High Court Overturns Cancellation Of Student Visa
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 24 June 2013 – 13 June 2014.
Unfortunately for Mr Wei, the university apparently failed to “upload” information concerning his confirmation of enrolment 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 two letters by registered post 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, both these letter were returned to the Department “unclaimed”.
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.
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 Tribunal the very next day, the Tribunal ultimately decided that it did not have jurisdiction, because the review application was untimely.
Fortunately for Mr Wei, the High Court saw it 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.
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.
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!