Applying for Injunction Migration Visas Migration Law Kean legal Barristers and Solicitors

Migration Law Blogs Series (MLBS) 6-Migration visas- Applying for an injunction- part 2

By Mr Anthony J Aristei

This is the sixth in a series of blogs that are focusing on Migration Law.

If you have a migration issue and you are not sure what stage it is at or if it should be taken to the Court or Tribunal please contact our office for legal advice. It is best to seek this advice early, than to wait until it may be too late.  

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor form Kean Legal Barristers & Solicitors is ready to help.

In my earlier blog in this series, we discussed certain aspects of the remedy for an injunction.

What is an injunction?

In migration law, an injunction is a legal term which generally refers to a Court order to prevent an action from otherwise being taken by the migration Department of Home Affairs.

The remedy is often used when urgent orders are needed. For example, if a visa applicant is about to be removed from Australia by officers of the Department of Home Affairs, the remedy might be appropriate.

What does the Court consider when looking at whether to grant an injunction?

Speaking generally, there are usually two stages involved when seeking an injunction from the Court.

  1. The first stage is to seek an urgent interlocutory (or interim) injunction from the Court in order to protect and maintain the applicant’s existing position (i.e. stopping the Department from removing an applicant from Australia). This order is made on a temporary basis. 

If the order is successfully obtained at the first stage, then the Department will be suspended from taking any further steps against the visa applicant until the second stage of the application can be determined.

  1. The second stage of the application is similar in nature to the first stage. However, it finally determines whether or not the order should be made on a permanent basis.

At the second stage hearing, both the visa applicant and the Department are given an adequate opportunity to present their case to the Court. 

Yet, no Court can grant a remedy unless there is a corresponding legal action which entitles the claimant to that particular remedy.

  1. What this means is that in most migration law cases, the visa applicant firstly needs to show that there has been a ‘jurisdictional error’ made by the Department.
  1. Secondly, it must also be shown that the error necessarily entitles the visa applicant to the particular remedy sought. 

The right answers to these questions are often steeped in legal procedure. Careful analysis is needed in order to ‘choose the right path’ to be taken.

The Federal Circuit Court has the power (usually referred to as ‘jurisdiction’) to grant an injunction in relation to ‘migration decisions’: see section 476 (1) of the Migration Act 1958 (Cth).

However, a ‘migration’ decision has a very specific meaning under the Act.  Not all ‘decisions’ related to a migration application are within the definition.

In the case of MZZFW v MIBF [ 2015] FCA 478, for example, the Court ruled that it had no jurisdiction to grant an injunction remedy in relation to a protection visa case before it.

The primary reasons for refusal were that:

  1. the injunction had been sought against a recommendation obtained during the removal process (not to an actual ‘decision’ that was made); and
  1. Section 197C of the Migration Act also prevented the Court from issuing an injunction to prevent the removal of the visa applicant.

So, where there are potential difficulties in identifying the correct remedy or the proper Court to hear a matter, extra care is strongly recommended.

If you need urgent assistance for help preparing an injunction application, feel free to contact our 24/7 office number on: +61 8 6323 8697

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