Case Law: Tahiri v Minister for Immigration and Citizenship [2012] HCA 61

The High Court has handed down its decision in the case of Tahiri v Minister for Immigration and Citizenship [2012] HCA 61, finding that the Minister for Immigration and Citizenship did not err in refusing a combined application for a Subclass 202 Refugee and Humanitarian (Class XB) visa by the plaintiff's mother and her four dependent children.

Background

The plaintiff, Mr. Tahiri, is a citizen of Afghanistan. He arrived in Australia at the age of 17 and was granted a protection visa. The plaintiff proposed his mother's application for a visa with four of her children as additional applicants. The mother and the four children are likewise citizens of Afghanistan living in Pakistan. The children's father has been missing since 2003.  

  Delegate's Decision   The criteria for granting the combined application included satisfaction of public interest criterion 4015 ("PIC 4015").  PIC 4015 relevantly required the delegate to be satisfied either that the law of the children's home country permitted their removal, or that each person who could lawfully determine where the children were to live consented to the grant of the visa.     The delegate found that the children's home country was Afghanistan and was not satisfied that the law of Afghanistan permitted the removal of the children.  The delegate also found that the persons who could lawfully  determine where the children were to live included the children's father, or (if he was dead) his relatives, and was not satisfied that any of them consented to the grant of the visa.     Mrs Tahiri explained to an officer of the Department in an interview that her husband had disappeared after going to Kandahar to work. When asked to provide evidence that the children satisfied PIC 4015, Mrs. Tahiri produced what purported to be documents from the "Aram High Court, Kabul, Afghanistan," stating that the Court did not have any objection to the children leaving Afghanistan. These documents were considered not to be genuine.    The delegate was required by the Act to notify Mrs Tahiri of the refusal and to specify the criterion not satisfied, but was not required to give reasons to why the criterion was not satisfied. The delegate gave no reasons.   Initial Proceedings   In a proceeding commenced in the original jurisdiction of the Court, the plaintiff sought to have the delegate's decision quashed and the defendant compelled to determine the visa application according to law.     Under the rules of the Court, the parties agreed to submit a special case stating questions of law for the opinion of the Full Court.   High Court Decision   The High Court held that the delegate's factual conclusions were reasonably open and that the plaintiff failed to establish that the delegate proceeded on an incorrect legal understanding of PIC 4015.     It also held that although the delegate may have taken into account certain material not disclosed to the plaintiff's mother, that material was not shown to be adverse in any sense requiring its disclosure in accordance with obligations of procedural fairness.    The High Court concluded that:   1. The delegate did not make a jurisdictional error in finding that paragraph (a) of PIC 4015 was not satisfied in relation to each additional applicant.   2. The delegate did not make a jurisdictional error in finding that paragraph (b) of PIC 4015 was not satisfied in relation to each additional applicant.   3. The Decision was not made in breach of the rules of natural justice.   4. The plaintiff should pay the costs of the special case.    Follow the developments in this case with our Case Law service. TimeBase Case Law includes a comprehensive collection of over 25,000 full text Australian judgments. It is a fast and convenient service giving you access to current and past case law with the ease of powerful, expansive searching. Contact us for a free trial today.