Consideration
45 It may be appropriate to exercise the discretion to refuse relief where granting relief would be futile; that is, no useful result could ensue: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [28]. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala), Gaudron and Gummow JJ noted at [56] that:
Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said [at 400]:
"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
46 In assessing whether there is utility to a grant of relief a question arises as to whether the court should adopt a "backward" or "forward"-looking approach. A backward-looking test requires futility to be assessed at the time the decision-maker made its decision while a forward-looking test requires futility to be assessed at a time in the future when any reconsideration or rehearing takes place. In many cases the test applied will make no difference to the result: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 at [49] (Lee) (Besanko J).
47 In Giretti v Federal Commissioner of Taxation (1996) 70 FCR 151 at 165, cited with approval in Lee, Lindgren J favoured a backward-looking approach, but highlighted that the overarching question is whether there was or is no possibility of a different result:
No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result (cf the section heading in Woolf and Jowell, De Smith's Judicial Review of Administrative Action (5th ed, 1995), p 498, "Where the defect of natural justice has made no difference to the result; where to require fairness or natural justice would be futile; where no prejudice has been caused to the applicant" and discussion following). At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been.
48 The present case has some similarities with Kabir v Minister for Immigration and Citizenship [2010] FCA 1164 at [52], where Siopis J said:
…in this case, the jurisdictional error did not comprise a denial of procedural fairness by the Tribunal. The jurisdictional error comprised a misconstruction of a statutory provision. Mr Kabir had a hearing before the Tribunal and had the opportunity to put all the evidence upon which he wished to rely, to the Tribunal. The circumstances were very different to those in the Lee case. In this case, the Federal Magistrate was able to assess the effect of the jurisdictional error on the impugned decision, and conclude that even if there had been no jurisdictional error, the Tribunal would, on a proper construction of the Regulations, have been obliged to refuse the review application. (See, Aala, per Gaudron and Gummow JJ at [57]-[58].)
49 I am not satisfied that in the circumstances of the present case, adopting either a forward-looking or backward-looking approach, there is no possibility of a different result such that a grant of relief has no utility.
50 I say this, first, because I do not accept the Minister's contention that the "national interest" criterion in cl 866.226 is subsumed within the s 36(1C)(b) criterion which the Tribunal is prevented from considering. The power to refuse a visa on the basis of the "national interest" criterion in cl 866.226 is broader than the power to do so under s 36(1C)(b). In theory it is possible for the Tribunal to decide that it is not in the national interest to grant Mr Hamidy a protection visa for reasons which fall outside s 36(1C).
51 On the facts of the present case I am also of the view that it may be open for the Tribunal to conclude that it is not in the national interest to grant Mr Hamidy a protection visa, for reasons which do not fall within s 36(1C)(b). One example of this is the material which points to Mr Hamidy associating with an outlaw motorcycle gang and also associating with a person who has been involved in criminal conduct, described in the Minister's reasons as "criminal associations". If in deciding Mr Hamidy's application for review the Tribunal accepts that Mr Hamidy has "criminal associations" it may be open for it to conclude that the grant of a visa is therefore not in the "national interest". In this regard it is noteworthy that the asserted "criminal associations" were significant to the Minister's decision that it was in the national interest to cancel Mr Hamidy's refugee visa in the first place. Any such associations, which it should be noted are not the subject of any criminal convictions, do not fall within the terms of s 36(1C)(b) and in my view there can be no prohibition on the Tribunal considering them as part of the review before it.
52 Second, I do not consider that Daher requires the outcome for which the Minister contends. Daher is authority for the proposition that the Act notionally divides decisions in which the decision-maker refuses to grant a protection visa into two distinct types, being (putting to one side irrelevant exceptions): (a) those relying on ss 5H(2), 36(1B), (1C) or (2C)(a) or (b), or under s 501(1) of the Act; and (b) those relying on other parts of the Act. Sections 411(1)(c) and 412 grant power to the Tribunal to review a decision to refuse to grant a protection visa as a Part 7-reviewable decision, except where the decision is made in reliance on ss 5H(2), 36(1B), (1C) or (2C)(a) or (b).
53 For the purposes of the present case, Daher means that the Tribunal is prevented from adjudicating s 36(1C)(b) "issues". The issue that arises under s 36(1C)(b) is whether the Minister considers, on reasonable grounds, that the visa applicant is a danger to the Australian community, having been convicted by final judgment of a particularly serious crime. It is another thing to suggest that a factual matter which is relevant to such an issue cannot be considered by the Tribunal where it is also relevant to the "national interest" criterion. I do not accept that the Tribunal will be precluded from considering factual matters which are relevant to its review of a Part 7-reviewable decision under one provision just because those factual matters overlap with matters that may be relevant to consideration under another provision that is not before the Tribunal. I readily accept that for the purposes of the Tribunal's review of a Part 7-reviewable decision it cannot rely on those provisions excluded by the grant of power, but that does not mean it is precluded from considering relevant factual matters.
54 For these reasons I am not persuaded that because in deciding Mr Hamidy's review application the Tribunal cannot adjudicate s 36(1C)(b), there is no utility in quashing the Minister's visa cancellation decision. In reviewing a Part 7-reviewable decision the Tribunal may exercise all the powers and discretions of the original decision-maker under s 65 of the Act: s 415(1). In Shi (at [135]), Kiefel J (as her Honour then was) emphasised that the Tribunal stands in the shoes of the original decision-maker:
In Strange-Muir v Corrective Services Commission (NSW) McHugh JA held that there was a presumption, which operated as a rule, that an appeal to an administrative tribunal against an administrative decision would not usually involve a grant of jurisdiction to make a fresh or original decision. The respondent relied upon this decision as supporting a more limited role for the Tribunal, one concerned with ascertaining whether the decision under review was attended with error. As McHugh JA acknowledged, however, any such presumption gives way to contrary statutory indications. There can be little room for its operation where, as here, the Tribunal is expressly provided with the powers of the original decision-maker and its decision, to vary or substitute the original decision, is taken to be that of the original decision-maker.
(Emphasis added, citations omitted.)
55 As Direction 75 does not apply to the Tribunal, it is not required to consider protection obligations first, and since consideration of the "national interest" may well include criteria that are not related to protection obligations it will be open to the Tribunal to affirm the delegate's decision to refuse to grant a visa on non-protection grounds. If that occurs, any non-refoulement obligations which Australia owes to Mr Hamidy will not have been considered by the Tribunal. It is not necessary or appropriate for this court to speculate as to what these non-protection grounds might be or as to the future course of decision-making: DOB18 v Minister for Home Affairs [2018] FCA 1523 (DOB18) at [35] (Griffiths J).
56 The Minister argues that in deciding whether to grant relief the Court should take into account the fact that the delegate has found that Mr Hamidy is not owed protection obligations. That approach is neither a backwards-looking approach focused on the date of the Minister's decision, nor a forward-looking approach focused on a notional date in the future when the Minister makes a fresh decision. Instead it focuses on the intermediate date of 30 August 2018 when the delegate refused to grant a protection visa. Even so, I accept that Kabir does not suggest a rigid dichotomy between a forward-looking or backward looking analysis, and the choice depends on the facts and circumstances of the case.
57 I am not persuaded that in the circumstances of the present case it is appropriate to decline relief on the basis that the delegate has decided that Mr Hamidy is not owed protection obligations when there is an application for review to the Tribunal on foot, which will decide that question de novo. Nor do I accept the Minister's submission that "the assumption made by the Minister…has been proved correct".
58 Applying a backwards-looking approach by looking back to the date of the Minister's decision, it cannot be said that no other outcome was possible if the Minister had not misunderstood that Mr Hamidy's protection claims would not necessarily be considered as part of any protection visa application he made. The Minister concedes that his decision was affected by the sequencing misunderstanding identified in BCR16, and Mr Hamidy is entitled to relief. I have no difficulty in accepting that the thrust of the Minister's reasons for refusal was that the national interest outweighed the other factors considered. However, because of his sequencing misunderstanding the Minister did not consider whether Mr Hamidy might suffer significant harm if he were returned to Iraq which might have tipped the balance in the exercise of the Minister's discretion as to whether or not to cancel his visa.
59 Applying a forward-looking approach by looking forward to the notional date upon which the Minister might again consider cancelling Mr Hamidy's refugee visa, it is also not possible to say that the Minister will inevitably reach the same decision. It is plain enough, having regard to Mr Hamidy's substantial criminal record and history of criminal offending, that it will be open to the Minister to conclude that his visa should be cancelled, but that is not inevitable. It cannot be excluded that, if the Minister again considers cancellation of Mr Hamidy's visa under s 501(3), he may provide further submissions or evidence that persuades the Minister to exercise his discretion and reach a different decision, or by that time there may have been some material change in Mr Hamidy's circumstances.
60 Ground 1 of the application for review is made out and it is appropriate to quash the Minister's decision.