和AAT上诉一样，申请FCC上诉也必须先填写申请表，但是和AAT不同的是申请表必须简要的写一下需要申请的order 和 申请的理由。起诉的对象一般是2个 Minister for immigration 是作为first respondent, Administrative Appeals Tribunal 作为second respondent
一般是seek ” A writ of certiorari issue directed to the second respondent quashing its decision dated XXX and A writ of mandamus issue directed to the second respondent requiring it to be determine the application for review of the decision of the a delegate of the First Respondent dated XXX according to law. ”
然后给出自己的理由，一般有2大类理由 ：“ Wrong decision on question of law” 法律理解错误。或者”there was a miscarriage of justice” AAT 完全乱来。
根据法官在LPDT v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2024] HCA 12 里对于jurisdictional error 的分类。
主要包括
1 从第三方失误导致的 Jurisdictional error ，移民局也必须依法办事，任何执法都必须满足一定的条件。比如在Wei v Minister for Immigration and Border Protection 这个案件中 wei同学的COE，大学没有及时更新，移民局在COE 登记数据库（PRISMS) 中没有查到Wei 同学的COE，把Wei同学的签证取消了。Wei 同学上诉到high court. High court 不仅豁免了s486A 规定的35天上诉时效 https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s486a.html ，还措辞严厉的批评了移民局的这种不负责任的行为是不符合立法的意图的（ statutory purpose of the duty would not be advanced)。
The joint judges (Gageler and Keane JJ) first noted that jurisdictional error involves a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by a statute .
Here, s 19 imposed a duty on a registered provider to upload to PRISMS a confirmation of enrolment for a student visa holder, and within the overall scheme, ‘there is little difficulty in concluding that the statutory purpose of that duty would be advanced by holding that an exercise of the power to cancel a visa’ under s 116(1)(b) of the Migration Act 1958 (Cth) ‘that is affected by a breach of that duty is invalid’: at [29]
Nettle J 的判决更进一步提出了一个constructive failure to exercise jurisdiction 的概念。 Nettle J held instead that the delegate’s failure to make inquiries into the critical fact of the plaintiff’s enrolment status after difficulties in communicating with the plaintiff, which could easily have been done by telephoning the University, meant that the jurisdictional error here was a constructive failure to exercise jurisdiction
2 Misunderstanding the applicable law 对法律意思的误解，导致AAT做出了错误的裁决。
3 Asking the wrong question， AAT Member 在做调查的时候问了法律不需要问题的，或者法律规定之外的问题。得到了不满意的的答案，导致AAT做出了错误的裁决。
3 exceeding the bounds of reasonableness AAT裁决的时候是相当不合理的，超出了理性的范畴。
比如这个例子
Khakpour v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 617 (26 May 2022) AAT做出对于申请人提供的证据只有Limited weight 的判断，没有事实依据，在没有证据质疑医生的证明信的情况下，AAT仍然不接受担保人和申请人分居造成心理创伤，没有遵循rules of reason的原则，不合理的低估了这个证据对4020的影响。
4 identifying a wrong issue
5 ignoring relevant material 没有考虑和法律要求相关的证据，比如AAT要考虑Australia’s interests 但是不认为某个澳大利亚人不代表澳大利亚。 比如：
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, [1979] AATA 179. Justice Brennan stated:
The limits of relevancy can scarcely be defined in advance of particular cases, and factors which are of central importance in one case may be of marginal importance in another. The range of relevant factors cannot be confined by defining Australia’s interests in terms of the interests of the community, excluding the applicant and others affected by a deportation order. Australia’s interests extend to an interest in them, for a nation’s interests are involved when its government exercises coercive powers to affect individuals. Australia’s interests are affected by the way in which the deportation power is exercised – by the criteria and procedures which are adopted in making deportation decisions, as well as by the safeguarding of the community which deportation of a particular offender may provide: the former factors affect the liberty of Australian society, the latter its protection. Thus Smithers J observed in Re Chan and Minister for Immigration and Ethnic Affairs ((1978) 1 ALD 55 at p 56; (1977) 17 ALR 432 at p 434):
” The expression ‘the best interests of Australia leaves much open to judgment. It is my view that in the application of policy as stated that expression is to be understood not in a narrow and restricted sense, but as extending to such interests broadly regarded, and embracing, on occasion and according to circumstances, the taking of decisions by reference to a liberal outlook appropriate to a free and confident nation.”
这种错误的理解了澳洲利亚利益的范畴的决定，是可以在FCC上诉成功的。
6 relying on irrelevant material
7 making an erroneous finding
8 failing to observe the requirement of procedural fairness.
一般情况下，这种错误必须对签证决定造成了实质性的影响。In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact。”unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different. the threshold of materiality will have been met. 实质性影响说的是，如果移民局可能做出一个不同的决定，就可以说造成了一个实质性影响。
有些特殊情况下，这个错误本身就是实质性影响。比如 （apprehended or actual bias)
比如 Bhatti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1583 (Bhatti) at [130]. In that case, her Honour held that apprehended bias had been demonstrated by a combination of factors that included: focusing on irrelevant matters; making stereotypical assumptions about religious practices; identifying another basis to cancel the appellant’s visa, such as to create an apprehension that the Tribunal considered the visa cancellation decision should have occurred in any event; inaccurately summarising the evidence; failing to properly consider the applicant’s submissions; making findings contrary to inferences available on the evidence; accusing the applicant of changing their evidence when this did not occur; overall impatience; and hostile or harassing questioning.
MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356; (2016) 246 FCR 111 (MZZLO) at [76]-[78], where Moshinsky J determined that the making of serious allegations about the conduct of the applicant’s lawyer gave rise to a reasonable apprehension of bias.
- In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner), the plurality identified at [6], “the governing principle” by which apprehended bias is demonstrated as:
…if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
As Kiefel CJ and Gageler J explained in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 (QYFM) at [38], the test in Ebner entails three steps:
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
Their Honours observed at [45], citing Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, that in undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”.
The test has been described as the “double might” test, emphasising the test is one of real possibility rather than probability: QYFM at [37]. However, the reasonable apprehension must be “firmly established”: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553. The possibility must be, “real and not remote”: Ebner at [7]. It is important not to accede “too readily” to suggestions of the appearance of bias: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352.
The cumulative effect of comments by the decision maker can be taken into account: AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236 at [67]- [68].
The fair-minded lay observer is taken to have knowledge of the nature of the decision and the context in which the decision is to be made: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester) at [23].
申请必须在决定的35天内做出。提供一份AAT的决定，其他支持材料或者申请延期的材料。如果有法定声明的话必须符合格式的规定。
在收到FCC 的确认信后，申请人必须给移民局和AAT分别抄送一份。法院会提供给你需要抄送的地址。
法庭随后进入case management 的程序，如有需要需要约控辩双方面谈确定具体的争议。
移民局一般会回复他们是否要对起诉内容进行抗辩。 随后法庭进入排期确认最后的开庭时间。
如果由于种种原因要撤销上诉，那么必须在开庭前至少14天向法庭提交 Notice of Discontinuance 否则需要法院特批同意才能撤销。
一般去FCC的费用包括律师费， 包括材料审核费$2000到$4000, Directions hearing 处理费$1500 到$3000, 最后审理hearing fee $2500 到 $5000, 如果需要雇佣Barrister 上庭还需要额外的$8000到$16000
Migration case 的申请费$3535, 听审费用$875.
如果你败诉了， 在听审之前结束，需要支付对方$1495, 在首次庭审之后需要支付对方$3737, 在最后听审日期结束支付$7467. 终止告知在首次开庭前14天送达，$744, 不到14天$1864,最后开庭前$3737, 其他情况下$5227 (比如听审后但是等待判决的中途）
https://www.fcfcoa.gov.au/gfl/gfl-fees