent your case. A barrister is a lawyer who specializes in court work only which means they can help you represent your case at court but most of the paperwork and advice and interaction will be directly with your solicitor.

2) Strong legal basis

To win your court case you need a strong legal basis and arguments. A court case or ‘judicial review’ of your visa refusal is not about how strong your case was at the department or the merits of your case in anyway. The court will only focus on whether the tribunal/AAT member/previous court followed the correct laws to get to their decision. A winning case at the court would be to focus on what the tribunal did wrong from a legal point of view. 

If you lodge a court case that has no legal basis, the court can throw it out early on leaving you with very few options. Also, the government has their own legal team in a court case where they have a lawyer and sometimes a barrister too fighting against you and explaining why the tribunal did a good job and not made any mistakes. If your case is thrown out, you will not only lose your money, you will also be responsible for the cost of the other side legal team. If you lose the case at the end, you will still have to pay the cost for the Minister’s legal team which can be thousands of $$. If you have a strong legal basis, sometimes the government lawyers ‘concede’ or decide that your case is too strong that they tell the court that they are happy that you win your case without an actual hearing.

To have a strong legal basis, we suggest that you follow our first point by getting a good legal team/immigration lawyer who is experience in Australian immigration law to look at your case and become your representative.

3) The judge deciding your case

The judge assigned to your case by the court will play an important factor on how your case goes. All judges are officers of the court and must look at the case very carefully before making a decision, unless one side decide to withdraw the case or ‘concede’. However, some judges are tougher than others in the view they take and how they want the case to be represented to them. That’s why having the right lawyer and barrister to represent your case is important as they have knowledge of the judges and how the case should be presented to them for maximum success.

Need Help?

Our firm is founded by Award Winner and Accredited Specialist Immigration Lawyer, Marial Lewis who can look after your migration question.

If you require assistance with an AAT or court case in Australia, feel free to contact our office on contact@crossoverlaw.com.au or book a 15 minutes obligation free consultation.

DISCLAIMER: Immigration law is complex and is subject to constant regulatory and policy change by the Australian government.  The information provided above is a general guide only and does not constitute legal advice. If you require legal advice please get in touch with our office.