Sayed Abdul Rahman Shahi arrived on Christmas Island from Afghanistan as an unaccompanied minor seeking asylum in May 2009, and was granted a protection visa in September.
Three months later his family applied for visas as "split family", but in the nine months it took the Immigration Department to process the application, Mr Shahi turned 18. Because he was now an adult, the department decided his family was no longer eligible to come to Australia.
The Full Bench of the High Court yesterday met in Adelaide to consider Mr Shahi's challenge, which if successful could be another blow to the Gillard government's commitment to breaking the people-smugglers' model.
She questioned whether the department had delayed making the decision because of an informal quota set by the department on the number of family members allowed to enter Australia, or a "go slow" policy in processing split family visa applications for unaccompanied minors.
Mr Shahi's barrister, Lisa De Ferrari, yesterday asked the High Court to overturn the decision by the department and clarify whether the law applied to the age of the visa applicant at the time of application or at the time the decision was made.
She said the existence of a scheme that allowed a cap on the number of visas and the possible authorisation of a delay in processing an application supported Mr Shahi's claims of unfair treatment.
She argued that if the criteria were met at the time of application, then "it is always met".
"In the present case, the delegate took nine months to make a decision in respect of the plaintiff's mother's application for a sub-class 202 visa, then took another three months before notifying her," Ms De Ferrari said.
Barrister Stephen Lloyd SC, representing Immigration Minister Chris Bowen, denied the department was cutting back the number of split family visa approvals through administrative delay. "There wasn't a material delay, there was a nine-month period, but things have to be done," Mr Lloyd said. "There's no evidence to suggest nine months is slow for this type of visa."
He argued that immigration had to account for changes in circumstances between the time of application and a decision, saying not to do so would be absurd.
"A line has to be drawn, and in my submission there isn't any innate unfairness," Mr Lloyd said.
The case follows the decision made by the High Court this month that an unaccompanied child asylum-seeker could not lawfully be taken from Australia without Immigration Minister Chris Bowen's written consent under the Immigration (Guardianship of Children) Act.
The decision undermined Mr Bowen's aim to break the people-smugglers' model by sending unaccompanied children to Malaysia and thus deterring their parents from putting them on boats.
The High Court has reserved its judgment in the case. (theaustralian.com.au)
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