Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 12 February 2021
• Neutral Citation: [2021] FCA 90
• Court: Federal Court
• Date: 12 February 2021

Federal Court of Australia

Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 90

Appeal from:	Cai v Minister for Immigration & Anor [2020] FCCA 1225
File number:	VID 412 of 2020
Judgment of:	WHEELAHAN J
Date of judgment:	12 February 2021
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court, which dismissed an application for judicial review of an earlier decision of a delegate of the Minister for Immigration to cancel the appellant’s visa under s 116(1)(e)(ii) of the Migration Act 1958 (Cth) – whether the Tribunal erred by failing to consider the appellant’s daughter’s grandfather’s support – the Tribunal did so err, which amounted to a failure to accord procedural fairness, or a constructive failure by the Tribunal to exercise its review function, and that error was material – appeal allowed. ; MIGRATION – whether the Tribunal made a related error by its failure to make an obvious and easy inquiry into a critical fact – consideration of the principles essayed in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 and related authorities.
Legislation:	Migration Act 1958 (Cth) ss 116(1)(e)(ii), 363(1)(b) and 368 Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 280 ALR 393 Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50; 261 FCR 97 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 Karan v Minister for Home Affairs [2019] FCAFC 139 Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v SZTRF [2013] FCA 1377 Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 Navoto v Minister for Home Affairs [2019] FCAFC 135 Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 Politis v Commissioner of Taxation [1988] FCA 739; 16 ALD 707 PQSM v Minister for Home Affairs [2020] FCAFC 125; 382 ALR 195 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	62
Date of hearing:	30 November 2020
Counsel for the Appellant:	Mr M Kennealy
Solicitor for the Appellant:	Carina Ford Lawyers
Counsel for the First Respondent:	Mr N Wood
Solicitor for the Respondents:	Mills Oakley

ORDERS

		VID 412 of 2020
BETWEEN:	JIECHAO CAI Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	12 February 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Paragraphs 1 and 2 of the orders of the Federal Circuit Court made on 22 May 2020, by which the appellant’s application to that Court was dismissed with costs, be set aside, and in lieu thereof it be ordered that –

   1. a writ of certiorari issue to the Administrative Appeals Tribunal quashing its decision dated 7 January 2019, by which the cancellation of the applicant’s visa was affirmed;

   2. a writ of mandamus issue to the Tribunal requiring it to undertake its review according to law; and

   3. the first respondent pay the applicant’s costs in the Federal Circuit Court.

3. The first respondent pay the appellant’s costs in this Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The appellant appeals a decision of the Federal Circuit Court of Australia made on 22 May 2020, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal: Cai v Minister for Immigration & Anor [2020] FCCA 1225. The Tribunal had affirmed an earlier decision of a delegate of the Minister for Immigration to cancel the appellant’s visa under s 116(1)(e)(ii) of the Migration Act 1958 (Cth). For the following reasons, the appeal should be allowed with costs.

Background

2. The factual background to this appeal is not in dispute and may be summarised as follows.

3. The appellant is a 32 year old citizen of the People’s Republic of China. The appellant arrived in Australia in 2006, and married on 24 September 2013. On 16 April 2014, the appellant’s daughter was born. On 2 April 2015, the appellant was granted a Class UK Subclass 820 Provisional Partner visa with his then wife as sponsor. The appellant and his former wife separated on 19 March 2017. The appellant’s former wife and daughter remain resident in Australia.

4. On 9 May 2017, the appellant was served with a family violence intervention order issued by the Ringwood Magistrate’s Court in relation to an alleged incident that occurred between him and his former wife on 10 March 2017. The order stated that the affected family members were the appellant’s former wife and daughter. Amongst other prohibitions, the order prohibited the appellant from being within 200 metres of an address in Ringwood, where the appellant’s former wife and daughter lived. On 24 November 2017, the appellant was charged with various offences: intentionally causing serious injury; recklessly causing serious injury; intentionally causing injury; recklessly causing injury; unlawful assault; and contravention of an intervention order. These offences related to an alleged violent incident the previous day involving the appellant’s former wife and her father, to whom I shall refer as the grandfather. That alleged violent incident...