Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369

FEDERAL COURT OF AUSTRALIA

Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369 MIGRATION – detention of non-citizen on the ground that he is an unlawful non-citizen – application for writ in the nature of habeas corpus – whether the continued detention of the applicant is unlawful – whether removal of the applicant from Australia is reasonably practicable. PRACTICE AND PROCEDURE – comity - consideration of decision of single Judge of the Federal Court of Australia – whether decision plainly wrong.

Migration Act 1958 (Cth), ss 5, 14, 36(2), 36(3), 189, 191, 196, 198, 253, 417 Immigration Act 1971 (UK) Immigration Ordinance (Hong Kong)

Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009 - followed Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375 – referred to K Mart Australia Ltd v Commissioner of Taxation [1995] FCA 760 – referred to Marr v Australian Telecommunications Corp (1991) 25 ALD 473 – referred to Upperedge v Baily (1994) 13 ACSR 541 – referred to Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 – referred to Repatriation Commission v Gorton (2001) 110 FCR 321 - cited Transurban City Link Ltd v Allan (1999) 95 FCR 553 – referred to Vo v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 371 - distinguished Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 - distinguished R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 – referred to Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 – referred to Re Chung Tu Quan & Ors [1995] 1 HKC 566 – referred to Zadvydas v Davis (2001) 533 US 678 – referred to ABBAS MOHAMMAD HASAN AL KHAFAJI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.210 of 2002