Sami v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

Sami v Minister for Home Affairs [2023] FCA 185

Appeal from:

Sami v Minister for Home Affairs [2022] FCA 1513

File number:

WAD 275 of 2022

Judgment of:

COLVIN J

Date of judgment:

7 March 2023

Date of publication of reasons:

8 March 2023

Catchwords:

MIGRATION - interlocutory application to stop applicant's removal from Australia - where applicant in immigration detention - where applicant's applications for visas and citizenship have been unsuccessful - where complaint previously made to the Australian Human Rights Commission and a notice issued - where one asserted basis for injunctive relief was under the Australian Human Rights Commission Act 1986 (Cth) - where interlocutory application filed in pending habeas corpus proceedings - application dismissed

Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 29, 46PO

Migration Act 1958 (Cth) ss 195A, 198

Cases cited:

ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199

Frigger v Trenfield [2019] FCA 1746

Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331

Division:

General Division

Registry:

Western Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

21

Date of hearing:

7 March 2023

Counsel for the Appellant:

The appellant appeared in person

Counsel for the Respondents:

Mr P Herzfeld SC with Mr J Wherrett

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

WAD 275 of 2022

BETWEEN:

TONY SAMI

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	7 MARCH 2023

THE COURT ORDERS THAT:

1.The interlocutory application is dismissed.

2.The applicant pay the respondent's costs of the interlocutory application

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Tony Sami is being held in immigration detention.  He has been told that arrangements have been made to remove him from the country by charter flight departing from Perth on 8 March 2023.  He seeks an interlocutory injunction restraining his removal.  He does so in circumstances where he has been in immigration detention for more than a decade.  During the course of the first seven years of his detention he made various visa applications, applied for Australian citizenship and sought review of various decisions refusing those applications.  All of those attempts to secure a lawful basis to remain in Australia were unsuccessful.  For the past three years he has been held in detention on the basis that the Migration Act 1958 (Cth) requires his detention until he is removed from Australia.

2. Since February 2022, Mr Sami has been pursuing an application for an order in the nature of habeas corpus or an injunction to require his release from detention into the Australian community.  He claims that he is being indefinitely detained and that is unlawful.  He seeks to challenge existing High Court authority concerning the interpretation…