Wei v Minister for Immigration and Border Protection

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 The delegate's satisfaction was based on outdated information in PRISMS, which did not reflect the plaintiff's actual enrolment.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.