MINISTER FOR IMMIGRATION AND BORDER PROTECTION DEFENDANT
Wei v Minister for Immigration and Border Protection
[2015] HCA 51
17 December 2015
S9/2015
ORDER
1.The time for the making of the application be extended to 8 January 2015.
2.A writ of certiorari issue quashing the decision made by the delegate of the defendant on 20 March 2014 to cancel the plaintiff's student visa.
3.A writ of prohibition issue preventing the defendant, or his agents, employees or delegates, from acting on or giving effect to or enforcing the decision of the delegate.
4.The defendant pay the plaintiff's costs of the application other than those costs which were the subject of the order for costs made by Gageler J on 20 August 2015.
Representation
S B Lloyd SC with L J Karp for the plaintiff (instructed by Ren Zhou Lawyers)
G R Kennett SC with R S Francois for the defendant (instructed by Clayton Utz Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wei v Minister for Immigration and Border Protection
Migration – Visa cancellation – Migration Act1958 (Cth), s 116(1)(b) provides that Minister may cancel visa if satisfied that visa holder has not complied with condition of visa – Where delegate cancelled plaintiff's visa on satisfaction that plaintiff had breached visa condition – Where delegate's satisfaction formed by process of fact-finding tainted by non-compliance of third party with imperative statutory duty – Whether delegate failed to make obvious inquiry as to critical fact – Whether decision affected by jurisdictional error.
Migration – Original jurisdiction of High Court – Where plaintiff's application for remedy made outside time limit in Migration Act1958 (Cth), s 486A(1) – Operation of s 486A.
Words and phrases – "extension of time", "imperative duty", "jurisdictional error".
This is an application for prohibition and certiorari which has been made in the original jurisdiction of the High Court under s 75(v) of the Constitution by the filing of an application for an order to show cause in accordance with the High Court Rules 2004 (Cth). Following agreement by the parties as to the facts, the application for an order to show cause has been referred for hearing by a Full Court.
The application relates to a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the plaintiff's student visa under s 116(1)(b) of the Migration Act 1958 (Cth). The delegate made that decision on the basis that he was satisfied that the plaintiff had not complied with a condition of the visa. The relevant condition was that the plaintiff be enrolled in a course of education provided by an institution registered under the Education…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Wei v Minister for Immigration and Border Protection [2015] HCA 51
Case
[2015] HCA 51
Decision Date
CaseChat Overview and Summary
The case of *Wei v Minister for Immigration and Border Protection* concerned a dispute over the cancellation of the plaintiff's student visa. The plaintiff, a citizen of the People's Republic of China, had his visa cancelled by a delegate of the Minister under s 116(1)(b) of the *Migration Act 1958* (Cth) on the basis that he had not complied with a visa condition requiring him to be enrolled in a registered course. The plaintiff sought remedies from the High Court of Australia.
The High Court was required to determine whether the delegate's decision to cancel the plaintiff's visa was affected by jurisdictional error. This involved considering whether the delegate's satisfaction that the plaintiff had breached his visa condition was formed by a fact-finding process tainted by the non-compliance of a third party, Macquarie University, with its statutory duty to record the plaintiff's enrolment in PRISMS. A further issue was whether the delegate failed to make an obvious inquiry as to a critical fact. The Court also considered the operation of s 486A(1) of the *Migration Act*, which imposes a time limit for applications for remedies, and whether an extension of time was warranted.
The Court reasoned that Macquarie University's failure to comply with its imperative statutory duty under s 19 of the *ESOS Act* to upload the plaintiff's enrolment details into PRISMS tainted the fact-finding process upon which the delegate relied. The delegate's satisfaction was based on outdated information in PRISMS, which did not reflect the plaintiff's actual enrolment. The Court found that the delegate ought to have made an obvious inquiry into the discrepancy, particularly given the plaintiff's failure to receive notification of the intended visa cancellation due to departmental errors in communication. This failure to make an obvious inquiry constituted a jurisdictional error. The Court also granted an extension of time for the plaintiff's application, finding it appropriate in the circumstances.
The High Court ordered that the time for the plaintiff's application be extended. It further ordered that a writ of certiorari issue to quash the delegate's decision to cancel the plaintiff's student visa, and a writ of prohibition issue to prevent the Minister or his agents from acting on that decision. The defendant was ordered to pay the plaintiff's costs, excluding those already the subject of a prior costs order.
Orders
Orders of the court
1. The time for the making of the application be extended to 8 January 2015.
2. A writ of certiorari issue quashing the decision made by the delegate of the defendant on 20 March 2014 to cancel the plaintiff's student visa.
3. A writ of prohibition issue preventing the defendant, or his agents, employees or delegates, from acting on or giving effect to or enforcing the decision of the delegate.
4. The defendant pay the plaintiff's costs of the application other than those costs which were the subject of the order for costs made by Gageler J on 20 August 2015.
Background
Background to the litigation
A decision by the Minister or his or her delegate to cancel a visa under s 116(1)(b) is reviewable on its merits by the Migration Review Tribunal[20], but only on an application lodged with the Tribunal within a specified period[21]. [20]Section 338(3) of the Migration Act. [21]Section 347(1)(b)(i) of the Migration Act.Facts The plaintiff is a citizen of the People's Republic of China. He is now 22 years old. He first travelled to Australia on a student visa when he was 15 years old. Having completed his secondary schooling in Australia, he went on to enrol in a course of study known as the "Foundation Program" provided by Macquarie University, a registered provider under the ESOS Act. The plaintiff was subsequently granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa, a student visa for the purposes of the ESOS Act. The plaintiff was in fact enrolled in the Foundation Program between 24 June 2013 and 13 June 2014. Unfortunately, confirmation of that enrolment was not recorded in PRISMS. It is to be inferred, on the balance of probabilities, that the confirmation of that enrolment was not recorded in PRISMS because Macquarie University failed to perform the obligation imposed on it by s 19 of the ESOS Act to upload the relevant information. On the basis of outdated information which was recorded in PRISMS, officers of the Department of Immigration and Border Protection formed the view in early 2014 that the plaintiff was not then enrolled in a registered course. A letter dated 3 February 2014 was sent by registered post to the plaintiff's last residential address known to the Department notifying him of an intention to consider cancelling his visa because PRISMS indicated that he had not been enrolled in a registered course since 26 July 2013. The letter was returned as unclaimed. A second letter, dated 25 February 2014, was sent to another address, obtained as a result of making a telephone call to Macquarie University. That second letter suffered the same fate. In the period between the sending of the first and second letters, an officer of the Department of Immigration and Border Protection succeeded in telephoning the plaintiff to ask for his then current address. The plaintiff responded "I'm not telling you that" and immediately hung up. According to the plaintiff, that was because he did not believe the caller's statement that he was from the Department. A little later, the same officer attempted to send an email to the plaintiff attaching a further copy of the letter dated 3 February 2014. The officer had the plaintiff's correct email address but, because of a typographical error by the officer, the email was sent to the wrong email address. The upshot was that, despite formal compliance with the requirement for notification under s 119(1) of the Migration Act, the plaintiff never in fact received notice that consideration was being given to cancelling his visa. The time for responding to the notification contained in the letter of 25 February 2014 having expired, a delegate of the Minister made a decision on 20 March 2014 to cancel the plaintiff's visa under s 116(1)(b) of the Migration Act for non-compliance with the condition of the visa that he be enrolled in a registered course. The parties are agreed that the decision was made because the delegate was satisfied, by reference to PRISMS, that the plaintiff had not been enrolled in a registered course since 26 July 2013. Written notice of the decision, and of the reasons for it, was set out in a letter which the delegate sent by registered post to the plaintiff on the same day. That letter too was returned unclaimed.