Chai v Minister for Immigration and Multicultural and Indigenous Affairs

In Chai v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant, a Korean citizen with Australian children, challenged the Minister's decision to cancel his visa on the basis of his criminal history. The applicant contended that the Minister failed to give appropriate weight to the best interests of his children, who were Australian citizens, and did not consider their citizenship status adequately in her decision-making process. The central issue before the court was whether the Minister's failure to consider the applicant's children's citizenship constituted a breach of procedural fairness and a jurisdictional error.

The court found that the Minister did not adequately address the citizenship status of the applicant's children in her reasons for cancelling the visa, despite the Direction under which she purported to operate advising that this factor should be considered. The omission was significant because citizenship carries rights and privileges that permanent residency does not, and it could have affected the weight attributed to the hardship caused by the applicant's removal. However, the court determined that this omission did not constitute a breach of procedural fairness or a jurisdictional error. The court emphasised that to establish a breach of procedural fairness, it must be shown that the procedure adopted was unfair, rather than merely that an expectation was disappointed. Given the circumstances, the court found no unfairness in the Minister's decision.

Consequently, the court dismissed the application and ordered the applicant to pay the respondent’s costs.