19 Feb 2015

Two wrongs don't always make a writ

by Caroline Bush, Mathew Bock

A recent decision of the High Court highlights the potential risks and consequences for decision-makers who are required to remake decisions on remittal, and serves as a reminder of the scope of remedies on judicial review.

The usual relief granted by a court to a successful applicant for judicial review is to set aside the decision under review and to remit the matter back to the decision-maker for reconsideration according to law. What if the subsequent decision on remittal is also challenged? What remedies are available?

A recent High Court decision shows that, in exceptional circumstances, the writ of "peremptory mandamus" can be issued to require that a decision-maker exercise their powers in a particular way, and is a timely reminder of the scope of remedies that courts may grant in the context of judicial review proceedings (Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3).

What relief is available on judicial review?

Relevantly, both the High Court of Australia and the Federal Court of Australia have original jurisdictional in all matters in which an injunction, a writ of prohibition or a writ of mandamus is sought against an officer of the Commonwealth, subject to limited exceptions. In this context:

  • an injunction is an order that restrains an officer of the Commonwealth from performing an act or, in more exceptional cases, compels the performance of a specific act;
  • a writ of prohibition forbids an officer of the Commonwealth from commencing an unlawful act or continuing to perform an unlawful act; and
  • a writ of mandamus compels an officer of the Commonwealth to perform their duty in accordance with the law.

In practice, the final relief most commonly sought by applicants in judicial review proceedings are a writ of certiorari (to, in effect, "quash" the decision) together with a writ of mandamus (to compel the decision-maker to remake their decision in accordance with the law). Injunction frequently arises as a form of interim order to preserve the rights and interests of parties to litigation until their dispute can be finally heard and determined.


The Plaintiff in this case had successfully argued in earlier proceedings before the High Court that a failure by the Minister to grant a protection visa was unlawful in the circumstances of his case. In particular, the High Court found that an instrument made by the Minister that set a cap on the maximum number of protection visas that may be granted in a particular financial year, which purported to prevent the Plaintiff from being granted a visa, was invalid by reason of its inconsistency with the Migration Act 1958 (Cth) (see Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 88 ALJR 722).

When the High Court made that earlier decision in June 2014, it ordered that a writ of mandamus issue to the Minister to the effect that the Plaintiff's application for a protection visa be reconsidered and determined in accordance with law.

On 17 July 2014, the Minister decided on remittal to refuse the Plaintiff's application on the basis that the Minister was not satisfied that the grant of the visa was in "the national interest" and that the Plaintiff therefore did not satisfy clause 866.226 of the Migration Regulations 1994 (Cth).

The matter was bought back before the High Court which had to decide two issues:

  • whether the Minister had lawfully applied the "national interest" criterion in clause 866.226 when making the new decision; and
  • if not, what relief should be granted to the Plaintiff.

The national interest criterion

The Court found that clause 886.226 could not be construed as permitting the Minister to treat the Plaintiff's status as an unauthorised maritime arrival, in and of itself, as sufficient to justify the conclusion that it was not in the national interest to grant the visa.

Traditionally, courts have been disinclined to interfere with a Minister's conclusion as to what may be in the "national" or "public" interest. Indeed, the Court referred to earlier authorities which suggested that in considering whether a matter was in the national interest, the decision-maker may:

"properly have regard to a wide range of consideration of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member, and thus, affect the Minister's continuance in office" (see Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438).

However, accepting the breadth of considerations that may fall within an assessment of the national interest in any given case, the Court held that views as to the content of the national interest "cannot proceed from, or be based in, an error of law".

In this case, the Court found that Minister had made an assessment of the "national interest" which proceeded from an error of law. In particular, the Court identified that it was an error of law to construe clause 866.226 as allowing the Minister to refuse to grant a valid application for a visa only because the Plaintiff was an unauthorised maritime arrival in circumstances where the Migration Act exhaustively prescribed the visa consequences which follow from a visa applicant's status as an unauthorised maritime arrival, and that the general words of clause 866.226 of the Migration Regulations could not add to the consequences which the Parliament had identified.

The Court concluded that the way in which the Minister had incorrectly applied the national interest criterion in clause 866.226 meant that he had not done what was commanded of him by the original writ of mandamus, because he had not made the decision according to law. Having reached that conclusion, the question then arose for the Court as to what relief should be ordered in the circumstances.

The relief to be granted

The High Court's decision in Plaintiff S297/2013 is particularly significant in the context of the law relating to judicial review remedies, as the High Court unanimously decided to issue a rarely utilised writ of "peremptory mandamus".

Peremptory mandamus, like mandamus, commands the performance of a duty. However, peremptory mandamus may only be issued by a court where a person who was subject to an earlier writ has failed to sufficiently perform their duty. It is, in essence, an order which serves to enforce compliance with a prior order of the Court.

The Court highlighted that such a writ was warranted only in exceptional circumstances and specified limits on the grant of such a remedy. Importantly, the Court decided that a writ of peremptory mandamus of this kind may only issue where:

  • a writ has already been issued and the response to that writ was "legally insufficient"; and
  • no alternate basis for the decision that would warrant further consideration on remittal is available; and
  • the terms of the peremptory writ do not alter the effect of the original writ, as the peremptory writ must direct obedience to the command of the original writ.

Nothing in the High Court's decision could be said to support the view that a court may, in first instance judicial review proceedings, grant of a writ of peremptory mandamus that directs a decision-maker to decide a matter in particular way. Rather, such a writ may only be considered in circumstances where a writ has already been issued and the response to that writ is found to be "legally insufficient". In the circumstances of this case, the High Court appears to have placed particular emphasis on the apparent absence of any alternative basis upon which the Minister might have refused to grant the visa to the Plaintiff.

This case serves to highlight that special care should be taken with decisions made on remittal and reminds decision-makers to be conscious of the scope of judicial review remedies that are available.

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