Policies
6. Civil law matters - when legal aid is available
6.18. Migration matters
6.18.1 When legal aid is available in migration matters
Legal aid is available for limited types of migration matters. It is available for representation and for advice and assistance as set out in sections 6.18.2 to 6.18.5 below.
6.18.2 Representation in a migration matter
Legal aid is available for representation in migration matters, including refugee matters, in the Federal Court, the Federal Circuit Court or the High Court.
Legal aid is only available in the following circumstances:
- where there is an arguable error of law
- where the proceedings seek to challenge the lawfulness of detention, not including a challenge to a decision about a visa or a deportation order.
For legal aid to be granted in these types of matters the following tests must be satisfied:
See Civil Law Guideline 3.2 on requirements to attend ADR.
See Civil Law Guideline 3.10 on applying tests in Commonwealth matters.
6.18.3 Visa cancellation matters – representation in the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court of Australia
Legal aid is available for representation in the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court of Australia to applicants who are challenging a cancellation of a visa under s501 of the Migration Act 1958 (Cth).
For legal aid to be granted in these types of matters the following tests must be satisfied:
- the Means Test
- the Unpaid Contributions Test
- Merit Test A
- the Availability of Funds Test, and
- Legal Aid NSW is satisfied the matter raises a significant human rights issue. See Civil Law Guideline 3.4.
6.18.4 Appeals from the AAT, Federal Circuit Court and Federal Court
Legal aid is available for appeals from the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court in relation to the cancellation of a permanent visa under s501 of the Migration Act 1958 (Cth).
For legal aid to be granted in these types of matters the following tests must be satisfied:
- the Means Test
- the Unpaid Contributions Test
- Merit Test A
- the Availability of Funds Test, and
- Legal Aid NSW is satisfied the matter raises a significant human rights issue, and
- Legal Aid NSW is satisfied there may be a strong prospect of a substantial benefit to be gained by the applicant in appealing from a decision of the AAT or the Federal Court.
6.18.5 Visa applications and representation in the AAT (Migration and Refugee Division)
Legal aid is available for representation by in-house legal practitioners at Legal Aid NSW for the following visa applications:
- Partner Visas where the applicant is eligible for an exemption under the family violence, child of the relationship or death of a sponsor exemption provisions; and
- XA-866 onshore Protection Visas
For legal aid to be granted in these types of matters the following tests must be satisfied:
Where a grant of legal aid was made to the legally assisted person at the primary stage, legal aid is available for representation in appeal proceedings in the Administrative Appeals Tribunal (Migration and Refugee Division).
For legal aid to be granted in these types of matters the following tests must be satisfied:
Date last published: 14/01/2019