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

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.