Shahi v Minister for Immigration and Citizenship

In this matter before the High Court of Australia, the plaintiff, an Australian permanent resident and eligible proposer, sought judicial review of a decision by a delegate of the Minister for Immigration and Citizenship to refuse a Subclass 202 Global Special Humanitarian visa for his mother. The core of the dispute concerned the interpretation of the visa application criteria, specifically whether the applicant's mother continued to meet the definition of "member of the immediate family of the proposer" at the time of the decision, given that the proposer had turned 18 between the application date and the decision date.

The legal issues before the Court were whether the delegate made a jurisdictional error in finding that the plaintiff's mother did not meet the requirements of clause 202.221 of Schedule 2 to the Migration Regulations 1994 (Cth). This required the Court to determine the temporal scope of the criterion that the applicant "continues to be a member of the immediate family of the proposer," and whether this criterion needed to be satisfied at the time of the visa application or at the time of the decision.

The Court reasoned that the definition of "member of the immediate family" in regulation 1.12AA(1) stipulated that a person is a parent of another if the latter is not 18 years or more. The plaintiff had applied for the visa before turning 18, at which point his mother was considered an immediate family member. However, the delegate's decision was made after the plaintiff turned 18, meaning his mother no longer fell within the definition of an immediate family member. The Court found that clause 202.211(2)(c) of the Migration Regulations, which requires the applicant to "continue to be a member of the immediate family of the proposer," was the critical provision. The Court concluded that this criterion, unlike others within subclause (2) of clause 202.211, had a specific temporal requirement that differed from other elements.

The High Court answered the question stated in the special case in the affirmative, finding that the delegate did make a jurisdictional error in determining that the plaintiff's mother did not meet the requirements of clause 202.221.