High Court of Australia

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

86 ALJR 162; 284 ALR 448

14 Dec 2011

Case Number: M10/2011

Before

French CJ, Gummow, Hayne, Heydon, Bell JJ

Catchwords

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.

Words and phrases – "continues to be a member of the immediate family", "continues to satisfy the criterion", "criteria to be satisfied at time of decision".

Migration Act 1958 (Cth) – ss 31(3), 47(1), 65(1), 65A.

Migration Regulations 1994 (Cth) – regs 2. 01, 2. 03(1), Sched 1, item 1402, Sched 2, Div 202. 2.

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