Federal Court of Australia
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
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