(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under section 105 of the ART Act (other than a decision made by the ART in relation to an application under Part 5)—the day the decision is made under that section; or
(b) in the case of a migration decision made by the ART in relation to an application under Part 5—the day the decision is taken to have been made under subsection 368(6) or (7) or 368B(3); or
(c) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
477A Time limits on applications to the Federal Court
(1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
478 Persons who may make application
An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:
(a) if the migration decision concerned is made on review by application under Part 5 or section 500—the applicant in the review by the ART; or
(b) in any other case—the person who is the subject of the decision; or
(c) in any case—a person prescribed by the regulations.
479 Parties to review
The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:
(a) if the migration decision concerned is made on review by application under Part 5 or section 500—the applicant in the review by the ART; or
(b) in any other case—the person who is the subject of the migration decision; or
(c) in any case—a person prescribed by the regulations.
480 Intervention by Attorney‑General
(1) The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in section 477 or 477A.
(2) If the Attorney‑General intervenes in such a proceeding, the Federal Circuit and Family Court of Australia (Division 2) or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit.
(3) If the Attorney‑General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
481 Operation etc. of decision
The making of an application referred to in section 477 or 477A does not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
482 Changing person holding, or performing the duties of, an office
If:
(a) a person has, in the performance of the duties of an office, made a migration decision; and
(b) the person no longer holds, or, for whatever reason, is not performing the duties of, that office;
this Part has effect as if the decision had been made by:
(c) the person for the time being holding or performing the duties of that office; or
(d) if there is no person for the time being holding or performing the duties of that office or that office no longer exists—such person as the Minister specifies.
484 Exclusive jurisdiction of High Court, Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1) Only the High Court, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have jurisdiction in relation to migration decisions.
(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), but to exclude other courts from jurisdiction in relation to migration decisions.
(3) To avoid doubt, despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.
(4) To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Cross‑vesting) Act 1987.
Part 8A—Restrictions on court proceedings
486A Time limit on applications to the High Court for judicial review
(1) An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
(a) an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision has the meaning given by subsection 477(3).
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
486AA Intervention by Attorney‑General
(1) The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1).
(2) If the Attorney‑General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit.
(3) If the Attorney‑General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.
486AB Operation etc. of decision
The making of an application referred to in section 486A does not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the decision.
486B Multiple parties in migration litigation
Application of section
(1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non‑citizens.
Consolidation of proceedings
(2) Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that:
(a) the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and
(b) the consolidation is desirable for the efficient conduct of the proceedings.
(3) No appeal lies from a decision by the court not to consolidate proceedings under subsection (2).
Other joint proceedings etc.
(4) The following are not permitted in or by a migration proceeding:
(a) representative or class actions;
(b) joinder of plaintiffs or applicants or addition of parties;
(c) a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.
Relationship with other laws
(5) This section has effect despite any other law, including in particular:
(a) Part IVA of the Federal Court of Australia Act 1976; and
(b) any Rules of Court.
(6) However, this section does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that this section does not apply.
Exceptions to general rules
(7) This section does not prevent the following persons from being involved in a migration proceeding:
(a) the applicants in the proceeding and any persons they represent, if:
(i) the regulations set out a definition of family for the purposes of this paragraph; and
(ii) all of those applicants and other persons are members of the same family as so defined;
(b) a person who becomes a party to the proceeding in performing the person’s statutory functions;
(c) the Attorney‑General of the Commonwealth or of a State or Territory;
(d) any other person prescribed in the regulations.
486C Persons who may commence or continue proceedings in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court
(1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court that raises an issue:
(a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non‑citizens; and
(b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations;
(whether or not the proceeding raises any other issue).
(2) Those persons are:
(a) a party to a review mentioned in section 479; or
(b) the Attorney‑General of the Commonwealth or of a State or a Territory; or
(c) a person who commences or continues the proceeding in performing the person’s statutory functions; or
(d) any other person prescribed by the regulations.
(3) This section applies to proceedings within the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under section 476 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law.
(3A) This section applies to:
(a) proceedings:
(i) that are transferred to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and
(ii) whose transfer are confirmed by the Federal Court under section 32AD of the Federal Court of Australia Act 1976; and
(b) proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c).
(3B) To avoid doubt, this section does not apply to proceedings that are transferred to the Federal Court under section 32AC of the Federal Court of Australia Act 1976.
(4) To avoid doubt, nothing in this section allows a person to commence or continue a proceeding that the person could not otherwise commence or continue.
Relationship with other laws
(5) This section has effect despite any other law.
(6) However, subsection (5) does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that it applies despite this section.
486D Disclosing other judicial review proceedings
(1) A person must not commence a proceeding in the Federal Circuit and Family Court of Australia (Division 2) in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(2) A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(3) A person must not commence a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(4) Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section.
(5) In this section:
judicial review proceeding, in relation to a tribunal decision, means:
(a) a proceeding in the Federal Circuit and Family Court of Australia (Division 2) in relation to the tribunal decision; or
(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
tribunal decision means a privative clause decision, or purported privative clause decision, made on review by the ART by application under Part 5 or section 500.
Part 8B—Costs orders where proceedings have no reasonable prospect of success
486E Obligation where there is no reasonable prospect of success
(1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
(a) the migration litigation has no reasonable prospect of success; and
(b) either:
(i) the person does not give proper consideration to the prospects of success of the migration litigation; or
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2) For the purposes of this section, migration litigation need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
486F Cost orders
(1) If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:
(a) an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation;
(b) an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation;
(c) where the person is a lawyer who has acted for the litigant in the migration litigation:
(i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer;
(ii) an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation.
(2) If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made.
(3) An order under this section may be made:
(a) on the motion of the court; or
(b) on the application of a party to the migration litigation.
(4) The motion or application must be considered at the time the question of costs in the migration litigation is decided.
(5) A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section.
486G Person must be given reasonable opportunity to argue against costs order
The court must not make an order under section 486F unless the person has been given a reasonable opportunity to argue why the order should not be made.
486H Limited waiver of legal professional privilege
(1) If, in proceedings to determine whether an order under section 486F should be made:
(a) a person wishes to produce a document, record or information for the purpose of arguing why an order under section 486F should not be made; and
(b) to do so would, but for this section, deny legal professional privilege to any person entitled to claim it;
the person may produce the document, record or information for that purpose.
(2) However:
(a) the document, record or information does not cease to be subject to legal professional privilege for any other purpose, or in any other circumstances; and
(b) the court must make any orders necessary to ensure that legal professional privilege is protected for other purposes and in other circumstances.