Rafiq v MIMIA

Case [2004] FCA 564

FEDERAL COURT OF AUSTRALIA

Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 564

CORRIGENDUM

MOHAMMED RAFIQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, LINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

No S 683 of 2003

FINN J
ADELAIDE
6 MAY 2004 (CORRIGENDUM 6 MAY 2004)


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 683 OF 2003

BETWEEN:

MOHAMMED RAFIQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

LINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

FINN J

DATE:

6 MAY 2004

PLACE:

ADELAIDE

CORRIGENDUM

1.In paragraph 3 of the Orders page delete “Refugee Review Tribunal” and replace with “Migration Review Tribunal”. 

2.On page 7 of the Reasons for Judgment in paragraph 21, (iii), delete “Refugee Review Tribunal” and replace with “Migration Review Tribunal”. 

I certify that the preceding two (2) paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of his Honour Justice Finn.

Associate:

Dated:6 May 2004


FEDERAL COURT OF AUSTRALIA

Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 564

MIGRATION – application for carer visa – whether assistance can reasonably be obtained from a resident relative where relative not willing to provide it – constructive failure to exercise jurisdiction

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 applied
Issa v Minister for Immigration and Multicultural Affairs [2000] FCA 128 applied
Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 206 CLR 57 applied

MOHAMMED RAFIQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, LINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

No S 683 of 2003

FINN J
ADELAIDE
6 MAY 2004


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 683 OF 2003

BETWEEN:

MOHAMMED RAFIQ
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

LINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

6 MAY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.A writ of certiorari be issued, directed to the second respondent, removing her decision in this matter into this Court for the purpose of quashing it.

2.        The decision be quashed.

3.A writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the matter the subject of the decision, according to law.

4.A writ of prohibition be issued, directed to the first respondent, prohibiting her from acting upon or giving effect to the decision of the second respondent.

5.        The first respondent pay the applicant’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 683 OF 2003

BETWEEN:

MOHAMMED RAFIQ
APPLICANT

AND:

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Details
AGLC
Rafiq v MIMIA [2004] FCA 564
Case
[2004] FCA 564
Decision Date

CaseChat Overview and Summary

The case of Rafiq v MIMIA involved the applicant, who sought to challenge the decisions of the Refugee Review Tribunal and the Minister for Immigration and Multicultural and Indigenous Affairs. The applicant argued that the Tribunal had failed to properly consider the evidence regarding the applicant's sister's unwillingness and inability to provide continuing assistance to their mother, and that this constituted a jurisdictional error. The primary focus of the case was the interpretation and application of subparagraph 1.15AA(1)(e)(i) of the relevant legislation, specifically whether the Tribunal had correctly assessed whether the applicant's mother could reasonably obtain the necessary assistance from the applicant's sister.

The court was required to determine whether the Tribunal had correctly applied the law in considering the evidence of the applicant's sister's capacity to provide assistance. The key issue was whether the Tribunal had misunderstood the test to be applied under subparagraph 1.15AA(1)(e)(i), which concerns the availability of assistance from relatives, and whether this misunderstanding constituted a jurisdictional error. The applicant contended that the Tribunal's error in law warranted the quashing of the decision and the mandating of a fresh hearing.

In delivering the judgment, the court found that the Tribunal had indeed misunderstood the applicable legal test and thus committed a jurisdictional error. The court noted that the Tribunal's focus should have been on whether the applicant's mother could reasonably obtain the necessary assistance from the applicant's sister, rather than on whether the sister could reasonably provide such assistance. This misinterpretation led to an incorrect application of the law and a flawed decision-making process. Consequently, the court issued a writ of certiorari to remove the decision into the Court, quashed the decision, and issued a writ of mandamus to require the Tribunal to rehear the matter according to law. Additionally, a writ of prohibition was issued to prevent the Minister from acting on the Tribunal's decision, and the Minister was ordered to pay the applicant's costs.

Orders

Orders of the court

1. A writ of certiorari be issued, directed to the second respondent, removing her decision in this matter into this Court for the purpose of quashing it.

2. The decision be quashed.

3. A writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the matter the subject of the decision, according to law.

4. A writ of prohibition be issued, directed to the first respondent, prohibiting her from acting upon or giving effect to the decision of the second respondent.

5. The first respondent pay the applicant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINN J
At the time the visa application was made (7 April 2000), the applicant’s mother lodged a statutory declaration in which she claimed that although her daughter provided assistance to her for the preceding six months, she was for her own personal reasons unable to continue to assist her. She relied in consequence upon the applicant. The applicant’s sister provided a letter to the Department on 10 April 2000 and, two years later, gave oral evidence to the Tribunal. The burden of those communications, as well as the Tribunal’s findings on par 1.15AA(1)(e)(i), are contained in the following paragraphs of the Tribunal’s reasons: “37.The nominator’s daughter, Mrs Mary Nur Jahan Mohammed, is a relative as defined in regulation 1.03. The Tribunal finds, based on the evidence given at the hearing, that the nominator has lived with her daughter, Mrs Mary Nur Jahan Mohammed, for many years, and that until the arrival of the visa applicant, she provided the care required by her mother. In considering whether the assistance provided by the visa applicant cannot reasonably be obtained from Mrs Mohammed, the Tribunal notes the letter dated 10 April 2000, in which Mrs Mohammed states that she has been looking after the nominator for the past 23 years and she now has personal problems with her husband and she requires some support herself. In this letter, Mrs Mohammed also stated that she is unable to look after the nominator now that the nominator is getting old and she has health problems. 38.Mrs Mohammed gave evidence at the hearing to support her claim that she is unable to continue to look after her mother. The Tribunal notes, however, that Mrs Mohammed is able to work 4 days a week. It is not apparent from the evidence available to the Tribunal that Mrs Mohammed’s personal difficulties with her husband have prevented her providing the assistance with the practical aspects of daily life for her mother. The Tribunal finds, based on the evidence of the visa applicant, that he moved away from his sister’s house with his wife in April 2002, and returned in November 2002. The visa applicant was not able to indicate precisely how long his mother stayed at Liverpool while he was living with his wife, however it appears that it was for a relatively short time. That means that for some months during 2002 the nominator was living with her daughter, and that the visa applicant provided assistance after work, at times when it would appear his sister was also available. In light of this evidence, the Tribunal is not satisfied that the assistance required by the nominator cannot reasonably be provided by her daughter, Mrs Mohammed.39.The visa applicant does not satisfy paragraph 1.15AA(1)(e)(i).”CONTENTIONS AND CONCLUSION ON PAR 1.15AA(1)(e)(i) The applicant contends that the Tribunal failed to address the sister’s stated unwillingness and inability to provide continuing assistance when applying the subparagraph. That provision does not deal with whether the applicant’s sister could reasonably provide the necessary assistance. Its concern in the circumstances was with whether the applicant’s mother could reasonably obtain that assistance from the applicant’s sister. The Tribunal misunderstood the test to be applied and in so doing committed a jurisdictional error.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

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