Sami v Minister for Home Affairs [2022] FCA 1513

Federal Court of Australia

Sami v Minister for Home Affairs [2022] FCA 1513 File number(s): WAD 257 of 2021

Judgment of: MORTIMER J

Date of judgment: 16 December 2022

Catchwords: MIGRATION – application for habeas corpus and injunctive and declaratory relief in respect of detention alleged to be unlawful because of the unlikelihood of the applicant's removal from Australia – where Court asked to make factual findings despite being bound by Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 as to the outcome of the application – burden of proof in an application for habeas corpus – identification of alternative legal tests for the lawfulness of detention if Al-Kateb is overruled – finding that, as a matter of reasonable practicability, the applicant is unlikely to be removed from Australia in the foreseeable future – finding that there is no real prospect that the applicant will be removed from Australia in the reasonably foreseeable future – application dismissed

Legislation: Constitution, Ch III Acts Interpretation Act 1901 (Cth), s 15A Migration Act 1958 (Cth), ss 13, 14, 189, 196, 198

Cases cited: Agha v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 164; 205 ALR 377 Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Alsalih v Manager Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 Applicant S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 Boughey v The Queen [1986] HCA 29; 161 CLR 10 Burgess v Commonwealth [2020] FCA 670; 276 FCR 548 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 Clubb v Edwards [2019] HCA 11; 267 CLR 171 Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; 146 CLR 336 Gore v Australia Securities and Investments Commission [2017] FCAFC 13; 249 FCR 167 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 Rahmatullah v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1573 Re French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361 Sami v Commonwealth of Australia [2018] FCA 1991 Sami v Commonwealth of Australia [2018] FCA 800 Sami v Minister for Immigration and Border Protection [2015] FCA 1496 Sami v Minister for Immigration and Border Protection [2016] FCA 1405 Sami v Minister for Immigration and Citizenship [2013] FCA 106 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 Sami v Minister for Immigration and Citizenship [2014] HCASL 212 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327; 70 NSWLR 448