Australian Immigration Daily News

In this day and age, we have all become incredibly dependent on our desktop computers, tablets, phones and other digital devices, haven’t we? 

And we tend to treat the information that we get in digital form as correct, reliable and even infallible, don’t we? 

Well, a recent decision from the High Court – Wei v Minister for Immigration and Border Protection (2015) HCA 51 (17 December 2015) provides a reminder of the accuracy of that old saying from the early days of computers: “Garbage in – garbage out”.  

Yep, it is so easy to forget that there is a human element to digital information.  If data is not correctly recorded on digital platforms – for example, the electronic recordkeeping system relating to the enrolment of foreign students in Australian education courses, “PRISMS” (the “Provider Registration and International Management System”) – then it is an unreliable basis for decision-making. 

That includes decision-making by the Department in relation to the cancellation of student visas! 

The circumstances in the Wei case were that the student (Wei) had originally travelled to Australia on a student visa when he was 15 years old. After finishing high school, he went on to enroll in a “Foundation Program” at Macquarie University.  He was granted a Higher Education student visa by the Department for his studies in this course.  The course was scheduled to run during the period from 24 June 2013 – 13 June 2014. 

Unfortunately for Mr Wei, the university apparently failed to “upload” information concerning his confirmation of enrolment on to PRISMS.  The university had a statutory duty to record this information on PRISMS under the Education Services for Overseas Students Act 2000 (Cth). 

Based on their review of the PRISMS database, officers of the Department concluded – incorrectly – that Mr Wei was not in fact enrolled in a registered course. The Department sent Mr Wei a letter by registered post in February 2014 notifying him that the Department intended to consider cancelling his student visa because, according to PRISMS, he had not been enrolled in a course since July 2013. However, this letter was returned to the Department “unclaimed”.  The Department sent a second letter to Mr Wei to an address that it had obtained for him from the university, but this letter was also unclaimed.  And an email with the letter notifying  Mr Wei of the proposed cancellation of the student visa also did not reach Mr Wei, because an officer of the Department failed to correctly type Mr Wei’s email address. 

The result was that Mr Wei never received actual notice from the Department that it was considering the cancellation of his student visa.  He therefore did not have the opportunity to inform the Department that there had been an error by the university in failing to record on PRISMS that he was in fact enrolled in the Foundation Program. 

Based on the information that was available on PRISMS, the Department then proceeded  (in March 2014) to make a decision to cancel Mr Wei’s student visa.  Notice of this decision was sent to Mr Wei by registered post, but like the previous correspondence to him from the Department, it was returned unclaimed. 

In the event, Mr Wei did not come to learn about the cancellation of his student visa until 2 October 2014. Although he sought review of the decision before the MRT the very next day, the Tribunal ultimately decided that it did not have jurisdiction, because the review application was untimely. 

Sounds a bit like a situation out of Kafka, doesn’t it? A student loses his visa due to a finding by the Department that he was not enrolled in a course, when in fact he was enrolled, and the Department’s finding was based on a failure by the student’s university to record his enrolment on PRISMS – something over which the student had no control.  And to compound matters, the student lost his right to review in the MRT because the Department’s decision to cancel his visa didn’t come to his attention until the period for seeking review had expired! 

Fortunately for Mr Wei, the High Court saw fit to intervene in his case and to overturn the cancellation of his visa. 

Two judges of the Court – Judges Gageler and Keane – found that the cancellation decision was infected by jurisdictional error because it had resulted from Macquarie University’s failure to comply with its statutory duty to correctly record Mr Wei’s enrolment in the Foundation Course on PRISMS.  In other words, Judges Gageler and Keane held that, as a result of the University’s failure to comply with its obligation to record the enrolment on PRISMS, the Department’s exercise of the power to cancel Mr Wei’s student visa was invalid. 

To summarise the decision of the “plurality” (2 of the 3 judges who heard the case) of the High Court:  when a student is actually enrolled in a course, but the course provider fails to record the fact of the enrolment on PRISMS, a decision by the Department to cancel a student visa will be fatally flawed, and will be reversed on the basis of “jurisdictional error”. 

This seems to be a totally fair and just result, and to a certain extent, a “no-brainer” that would not require the engagement of the high level legal acumen of the High Court, doesn’t it? And doesn’t it seem that the cancellation of the student visa was simply a “mistake” on the part of the Department that could and should have been cured without the need for proceedings in the High Court? Shouldn’t the Department have simply “conceded error” and revoked or rescinded the cancellation decision once evidence was brought to its attention that Mr Wei was in fact still enrolled in a course at the relevant time? 

The third judge of the High Court who heard the Wei  case – Judge Nettle – concurred with Judges Gageler and Keane that the cancellation of the student visa should be overturned.  However, Judge Nettle relied on a different analysis for reaching this result. 

It was Judge Nettle’s view that a simple failure by a course provider to accurately record information concerning a student’s enrolment onto PRISMS does not necessarily infect a subsequent decision by the Department with jurisdictional error.  Judge Nettle considered that the fact that the Department had relied on erroneous information on PRISMS (to the effect that Mr Wei was not enrolled in a course, when in fact he was) did not render the Department’s decision “ultra vires”  or “beyond power”. 

Rather, it was Judge Nettle’s conclusion that the decision to cancel the student visa was infected by jurisdictional error due to the Department’s failure to make inquiries before going forward with the cancellation. Judge Nettle held that the failure to make the inquiries was so unreasonable in the circumstances of the case as to constitute jurisdictional error. 

Judge Nettle found that because the letters that had been sent by the Department attempting to inform Mr Wei of the proposed cancellation of his student visa had been returned “unclaimed”,  the Department’s officer would have known that Mr Wei would not have the opportunity to make submissions to the Department to demonstrate why his visa should not be cancelled (or to show that the purported ground for cancellation of the visa did not exist). Therefore, it was Judge Nettle’s opinion that it should have been apparent to the Department’s officers that it was more than usually important to be as certain as possible that the ground for the proposed cancellation did in fact exist. 

Judge Nettle found that it would have been a simple and easy matter for the Department’s delegate to confirm the accuracy of the information shown on PRISMS simply by “picking up the telephone and requesting the University to check” whether Mr Wei’s enrolment status as shown on PRISMS was in fact correct. 

Judge Nettle determined that the Department’s failure to make this obvious inquiry was so legally unreasonable that it amounted to jurisdictional error, and thus warranted the reversal of the cancellation decision. 

So, the moral of this story is very clear: If the Department cancels a student visa on the basis of a review of PRISMS which shows that a student is not enrolled in a course, but the course provider has failed to correctly record on PRISMS that the student is in fact enrolled, then the cancellation can be challenged (on the analysis of Judges Gageler and Keane).  Likewise, if the Department cancels a student visa based on a review of PRISMS without bothering to confirm with the course provider that the information on PRISMS is in fact correct,  the cancellation decision is likewise flawed and vulnerable (on the view of Judge Nettle).

Or to put it even more succinctly: just as people "cannot live on bread alone", the Department cannot rely on PRISMS alone as the sole basis to support the cancellation of a student visa!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837