M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131

FEDERAL COURT OF AUSTRALIA

M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131 MIGRATION – appeal against summary dismissal of application for an injunction to restrain Minister for Immigration & Multicultural & Indigenous Affairs from returning appellant to Iran – unlawful non-citizen in detention – administrative review avenues exhausted – assumed fact that appellant unwilling to return to Iran owing to a well-founded fear of persecution in Iran – assumed fact that appellant's life or liberty would be threatened for 'Convention reasons' if returned to Iran – whether s 198(6) of the Migration Act 1958 (Cth) authorised the Minister for Immigration & Multicultural & Indigenous Affairs to return appellant to Iran – scope of the duty imposed by s 198(6) of the Migration Act 1958 (Cth) – meaning of "reasonably practicable" – whether duty imposed by s 198(6) of the Migration Act 1958 (Cth) constrained by Australia's non-refoulement obligations under the Status of Refugees Convention and the Torture Convention – jurisdiction to review performance of duty pursuant to s 198(6) of the Migration Act 1958 (Cth). WORDS AND PHRASES – "reasonably practicable"

Migration Act 1958 (Cth), ss 4, 5(1), 5(9), 29, 48B, 65, 196, 198(6), 417, 474, 476 Judiciary Act 1903 (Cth), s 39B Federal Court of Australia Act 1976 (Cth), ss 19(1), 23 Administrative Decisions (Judicial Review) Act 1977 (Cth), 3(1), Sch 1, par (da) Federal Court Rules, O 20 r 2 Migration Regulations 1994 (Cth) , Sch 2, reg 1.06, 785.211, 785.221, 785.222

Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, Arts 1A(2), 33 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art 3(1)