Wei v Minister for Immigration and Border Protection

The High Court has decided a special case challenge the Minister for Immigration and Border Protection’s decision to cancel a international student visa. The plaintiff completed a tertiary program at Macquarie University while on a student visa. The University, however, allegedly did not issue a confirmation of enrolment as required by s 19 of the Education Services for Overseas Students Act 2000 (Cth) until after the completion of the course, and the plaintiff’s enrolment was not recorded on the relevant system at the Department. Having recognised apparent grounds for cancelling the visa due to non-enrolment, the Minister’s delegate made enquiries at the University about the plaintiff’s status but did not ask whether or not the plaintiff was enrolled, and proceeded to cancel the plaintiff’s visa. Before the High Court the plaintiff contended that this failure was unreasonable and constituted jurisdictional error, and that in the alternative the University’s failure to comply with its obligations vitiated the delegate’s decision.

The High Court agreed that the delegate’s decision was affected by jurisdictional error, and made orders to quash the 20 March 2014 decision, to prevent the Minister from acting on or giving effect to that decision, and extended the time for making the application to 8 January 2015 (the date on which these proceedings were filed). The joint judges (Gageler and Keane JJ) first noted that jurisdictional error involves a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by a statute (at [23]), and that statutory provisions that condition that validity as ‘imperative’ or ‘directory’ duties express a conclusion about the process of statutory construction which must still involve an inquiry into whether the statutory purpose of the duty, within the context of the legislative scheme, ‘would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid’ (at [26], see also [24]–[28]). Here, s 19 imposed a duty on a registered provider to upload to PRISMS a confirmation of enrolment for a student visa holder, and within the overall scheme, ‘there is little difficulty in concluding that the statutory purpose of that duty would be advanced by holding that an exercise of the power to cancel a visa’ under s 116(1)(b) of the Migration Act 1958 (Cth) ‘that is affected by a breach of that duty is invalid’: at [29]. Gageler and Keane JJ held that it was manifestly unjust to a student visa holder to allow a cancellation of the visa on the basis of incorrect information: because the duty to upload is an imperative duty non-compliance with that duty will result in the invalid exercise of the power to cancel a visa, and the delegate’s satisfaction that the plaintiff was not enrolled in a course was tainted by the University’s earlier breach  (at [31]–[35]). Gageler and Keane JJ then agreed to extend the usual 35 day period for challenging migration decisions under s 468A of the Migration Act on the basis that for much of the time the plaintiff was unaware of the 20 March decision, and had filed within 35 days of the Tribunal’s decision that it lacked jurisdiction: see at [36]–[42].

Nettle J agreed that the decision to cancel the plaintiff’s visa should be quashed, and agreed with Gageler and Keane JJ on the operation of s 486A, and consequently agreed with their orders. His Honour, however, did not agree that the University’s failure caused the jurisdictional error (see at [45]–[48]), and held instead that the delegate’s failure to make inquiries into the critical fact of the plaintiff’s enrolment status after difficulties in communicating with the plaintiff, which could easily have been done by telephoning the University, meant that the jurisdictional error here was a constructive failure to exercise jurisdiction: see at [49]–[51].

High Court Judgment [2015] HCA 51  17 December 2015
Result Application time extended; writs of certiorari and prohibition issued
High Court Documents Wei v MIBP
Full Court Hearing [2015] HCATrans 291 12 November 2015
Directions Hearings [2015] HCATrans 207 20 August 2015
[2015] HCATrans 144  15 June 2015

[2015] HCATrans 103  11 May 2015

[2015] HCATrans 73 7 April 2015
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.