The government is entitled to grant a protection visa to an Afghan man but refuse entry to his family, the high court has found.
On Thursday high court judges unanimously ruled there was no error in the decision to refuse the application on grounds that Australia did not have capacity to resettle all humanitarian visa applicants and only those of the highest priority could be successful.
Judges said there was just one criterion for granting a visa for family reunion in these circumstances and that required the minister to be satisfied there were compelling reasons.
The unnamed 21-year-old, a member of Afghanistan’s minority Hazara, fled Afghanistan for Iran with his family in 2003. In 2010 he was deported to but his family stayed in Iran.
He travelled to Australia by boat in 2010 as an unaccompanied minor and was granted a protection visa.
Subsequently his mother and three younger brothers applied for entry under a particular visa sub-class for immediate family of those granted refugee protection.
The minister’s delegate refused, saying many more people applied for resettlement than could be accepted. In 2013-14, more than 63,000 applied and only 11,000 were accepted.
The delegate did note the family’s strong links to Australia, that there was no other country suitable for resettlement and that they were subject to significant discrimination in Afghanistan.
His lawyer argued there was jurisdictional error with the immigration department according the family lowest priority for a number of reasons, including that he arrived on a people smuggler boat.
The high court judges said there was no error in the decision. The minister was entitled to consider the resettlement capacity of the Australian community and the number of places in the humanitarian program.