FEDERAL COURT OF AUSTRALIA
Rafiq v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 564CORRIGENDUM
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
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTLINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL 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 564MIGRATION – 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 appliedMOHAMMED 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
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTLINDA PEARSON, MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENTJUDGE:
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
APPLICANTAND:
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- AGLC
- Rafiq v MIMIA [2004] FCA 564
- Case
- [2004] FCA 564
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by: FINN J
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