Migration Law Blogs Series (MLBS)  #7 – Migration Visas – Introduction to Legal Remedies

By Mr Anthony J Aristei

This is the seventh in a series of blogs that will focus on Migration Law.

If you are not sure if it you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is too late.

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

When you apply for judicial review in the Federal Circuit Court (‘FCC’) a particular Court document form is used to apply to the Federal Circuit Court against a rejected migration Visa. (Generally, see the Migration Regulations and Federal Circuit Court website).

The first part of that application is identifying the grounds for judicial review. The second part of that application requires you to state the remedy you are seeking. In the legal context a ‘remedy’ is what you are asking the Court to do in the event that you are successful in your application. 

What is a Writ?

A number of legal remedies are expressly or impliedly referred to in the court form, including Writs of certiorari, prohibition and mandamus.

These remedies are known in the wider area of administrative law as the ‘prerogative writs’. They were historically developed by the Courts to review the actions and conduct of government departments or officers. Thus, the specific area of law became known as ‘judicial review’.

The writs could be used against all forms of government bodies and officers, ranging from:

  • parking inspectors through to local councils; and
  • police officers through to cabinet ministers.

The different grounds for the issuance of a prerogative writ were developed by the Courts over more than 500 years.  Therefore, they represent as a sophisticated set of rules and procedures which are well-known and applied.

That common law system of judicial review has now been ‘inherited’ by the Federal Court’s legislation. Therefore, it is now applied by the Federal Courts which determine migration visa decisions.

Historically, the major ground for the issuing of a prerogative writ was to correct any ‘jurisdictional error’ identified by the Court.

What Can the Different Types of Writs Do?

Each type of writ had a different purpose. For instance, a Writ of mandamus would be issued to compel a government officer to carry out his or her duty. Even a Government Minister could be compelled by the use of such a Writ to comply with a particular legal procedure that he or she had failed to carry out.

Each of the prerogative writs had different effects and consequences. A writ of prohibition (for example) had the effect of stopping a government officer from carrying out an action that was otherwise unlawful. This writ could be used to stop a police officer from imprisoning a citizen when no offence had been committed (nor even suspected). 

What Writ to Apply for in Visa Matters

In the Federal Circuit Court form (noted earlier), it refers to the possibility of a decision of the migration Department or Minister being ‘quashed’. Legally speaking this means that the decision is treated as if it had never been made.

The effect of the major prerogative writs (such as certiorari and prohibition) was to ‘quash’ the original decision complained of.

If a Court of law issued this type of writ, the government body or Minister then had to re-decide the matter that had been quashed. If so, they were expected to decide in accordance with the legal rules they had previously ignored.

Jurisdictional error remains the primary basis for seeking a judicial review by the Federal Circuit Court. The grounds for identifying a jurisdictional error are covered in a number of separate blogs.

Apart from the prerogative writs, the remedies of a declaration and an injunction are also referred to in the Federal Circuit form. These remedies are also discussed in separate blogs.

In migration matters such as this, it is important to make sure that you apply for the correct remedy. If you get this wrong, you might be successful in your application but you may not get the result you are seeking. 

Therefore, it is important that you obtain legal advice. If you need urgent assistance, feel free to contact the office of Kean Legal Barristers & Solicitors on: +61 8 6323 8697

Leave a Comment

Your email address will not be published. Required fields are marked *