Stay of removal
Statutory definition
Section 18.2 of the Federal Courts Act authorises the Federal Court to grant a stay of proceedings pending judicial review where the balance of convenience favours the stay. In immigration cases, the standard for a stay is: (1) a serious question to be tried; (2) irreparable harm if removal proceeds (usually because the claimant fears persecution); and (3) balance of convenience favours the stay. Automatic statutory stays apply during IAD appeal processes in most cases.
Explanation
A stay of removal is a critical and time-sensitive remedy. Practitioners seeking a stay must typically file an emergency motion with the Federal Court on very short notice before the removal flight. The application must demonstrate a strong arguable case for judicial review and irreparable harm from removal. If the judicial review application ultimately fails, the stay is lifted and removal proceeds. Some appeals to the IAD carry automatic stays — practitioners should check whether an automatic stay applies before seeking a court stay.