Wei v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judge: Gageler,Keane JJ.,Nettle J.
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] HCA 51
• Docket Number: S9/2015
• Court: High Court
• Date: 17 December 2015

[2015] HCA 51

HIGH COURT OF AUSTRALIA

Gageler, Keane and Nettle JJ

S9/2015

Wei Wei

Plaintiff

and

Minister for Immigration and Border Protection

Defendant

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)

Education Services for Overseas Students Act 2000 (Cth), s 19.

Migration Act 1958 (Cth), ss 116(1)(b), 119(1), 486A.

Wei v Minister for Immigration and Border Protection

Migration — Visa cancellation — Migration Act 1958 (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 Act 1958 (Cth), s 486A(1) — Operation of s 486A.

Words and phrases — ‘extension of time’, ‘imperative duty’, ‘jurisdictional error’.

Constitution, s 75(v).

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.

Gageler and Keane JJ.

Introduction

1 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.

2 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 Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).

3 Having been made, or purportedly made, under s 116(1)(b), the decision of the delegate is either a ‘privative clause decision’ or a ‘purported privative clause decision’, and is also a ‘migration decision’, within the meaning of the Migration Act1. The effect of s 474 is that neither prohibition nor certiorari can issue in relation to the decision unless the decision can be shown to have been affected by ‘jurisdictional error’ 2. The effect of s 486A is that the application for prohibition and certiorari was required to be made within a specified period of the decision unless this Court makes an order under that section extending that period.

4 The timing of the filing of the application for an order to show cause means that the operation of s 486A will need to be addressed. The operation of s 486A is most conveniently addressed after consideration of the merits of the plaintiff's argument that the decision was affected by jurisdictional error.

5 The merits of that argument are most conveniently addressed after reference first to the statutory scheme and then to the agreed facts.

Statutory scheme

6 The Migration Act and the ESOS Act form an integrated statutory scheme. The relevant operation of that scheme cannot adequately be understood by reference solely to the Migration Act and the ESOS Act. It is necessary also to refer to the Migration Regulations 1994 (Cth) and the Education Services for Overseas Students Regulations 2001 (Cth) (‘the ESOS Regulations’), made under those Acts.

7 The principal objects of the ESOS Act are expressed to include complementing Australia's migration laws by ensuring that institutions providing courses of education or training to holders of student visas collect and report information relevant to the administration of the law relating to ‘student visas’ 3. The expression ‘student visa’, for the purposes of the ESOS Act, has the meaning given in the ESOS Regulations 4. The meaning given in the ESOS Regulations, subject to immaterial exceptions, brings within the expression as used in the ESOS Act specified subclasses of student visa described in the Migration Regulations 5.

8 The ESOS Act requires institutions which provide courses of education or training to holders of student visas ordinarily to be registered 6. The Migration Regulations make it a standard condition of each of the subclasses of student visa specified in the ESOS Regulations that ‘the holder is enrolled in a registered course’ 7. The expression ‘registered course’ is defined relevantly to mean a course of education or training provided by an institution registered under the ESOS Act8.

9 Section 19 of the ESOS Act relevantly requires each institution that is a registered provider to give to the Secretary of the Department of Education and Training specified information about each holder of a student visa who is

enrolled in a course of education or training provided by that registered provider 9. The required information relevantly includes information that is to be given within 14 days of enrolment which uniquely identifies the student and the course in which the student is enrolled 10. The information which is required to be so given concerning enrolment is referred to in the ESOS Regulations as ‘confirmation of enrolment’ 11.

10 The information which each registered provider is required to give to the Secretary under s 19 of the ESOS Act must be given in a form approved by the Secretary, which may be electronic 12. The Secretary approved for that purpose an electronic database which was developed by what is now the Department of Education and Training in association with what is now the Department of Immigration and Border Protection. The approved electronic database is known as the Provider Registration and International Student Management System (‘PRISMS’).

11 Non-compliance by a registered provider with the requirement of s 19 of the ESOS Act that it upload confirmation of enrolment onto PRISMS is a criminal offence of strict liability 13. Non-compliance by a registered provider with that requirement is also capable of resulting in suspension or cancellation of the provider's registration 14.

12 Section 175 of the ESOS Act permits the Secretary of the Department of Education and Training, for purposes which include ‘promoting compliance with the conditions of a particular student visa or visas, or of student visas generally’ and ‘facilitating the monitoring and control of immigration’, to give information obtained or received for the purposes of the Act to ‘an agency of the Commonwealth … that is responsible for or otherwise concerned with immigration’ 15. In practice, the Secretary of the Department of Education and

Training gives information received from registered providers under s 19 of the ESOS Act to officers of the Department of Immigration and Border Protection by allowing those officers access to PRISMS, from which the information can be downloaded.

13 Section 116(1)(b) of the Migration Act provides that, subject to immaterial exceptions, ‘the Minister may cancel a visa if he or she is satisfied that … its holder has not complied with a condition of the visa’.

14 If the Minister is considering cancelling a visa under s 116(1)(b), the Minister is required by s 119(1) of the Migration Act to notify the holder that there appear to be grounds for cancelling it, giving particulars of those grounds and of the information because of which the grounds appear to exist, and inviting the holder to show within a specified time that those grounds do not exist or there is a reason why the visa should not be cancelled. The visa holder is to be notified in one of the ways prescribed by regulation 16, which include notifying the holder in a document sent to the holder's last residential address known to the Minister or in a document transmitted by email to the last email address known to the Minister 17. That express requirement for notification and prescription of the means of notification ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule’ in relation to the matters with which they deal 18. If the visa holder does not respond to the invitation within the specified time, the Minister is permitted to make the decision about cancellation without taking any further action about the information 19.

15 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.

Facts

16 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...