the appeal
29 On 25 March 2010, Mr Kabir filed a notice of appeal which contained one ground of appeal. This ground of appeal is as follows:
The Federal Magistrate erred in finding that although the Migration Review Tribunal committed jurisdictional error in asking the wrong question of failing to have regard to a relevant consideration with respect to the period of study undertaken by the Appellant in relation to the Diploma of Business, the Appellant could not have established before the Tribunal that he had the required 5 years of study in English undertaken in Australia pursuant to cl 5A504(1)(e)(ii), Schedule 5A to the Migration Regulations 1994 (Cth) (Original emphasis.)
30 At the commencement of the hearing of the appeal, Mr Kabir, who was self‑represented, applied for an adjournment of the hearing of the appeal.
31 Mr Kabir did not rely on any evidence in support of his application for an adjournment. However, from the Bar Table, Mr Kabir advised me that he had been assisted by a "friend" who was not available and would not be available to assist Mr Kabir in preparing for this case for a number of weeks.
32 I refused the adjournment on the basis that Mr Kabir had had sufficient time to prepare for the hearing. Mr Kabir advanced no submissions in support of his appeal.
33 However, Mr Macliver, counsel for the Minister, brought the Court's attention to an authority of the Full Court which was relevant to Mr Kabir's contention that the Federal Magistrate had fallen into error in the exercise of his discretion in withholding relief. This was the case of Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 (Lee).
34 In Lee, the Full Court considered an appeal from the decision of a Federal Magistrate in which the Federal Magistrate had declined judicial review relief on a discretionary basis. Mr Lee applied for a business visa. Mr Lee's application was refused by a delegate of the Minister. The Tribunal affirmed the decision of the delegate. Mr Lee then brought the judicial review proceeding before the Federal Magistrate.
35 Before the Tribunal, Mr Lee had nominated an authorised recipient and the Tribunal had failed to give an invitation to comment on information to Mr Lee's authorised recipient. Instead the invitation was addressed to Mr Lee. No response was made to the invitation and the Tribunal proceeded to make its decision without first inviting Mr Lee to appear at a hearing.
36 The Federal Magistrate found that the Tribunal had failed to give Mr Lee's authorised recipient an invitation to comment on information under s 359A of the Migration Act 1958 (Cth) (the Act) and, so, had failed to comply with s 379G of the Act. Accordingly, said the Federal Magistrate, the Tribunal was not exempted from the obligation in s 360(1) of the Act from inviting Mr Lee to a hearing. It followed, said the Federal Magistrate, that by deciding the review without inviting Mr Lee to a hearing, the Tribunal had fallen into jurisdictional error.
37 The Federal Magistrate withheld relief on discretionary grounds because, before delivery of its decision on Mr Lee's application for review, the Tribunal had earlier made a decision affirming a delegate's decision to refuse the sponsorship application by Mr Lee's proposed employer, Konel. The Federal Magistrate withheld relief on the grounds that in those circumstances, it would be futile to require a further hearing of Mr Lee's application for review because Mr Lee did not have an approved standard business sponsor, an essential requirement for the grant of a visa.
38 The Full Court (Moore, Besanko and Buchanan JJ) allowed the appeal, finding that the Federal Magistrate had erred in the exercise of his discretion to refuse relief on the grounds of futility.
39 At [49], Besanko J observed:
I turn now to consider whether futility was made out in this case. A question arises as to the point in time at which the question of futility is to be assessed. As far as administrative decisions are concerned, there is little authority on the point. There is reference to a "backward-looking test" which requires futility to be assessed at the time the decision-maker made its decision. There is reference to a "forward-looking test" which requires futility to be assessed at a time in the future when the reconsideration or rehearing takes place. In many cases, it will not matter which test is applied because the same result will follow.
40 Besanko J then referred to the case of Giretti v Federal Commissioner of Taxation (1996) 70 FCR 151 (Giretti). The Full Court in that case was comprised of Jenkinson, Lindgren and Merkel JJ. There was discussion, in that case, as to whether it was appropriate to use a forward-looking test or a backward-looking test in determining whether to withhold judicial review relief on the basis that the granting of relief would be futile, where there had been a denial of procedural fairness.
41 Besanko J observed that in Giretti, Lindgren J (with whom Jenkinson J agreed) had favoured a backward‑looking test and set out the following observations made by Lindgren J at [165]:
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.
42 Besanko J then went on to observe at [51]-[53]:
Merkel J favoured a forward-looking test and, in my respectful opinion, his reasons for doing so are highly persuasive, as are the points made by Bingham LJ in R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 352 (see also Bingham T, "Should Public Law Remedies be Discretionary?" [1991] Public Law 64 at 72-73). In my opinion, it is appropriate to apply a forward-looking test at least in the particular statutory context under consideration in this case. Through no fault of their own, the appellants have been deprived of procedural fairness (as prescribed by the Act) and the requirement that the first appellant be nominated by an approved standard business sponsor is a requirement which must be satisfied at the time of decision.
I acknowledge that if a backward-looking test is applied it is appropriate to make a finding of futility and to refuse relief. At the time the Tribunal member made his decision on the appellants' application for review, namely, 7 January 2004, there was no approved standard business sponsor. Konel's sponsorship application had been refused by the same Tribunal member about two months before that date. Konel had not challenged that decision and, as at 7 January 2004, there was no suggestion that another applicant for approval as a standard business sponsor had or would come forward.
However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that, whilst a rehearing may prove futile, the Court cannot be certain that that will be the case. I put to one side for the moment the appellants' challenge to the Tribunal's decision in relation to Konel's sponsorship application which, in any event, for reasons I will give, must be rejected. The Court cannot be certain that a rehearing will be futile because (and I understood the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants' application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case.
43 Buchanan J observed at [69]:
I also agree that it cannot be concluded (nor should it have been at the time of the decision of the Federal Magistrates Court refusing relief) that it would be futile to grant relief in this case. Because assessment of the first appellant's visa application must be made in the light of the circumstances as they exist at the time of the (valid) decision of the MRT it cannot be said that the grant of relief could not possibly make a difference to the MRT's eventual deliberations - see Stead v State Government Insurance Commission (1986) 161 CLR 141; see also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Nais v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367; 223 ALR 171.
44 The question in this case, therefore, is whether the Federal Magistrate erred in the exercise of his discretion to withhold relief on the grounds that he used a backward-looking approach to the assessment of the question of futility.
45 In the case of Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala), the High Court made it clear that the grant of relief under the constitutional writs is a matter of discretion.
46 In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [59] (SZBYR), Kirby J made the following observations about Aala:
The result of Aala is that, whilst establishment of the preconditions for this form of relief will ordinarily entitle a party to the relief, there will always remain a residual discretion to be exercised judicially. Some of the considerations relevant to that decision have been identified. However, in the nature of discretionary remedies, much will depend on the facts and circumstances of the particular case. (Emphasis added.)
47 In my view, whether, a forward-looking approach or a backward-looking approach is adopted in any particular case, will depend on the facts and circumstances of each case. That it is permissible, in an appropriate case, to have regard to the effect of the jurisdictional error on the impugned decision (that is, a backward-looking approach), is illustrated by the approach of the High Court in Aala. The jurisdictional error in Aala was a denial of procedural fairness.
48 At [4]-[5] in Aala, Gleeson CJ observed:
It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent mis-statement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal. (Footnote omitted.)
49 Further, McHugh J (who was in dissent in the result) observed at [104]:
Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court…to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome". (Emphasis added. Footnotes omitted. See, also, the observations of Gaudron and Gummow JJ at [57]-[58], Kirby J at [130]-[133] and Callinan J at [211].)
50 As is evident from the observations of Besanko J in Lee, referred to at [42] above, his Honour considered that the application of a forward-looking approach was appropriate in the statutory context of that case.
51 In that case, as in this case, the question of whether the relevant condition for the grant of a visa had been satisfied, had to be assessed by reference to the date of the decision. However, in that case the Tribunal's jurisdictional error had resulted in Mr Lee being deprived of an opportunity of a hearing under s 360 of the Act and, concomitantly, of an opportunity to put evidence and make submissions to the Tribunal at a hearing. There was, in other words, a serious denial of procedural fairness.
52 However, 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].)
53 In those circumstances, it was, in my view, open to the Federal Magistrate in the exercise of his discretion, to have regard to the effect of the jurisdictional error on the Tribunal's decision by reference to the available evidence before the Tribunal. The Federal Magistrate did not fall into error in doing so.
54 In any event, it cannot be said that the Federal Magistrate only applied a backward‑looking approach. The Federal Magistrate received further evidence in support of Mr Kabir's claim which was not before the Tribunal. At [65] of his reasons, the Federal Magistrate considered the totality of the evidence and concluded:
[T]here is no other period during which there is evidence of study by Mr Kabir which would be able to be considered by the Tribunal. (Emphasis added.)
55 Accordingly, Mr Kabir has failed to demonstrate that the Federal Magistrate erred in the exercise of his discretion to withhold relief.
56 It follows that the appeal is dismissed.
57 The Court expresses its thanks to Mr Macliver for the assistance which he provided to the Court in this appeal.
I certify that the preceding fifty‑seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.