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

The appeal in Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved a citizen of the People’s Republic of China who had arrived in Australia in 2006. He married in 2013 and had a daughter in 2014. He was granted a visa in 2015, but his marriage ended in 2017. He was charged with family violence offences, and his visa was subsequently cancelled on the basis that his presence in Australia posed a risk to the health or safety of his former wife, his daughter, and the grandfather of his daughter. The appellant sought judicial review of the decision, which was dismissed by the Federal Circuit Court. The appellant then appealed to the High Court.

The central legal issues in the case were whether the Administrative Appeals Tribunal had erred in failing to consider the grandfather's support for the appellant's application, and whether the Tribunal had made a related error by its failure to make an obvious and easy inquiry into a critical fact. The appellant argued that the Tribunal's failure to consider the grandfather's support constituted a denial of procedural fairness or a failure to consider material critical to the review. The Minister argued that the grandfather's support was limited to a reference to an omitted letter detailing unspecified information about the appellant's upbringing, and a reference to the grandfather's desire for the appellant to have a role in his daughter's upbringing and a meaningful relationship with her. The Minister also argued that there was no realistic possibility that the decision would have been different if the Tribunal had considered those matters, so any error was immaterial.

The High Court found that the Tribunal had indeed erred by failing to consider the grandfather's support of the appellant's application for the Tribunal to set aside the delegate's decision to cancel his visa. The Court found that the Tribunal's failure to consider the grandfather's support constituted a denial of procedural fairness or a failure to consider material critical to the review. The Court also found that the Tribunal had made a related error by its failure to make an obvious and easy inquiry into a critical fact, and that this 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.

The appeal was allowed, and the decision of the Federal Circuit Court was set aside. A writ of certiorari was issued to the Administrative Appeals Tribunal quashing its decision dated 7 January 2019, by which the cancellation of the applicant’s visa was affirmed. A writ of mandamus was also issued to the Tribunal requiring it to undertake its review according to law. The first respondent was ordered to pay the appellant's costs in the Federal Circuit Court and in this Court.