Shahi v Minister for Immigration and Citizenship [2011] HCA 52

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON AND BELL JJ

SAYED ABDUL RAHMAN SHAHI PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT

Shahi v Minister for Immigration and Citizenship [2011] HCA 52

14 December 2011

M10/2011

ORDER

Order that the question stated in the special case be answered as follows:

Question 1: Did the delegate make a jurisdictional error in finding that the plaintiff's mother did not meet the requirements of cl 202.221 of Sched 2 to the Migration Regulations 1994 (Cth)?

Answer: Yes.

Representation

L G De Ferrari for the plaintiff (instructed by Victoria Legal Aid (Civil Law Section))

S B Lloyd SC for the defendant (instructed by Australian Government Solicitor)

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

CATCHWORDS

Shahi v Minister for Immigration and Citizenship

Immigration – Visa – Refugee and Humanitarian (Class XB) visa – Subclass 202 Global Special Humanitarian – Plaintiff Australian permanent resident, eligible proposer for and held Subclass 202 visa – Plaintiff's mother applied for Subclass 202 visa – Primary criteria for grant of visa in cl 202.211 of Sched 2 to Migration Regulations 1994 (Cth) included that applicant "member of the immediate family of the proposer" on date proposer's visa granted and that applicant "continues to be a member of the immediate family of the proposer" at time of applicant's application for visa – Applicant must continue "to satisfy the criterion in clause 202.211" at time of decision for applicant's visa – Mother "member of the immediate family" of proposer only until proposer 18 years old – Plaintiff proposed mother for visa before turned 18 but Minister's delegate's decision not made until after plaintiff turned 18 – Minister's delegate decided that mother ceasing to be member of plaintiff's "immediate family" after date of application but before date of decision required refusal of mother's application – Whether "continues to be a member of the immediate family of the proposer" is criterion to be determined at time of application or time of decision – Whether jurisdictional error.