SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104

FEDERAL COURT OF AUSTRALIA

SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104 MIGRATION – application seeking orders permanently restraining the applicant from being removed from Australia by Minister – proposed removal under s 198(6) Migration Act 1958 (Cth) – whether condition of exercise of power under s 198(6) that removal could constitute refoulement contrary to Australia's obligations under the Refugees Convention or the Torture Convention – meaning of 'finally determined' under s 198(6) Migration Act 1958 (Cth) – whether application for protection visa finally determined – whether 'application' to Minister under s 417 of Act means application for protection visa not finally determined – whether Minister's discretion under s 417 is a form of review under Pt 7 of the Act.

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 5, 36, 198, 412, 417 Mokhtaryan v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 110 FCR 416; [2001] FCA 1057 referred to SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 185; [2002] FCAFC 86 referred to SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 921 referred to NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 applied M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290; [2003] FCAFC 131 applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to VFAY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 14 distinguished Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 referred to SAAK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 624 of 2003