Editor's Blog

The telephone contact was the one opportunity to fix the problem given that all the written communications to the visa-holder were returned unclaimed.

Soon after the call and further failure in written communications, the 22-year old Chinese student had his visa cancelled. He then had to turn to the High Court of Australia to quash the decision of the case-officer.

In 2014, after both DIBPs letters to the Macquarie University’s Foundation Program student, Wei Wei, were returned unclaimed, the case-officer assessing the matter telephoned the student to make enquiries about his current address.

The case-officer was intending to cancel student Wei Wei’s visa as DIBP could not locate evidence of his enrolment in the enrolment database, PRISM. It was later discovered the Macquarie University had wrongly entered Wei Wei’s enrolment details. The case officer had called the university to check on the student’s address, but never thought about checking on his enrolment status, at the same time.

Wei Wei responded to the case-officer’s call abruptly, saying, “I’m not telling you that” and immediately hung up. He explained to the court that he did not believe the call was from the Department.

The case-officer then sent an email to Wei Wei, but mistyped the email address. Wei Wei never received any notifications from the DIBP including the cancellation decision. He only discovered the cancellation several months later - well after the 35 day time limit to seek a review by the Migration Review Tribunal.

It was an easy decision for the High Court, whose 3 judges unanimously decided that ‘jurisdictional error’ had occurred after hearing submissions from Senior Counsel S B Lloyd who was instructed by Ren Zhou Lawyers. DIBP was ordered to pay costs.

In his decision Nettle JJ noted:

“Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff's enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate's failure to make that inquiry and the delegate's determination to cancel the visa, I consider this to be a case in which the delegate's failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.”