Remedy for an Injunction Kean Legal Barristers and Solicitors Migration Law

Migration Law Blogs Series (MLBS) 8 – Applying for the remedy of an injunction in the Federal Circuit Court- Part 1

By Mr Anthony J Aristei

This is the eighth in a series of blogs that is focusing 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.

As discussed in previous blogs when applying for a migration decision to be reviewed in the Federal Circuit Court, there is a strict time limitation. An applicant may be in a situation where a ‘remedy’ will need to be applied for on an urgent basis. 

The variety of remedies available to visa applicants in migration law were discussed in an earlier blog.

Do I need an injunction?

Each of the remedies has a specific function. In migration law, injunctions are primarily used to restrain or prevent the Department of Home Affairs Immigration and Citizenship (“Migration Department”) from taking further action against a Visa applicant. The order may be made on a temporary or permanent basis. 

An obvious example of an injunction in migration matters is an injunction restraining the Migration Department from removing a visa applicant from Australia. 

The remedy provides the applicant with sufficient time to apply to the Federal Circuit Court for substantive orders. The aim is to overturn an adverse decision which has been made by the Migration Department against him or her.

How to apply for an injunction?

The different remedies require specific procedures and evidence in order to be successfully invoked.

Professional care needs to be taken to ensure that the appropriate remedy is sought in the circumstances of the particular case. Migration law is littered with ‘tales of woe’ where the wrong remedy has been sought!

Applying for the remedy of an injunction is a two-stage process. 

  1. The first stage is to seek an order for an interlocutory injunction from the Court. 
  1. The second stage is that if that order is granted, the application is then programmed by the Federal Circuit Court to determine whether a final injunction should be made. (This two-stage process is further discussed in the blog on part 2 concerning injunctions).

The two-stage remedy of an interlocutory and a final injunction has been adopted and applied in Federal legislation. The legislation Is based upon the pre-existing legal principles governing the remedy: see section 15 of the Federal Circuit Court Act.

What do you need to satisfy the Federal Circuit Court in order to grant an injunction?

In order to obtain an order for an interlocutory injunction, a visa applicant must demonstrate to the Federal Circuit Court that:

  1. There is a ‘serious question’ to be tried; and if so
  1. The ‘balance of convenience’ favours the grant of the injunction.

In relation to the first question, it is usually necessary to establish there is a reasonable prospect of success in obtaining a ‘prerogative writ’ because of an identifiable ‘jurisdictional error’. (Both topics have been discussed in separate blogs).

Assuming that a serious case has been established, the Federal Circuit Court will then weigh up the question of convenience.

Applied to a visa application, the question is generally whether or not it is more ‘convenient’ to temporarily suspend the Migration Department from further acting – while the application is finally heard by the Federal Circuit Court.

There are very real and high stakes in these types of applications because if the injunction is not granted, the applicant may be ‘forced’ to leave Australia. If you require assistance in making this application, we highly recommend that you speak to Migration Lawyers to obtain legal advice and representation.

The office of Kean Legal Barristers & Solicitors can be contacted on: +61 8 6323 8697.

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