Life is full of surprises! 

As well as unexpected twists and turns! 

And surprising outcomes! 

So why should migration cases be any different? 

Well, they’re not! Strange, unusual and unanticipated things can happen. 

And cases that might seem problematic, difficult, or “doomed to fail” may actual turn out to be successful when judicial review is sought in the Federal Courts. 

A recent decision by Judge Driver of the Federal Circuit Court in the case of Bader v Minister for Immigration (2018) FCCA 485 (20 March 2018) is a prime example. 

Let’s start with the facts: 

How would you rate the chances of a person’s obtaining a carer’s visa given this scenario: 

The applicant conceded that he wished to work full time in Australia on a permanent basis. 

When asked by the Tribunal whether he had been working while the holder of a bridging visa, he initially denied that he had been working, and only varied his evidence on this point when contradictory information was put to him by the Tribunal based on material from his bridging visa application. 

Furthermore, the applicant also acknowledged that most of the care for his sponsor, his sister, was being provided by his mother who undertook most of the care responsibilities, such as doing most of the cooking, dressing and undressing the sponsor, taking her to the toilet, washing her, washing her clothing, and taking care of her baby during the night. 

The applicant stated that his contribution to his sister’s care consisted of driving her to appointments, assisting with some of the cooking, and doing some housework and some supervision of his sister’s child. 

Against this background, the Tribunal concluded that the applicant did not satisfy the definition of a “carer” within the meaning of regulation 1.15AA, in that he could not be considered to be “willing and able to provide his sister with substantial and continuing assistance in attending to the practical aspects of daily life. 

So, in this case, because another person was responsible for providing most of the care that was required by the sponsor, the Tribunal essentially concluded that the applicant would not be providing substantial and continuing assistance for the sponsor. 

Was the Tribunal right or wrong in reaching this conclusion? 

Although the answer might appear to some to be “counterintuitive” on these facts, Judge Driver concluded that the Tribunal’s conclusion was incorrect, and that the Tribunal’s interpretation of the regulation amounted to jurisdictional error. 

It was Judge Driver’s view that it was erroneous for the Tribunal to proceed on the assumption that just because another person was providing most of the care for the sponsor, that a visa applicant cannot, in a supportive role, also provide substantial and continuing assistance. 

So, the fact that another person is the “dominant carer” does not mean that it is not possible that another person can also satisfy the definition of a carer in a lesser role, and that the person is not someone who cannot provide substantial and continuing assistance. 

So there you have it! Not everything is as it first appears! And when the Department or the Tribunal make visa decisions based on “assumptions” about what is or is not possible, those decisions may be vulnerable to challenge. 

So, positive surprises can and do happen all the time; sometimes, though, it does take the intervention of the courts to correct misinterpretations of the regulations, so that the surprise can become a reality!