SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1116

FEDERAL COURT OF AUSTRALIA

SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1116

MIGRATION – application for order in the nature of a writ of habeas corpus – whether detention unlawful – where application for protection visa based on fear of persecution in Iran finally determined – where not 'reasonably practicable' to return applicant to Iran, but 'reasonably practicable' to return applicant to country of origin (Iraq) in 'reasonably foreseeable future' – whether officer obliged to consider fear of persecution in Iraq in determining whether removal to Iraq is reasonably practicable – whether applicant can rely on decision in Al Masri where applicant will not cooperate in removal – whether applicant can require Minister to determine refugee status once application for protection visa finally determined – whether definition of 'vessel' for purposes of s 218 Migration Act 1958 (Cth) is limiting or facultative – application dismissed.

Migration Act 1958 (Cth) ss 48A, 48B, 196, 198(6), 218, 417 Evidence Act 1995 (Cth) s 144

SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 546 referred to Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 followed M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290 followed SPKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 573 of 2003 LANDER J ADELAIDE 14 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 573 OF 2003

BETWEEN: SPKB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 14 OCTOBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed.