Unanimous High Court finds two routes to the same outcome on jurisdictional error

Wei v Minister for Immigration and Border Protection [2015] HCA 51

The High Court of Australia has recently handed down a unanimous judgment quashing a decision of the Minister for Immigration and Border Protection to cancel an international student visa, on the basis that the decision was reached by a process of fact-finding that was tainted by a third party’s failure to perform its imperative statutory duty. The decision was thus tainted by jurisdictional error.

Facts

The plaintiff, a Chinese national, completed his secondary education in Australia. The plaintiff subsequently enrolled in and completed a tertiary program at Macquarie University, whilst living in Australia on a student visa. The plaintiff was enrolled in the relevant University course between June 2013 and June 2014.

Despite this enrolment, in error, the University did not issue a confirmation of enrolment using the electronic database known as “PRISMS”. That system operates as the mechanism by which Australian educational institutions provide specific information about the holder of a student visa to the Secretary of the Department of Education and Training, as required by section 19 of the Educational Services for Overseas Students Act 2000 (Cth) (ESOS Act). Ordinarily, that information is communicated to the Department of Immigration and Border Protection.

In this case, the University’s failure to record the plaintiff’s enrolment in PRISMS meant that the Department of Immigration and Border Protection was not aware that the plaintiff was, in fact, enrolled in a registered tertiary education course. Accordingly, it appeared to the delegate of the Minister for Immigration and Border Protection (the delegate) that there were apparent grounds for cancelling the plaintiff’s student visa due to non-enrolment.

The delegate attempted to notify the plaintiff of these apparent grounds for cancellation (as required by section 119 of the Migration Act 1958 (Cth)) by contacting him at his last known address, but all mail was returned unclaimed. The delegate also made a number of enquiries at the University about the plaintiff’s enrolment status and contact address, but did not ask whether or not the plaintiff was enrolled. The delegate then cancelled the plaintiff’s visa.

Decision and commentary

All three Justices of the High Court agreed that the delegate’s decision was affected by jurisdictional error, and ordered that the decision be quashed and that the Minister be prevented from acting on or giving effect to the decision.

Justices Gageler and Keane issued a joint judgement. Their Honours noted that a jurisdictional error arises where there has been a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by a statute. Importantly, there is no reason why jurisdictional error should be confined to cases of error or fault on the part of the decision-maker himself or herself.

Secondly, their Honours questioned whether the University’s failure to comply with the requirements of the ESOS Act (by uploading correct information to PRISMS in respect of the plaintiff) amounted to a material breach. An integral part of this analysis is whether the statutory condition in question is one that is mandatory or directory in nature. Consistently with Project Blue Sky, their Honours noted that it is now well-accepted that such analysis is conclusory in nature, but also noted that a court must also consider both the justice and convenience of holding that a breach of that statutory duty or condition results in a finding of jurisdictional error.

In this case, their Honours noted that “[the] injustice to the holder of the student visa of the power to cancel that visa being exercised on the basis of incorrect information downloaded from PRISMS is manifest. … [Such] injustice is not necessarily mitigated by either the requirement to give notice of the decision or the availability of merits review.” Consequently, the University’s failure to comply with its statutory duty meant that the decision of the delegate was made without jurisdiction.

Justice Nettle agreed that the delegate’s decision was affected by jurisdictional error, but adopted a different approach. In His Honour’s view, the jurisdictional error did not arise from the failure of the University to comply with its statutory duty. Instead, the delegate had failed to make appropriate inquiries and, as such, had constructively failed to exercise jurisdiction.

In this context, Justice Nettle adopted the approach taken in SZIAI and Prasad, where it was held that, where it is clear that the decision-maker has failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained from readily-available material, the decision may be so unreasonable as to be beyond jurisdiction, or may reflect a constructive failure to exercise one’s jurisdiction. In this case, the delegate was put on inquiry by the fact that all mail sent to the plaintiff was returned unclaimed, such that the delegate knew that (1) the plaintiff was unaware that the Minister proposed to cancel the visa, and therefore (2) the plaintiff would not have the opportunity to demonstrate that there were no valid grounds for cancellation, such opportunity being required by sections 119 to 121 of the Migration Act. Thus, it should have been apparent to the delegate that it “was more than usually important for the delegate to be as certain as reasonably possible that the proposed ground of cancellation existed”. 

Each judge agreed to extend the period for filing a challenge to the decision under section 468A of the Migration Act, as the plaintiff had not been aware of the decision.

The full text of the decision can be found here.

Rebecca Williams is a Solicitor at King & Wood Mallesons