Jurisdictional Error When Relying On Incorrect Information: Wei v Minister for Immigration and Border Protection [2015] HCA 51
Thursday 17 December 2015 @ 12.34 p.m. | Legal Research | Immigration
The High Court has today unanimously ordered the quashing of a decision by a delegate of the Minister for Immigration to cancel the visa of a Chinese student whose enrolment was not correctly entered into an electronic database system in Wei v Minister for Immigration and Border Protection [2015] HCA 51.
Facts
The plaintiff, Wei, is a Chinese citizen who was enrolled in a course of study at Macquarie University between 24 June 2013 and 13 June 2014. The course of study satisfied the requirements for a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa for the purposes of the Education Services for Overseas Students Act 2000 (Cth) (the “ESOS Act”) and the Migration Act 1958 (Cth).
Under section 19 of the ESOS Act, registered education providers must provide confirmation of enrolment for each holder of a student visa that is enrolled with them. One of the methods through which this information can be recorded is an electronic database called the Provider Registration and International Student Management System (“PRISMS”).
Although the plaintiff was enrolled at Macquarie University, his confirmation of enrolment was not uploaded to PRISMS. As a result, the Department of Immigration and Border Protection formed the view that the plaintiff was not enrolled in a registered course and sent him a registered letter on 3 February 2014 to his last known residential address, advising him they were considering cancelling his visa. This letter was not claimed. An officer from the Department contacted Macquarie University to obtain an alternate address for the plaintiff, however a second registered letter sent on February 25 to this address was also not claimed. An attempt was made to reach the plaintiff by telephone, but the plaintiff hung up as he did not believe the call was from the Department. An officer also attempted to email the plaintiff, but did not correctly address the email.
The plaintiff’s visa was cancelled on 20 March 2014, as the plaintiff was deemed to have not responded to the notification. A registered letter with notice of the decision was also not claimed. The plaintiff discovered his visa was cancelled on 2 October 2014, and lodged an application for review at the Migration Review Tribunal. However, the Tribunal decided it could not review the application as it was lodged too late after the cancellation date. The plaintiff then applied to the High Court.
High Court Decision
While the three judges unanimously agreed on the orders in the case, their reasoning for where jurisdictional error occurred differed.
In a joint judgment, Gageler and Keane JJ found that the Department’s decision to cancel the plaintiff’s visa was:
“formed by a process of fact-finding which was tainted by Macquarie University's antecedent breach of its duty, under s 19 of the ESOS Act, to upload onto PRISMS confirmation of the plaintiff's then current enrolment.” [at 34]”
While the plaintiff’s application for review was undoubtedly outside the time for review given in the Migration Act (35 days after the written notice was issued, 20 March 2014), their Honours found under section 486A of the Migration Act that it was necessary in the interests of the administration of justice to extend this period, saying:
“We are also satisfied that the plaintiff's delay in making the application has been satisfactorily explained. For much of the period of the delay, the plaintiff was simply unaware of the decision. When he did become aware of it, he acted expeditiously in attempting to challenge the decision by immediately seeking to review the decision on its merits in the Migration Review Tribunal.”
Nettle J agreed with the orders but wrote separate reasons. He did not agree that the mere fact that PRISMS contained the inaccurate information mean the Department had made a jurisdictional error. Instead, he argued that the mistake was “an error of fact made in the exercise of jurisdiction” [at 48], noting that the process of asking the plaintiff to comment on proposed grounds for cancellation and providing merits review, accounted for the possibility of errors. However, he went on to say:
“It does not follow, however, that there is nothing which can be done for the plaintiff. In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J held that… where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction.” [at 49].
Here he noted that since all registered letters had been returned, the Department should have been aware that there was a possibility that the plaintiff did not know of the possible cancellation of his visa. This meant that it was “more than usually important for the delegate to be as certain as reasonably possible that the proposed ground of cancellation existed” [at 50]. Since there was nothing in the legislation to provide that PRISMS should be treated as a definitive record, His Honour concluded that the Department’s failure to call the University and check the plaintiff’s enrolment amounted to a jurisdictional error, especially considering that the Department had already called the University to obtain an alternate address for the plaintiff. He therefore concurred in the orders made by the majority judges.
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Sources:
Wei v Minister for Immigration and Border Protection [2015] HCA 51
