Originating application for review of a migration decision (Form 70)

The Federal Court's original jurisdiction over migration decisions is limited by section 476A of the Migration Act 1958. It covers decisions of the Administrative Review Tribunal (ART) on review under section 500, decisions made personally by the Minister under sections 501 to 501CA, proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) and confirmed, and certain matters under the ART Act. Most other migration decisions are reviewed by the Federal Circuit and Family Court of Australia (Division 2). Rule 31.22 of the Federal Court Rules 2011 requires an originating application in Form 70, with details of any alleged fraud or bad faith. The application must be made within 35 days of the date of the migration decision (s 477A), must disclose earlier judicial review proceedings about a tribunal decision (s 486D) and, if filed by a lawyer, must include the s 486I certificate.

When you need it

• You want review of an ART decision on review under s 500 (for example a review of a delegate's character decision under s 501).
• You want review of a decision made personally by the Minister under s 501, 501A, 501B, 501BA, 501C or 501CA.
• You are within 35 days of the decision, or you are also applying for an extension of time in Form 67 (r 31.23).

1. 1

   Heading and parties

   Name applicants first, the other parties to the tribunal proceeding next and the tribunal last, without naming individual members (MIG-1 para 3.5). The Court may assign a pseudonym where s 91X of the Act applies (MIG-1).

2. 2

   Decision and date of notification

   The form records that the application is under s 476A. Insert the date you were notified of the decision.

3. 3

   Relief and grounds

   List the relief sought in numbered paragraphs, then the grounds. Give particulars of any fraud or bad faith alleged (r 31.22(2)).

4. 4

   Section 486D disclosure

   Choose either that you have not brought other judicial review proceedings about the decision, or list each one (title, file number, date and court).

5. 5

   Address and signature

   Give your address for service, email and residential or business address, and sign as Applicant or lawyer.

6. 6

   Lawyer's certificate

   A lawyer filing the application must sign the s 486I certificate that the litigation has a reasonable prospect of success.

• File within 35 days of the date of the migration decision (s 477A(1)). The 35 days runs even if notification requirements were not complied with (s 477A(4)). For more time, file Form 67 with an affidavit explaining the delay and a draft Form 70 (r 31.23). A filing fee applies - check the Court's current fee schedule.
• The Court must refuse a document commencing migration litigation filed by a lawyer without the s 486I certificate.
• Serve the application and accompanying documents personally on each respondent as soon as practicable and at least 5 days before the first hearing, unless the Court shortens time (r 8.06).
• An application book must be prepared and filed, generally no later than 20 business days before the hearing (MIG-1 para 10).

• Check jurisdiction first. If your decision is not covered by s 476A, the application belongs in the Federal Circuit and Family Court of Australia (Division 2).
• The printed Note on the form refers to 'the relevant Tribunal' and Part 7. Section 479 now refers to the ART and to review under Part 5 or s 500, and also names the Australian Border Force Commissioner as a possible party.
• If you are in immigration detention, tell the Court about any proposed removal from Australia (MIG-1 and MIG-2).