Bader v Minister for Immigration

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.