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

HIGH COURT OF AUSTRALIA

GAGELER, KEANE AND NETTLE JJ

WEI WEI PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION DEFENDANT

Wei v Minister for Immigration and Border Protection [2015] HCA 51 17 December 2015 S9/2015

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.

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)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.