Bader v Minister for Immigration - [2018] FCCA 485

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADER v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 485

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a family residence visa – Tribunal finding that the applicant would not provide substantial and continuing assistance to the sponsor – whether the Tribunal misconstrued the visa criterion considered – more than one person can provide substantial and continuing assistance – assistance may be substantial even if another carer is providing more substantial assistance – jurisdictional error established.

WORDS AND PHRASES – Substantial and continuing assistance.

Legislation:

Migration Act 1958 (Cth), ss.359AA, 477

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration v SZIAI [2009] HCA 39; 83 ALJR 1123

Perera v Minister for Immigration [2005] FCA 1120

Xiang v Minister for Immigration [2004] FCAFC 64

Applicant:

YOUSSEF BADIH BADER

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3267 of 2016

Judgment of:

Judge Driver

Hearing date:

22 February 2018

Delivered at:

Sydney

Delivered on:

20 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Solicitors for the Applicant:

Westside Legal

Counsel for the Respondents:

Ms N Laing

Solicitors for the Respondents:

Mills Oakley

ORDERS

A writ of certiorari shall issue, removing the record of the decision of the Administrative Appeals Tribunal made on 16 September 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it, according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3267 of 2016

YOUSSEF BADIH BADER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant, Mr Bader, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 September 2016. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant Mr Bader a family residence visa (carer visa).
The following statement of background facts is derived from the submissions of the parties.
Mr Bader is a citizen of Sweden and Lebanon. He applied for the carer visa on 27 March 2015, on the basis of care for his sister (sponsor).[1]
[1] Court Book (CB) 28-63.
On 5 January 2016, the delegate refused the application on the basis that clause 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not met.[2] The delegate was not satisfied that Mr Bader was the carer of the sponsor within the meaning of regulation 1.15AA.
[2] CB 345-350.
Mr Bader applied to the Tribunal for review of the delegate’s decision on 18 January 2016.[3]
[3] CB 353-354.

Tribunal decision

The issue before the Tribunal was whether Mr Bader was “willing and able” to provide “substantial and continuing assistance of the kind needed” within the meaning of regulation 1.15AA.
The Tribunal found that Mr Bader did not meet this criterion.
Of significance to the Tribunal’s decision was its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 485
Decision Date: 20 March 2018

CaseChat Overview and Summary

Bader (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of a family residence visa. The core of the dispute concerned the Tribunal's finding that the applicant would not provide "substantial and continuing assistance" to the sponsor, a criterion for the visa. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had misconstrued the meaning of the visa criterion "substantial and continuing assistance". Specifically, the Court had to determine if the Tribunal erred in law by finding that the applicant's potential assistance could not be considered "substantial" if another person was providing more substantial assistance, or if more than one person could provide such assistance.

Judge Driver reasoned that the Tribunal had indeed made a jurisdictional error by misinterpreting the criterion. The Court held that the term "substantial and continuing assistance" did not require the applicant's assistance to be the *most* substantial form of assistance available. Rather, assistance could be considered substantial even if another carer was providing more significant support, and it was open for more than one person to provide substantial and continuing assistance. The Tribunal's restrictive interpretation of the criterion led to an error of law.

The Court found that jurisdictional error had been established and accordingly made orders setting aside the Tribunal's decision.

Orders