Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS APPELLANT

AND

ABBAS MOHAMMAD HASAN AL KHAFAJI RESPONDENT

Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji

[2004] HCA 38

6 August 2004

A254/2003

ORDER

1. Appeal allowed. 2. Orders 1, 2, 3, 4, 5, 6 and 8 of the Federal Court of Australia made 5 November 2002 set aside and in lieu thereof order that the application to that Court be dismissed. 3. The appellant to pay the respondent's costs in this Court.

Cause removed under s 40 of the Judiciary Act 1903 (Cth)

Representation:

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the appellant (instructed by Australian Government Solicitor)

S W Tilmouth QC with M B Manetta and H M Heuzenroeder for the respondent (instructed by Jeremy Moore & Associates)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji

Immigration – Unlawful non-citizens – Detention pending removal from Australia – No real prospect of removal from Australia in reasonably foreseeable future – Whether detention lawful under Migration Act 1958 (Cth) – Whether detention is temporally limited by purpose of removal – Whether requirement to remove as soon as reasonably practicable implies time limit on detention.