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[2010] FCA 1164
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent's costs.
The Tribunal applied the wrong measure when counting Mr Kabir's study toward a five-year visa requirement. The Federal Magistrate recognised that error but decided a new Tribunal decision would make no difference because the evidence could not establish enough study. The Federal Court held that, given the nature of the error and Mr Kabir's opportunity to present evidence, the Federal Magistrate could assess futility in that way. The appeal was dismissed.
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2,171 words · generated 02/10/2026
Ahsanul Kabir, a citizen of Bangladesh, arrived in Australia on 17 June 2001 on a student visa. Over the following years, he enrolled in several courses at Perth educational institutions, with a mixed academic record. His studies included a Diploma of Business at the Perth Institute of Business and Technology (PIBT), hospitality courses at the Australian School of Tourism and Hotel Management (ASTHM), study at Notre Dame University, and a Bachelor of Business degree at Edith Cowan University ([1], [3]–[8]).
2 cited instruments linked from this judgment.
The immediate issue arose from his application for a further subclass 573 student visa. The applicable regulatory criterion required evidence of English-language proficiency and at least five years of study in English in specified countries, including Australia. The Tribunal found that Mr Kabir had not established five years of study in aggregate ([13]–[17]).
A central part of the Tribunal’s calculation concerned the Diploma of Business at PIBT. The Tribunal attributed one year of study to it, apparently using the course’s nominal duration. The Federal Magistrate considered that the relevant measure was instead the period Mr Kabir had actually spent studying to complete it. Mr Kabir began the diploma on 24 June 2001 and completed it two years and six months later. After deducting two months when he was overseas, the Federal Magistrate treated the relevant period as two years and four months ([18], [21]–[23]).
The Federal Magistrate therefore found that the Tribunal had misconstrued cl 5A504(1)(e)(ii) of the Migration Regulations 1994 (Cth), and that this was jurisdictional error. But the Federal Magistrate did not grant relief. On the evidence, the study period identified was four years and four months, leaving eight months still to be established. The Federal Magistrate concluded that the evidence could not establish that additional period, so a remittal would be futile ([26]–[27]).
Mr Kabir appealed, arguing that the Federal Magistrate had wrongly withheld relief. Siopis J dismissed the appeal. The judgment’s main focus was not whether the Tribunal had made the original error, which had been accepted below, but whether the Federal Magistrate could refuse relief because correcting that error would not change the outcome ([29], [44], [55]–[56]).
Siopis J treated the question as one about the court’s discretion to withhold constitutional-writ relief. The judgment notes that the grant of such relief is discretionary, referring to Re Refugee Review Tribunal; Ex parte Aala and to Kirby J’s discussion in SZBYR ([45]–[46]). The existence of jurisdictional error did not, by itself, resolve whether relief had to be granted.
The argument centred on two possible ways to assess futility. A backward-looking approach considers the circumstances and evidence at the time of the impugned decision. A forward-looking approach considers what might happen when the matter is reconsidered or reheard. Siopis J did not adopt either as a universal rule. Instead, the Court stated that the choice depends on the facts and circumstances of each case ([39]–[47]).
Lee was important because the Full Court there had allowed an appeal where relief had been withheld as futile. In Lee, the Tribunal failed to give an invitation to comment to an authorised recipient and did not invite the visa applicant to a hearing. The applicant had therefore been denied an opportunity to present evidence and submissions. The Full Court considered that a forward-looking approach was appropriate in that statutory context, because the relevant sponsorship criterion had to be satisfied at the time of the eventual decision and it could not be said that a rehearing would clearly be futile ([35]–[43], [50]–[51]).
Siopis J distinguished that situation from Mr Kabir’s. The Tribunal’s error was a misconstruction of a regulatory provision, not a denial of procedural fairness. Mr Kabir had a hearing and an opportunity to put forward the evidence on which he wished to rely ([52]). The Federal Magistrate could therefore assess the practical effect of the error against the evidence, rather than treating the matter as one where a procedural opportunity had been lost.
The evidence-based assessment mattered. The Federal Magistrate had identified four years and four months of study and found there was no evidence before the Tribunal establishing the further eight months required. Siopis J also noted that the Federal Magistrate considered the totality of the evidence, including further evidence not before the Tribunal ([27], [54]). That supported the conclusion that the Federal Magistrate had not relied only on a narrow snapshot of the Tribunal’s record.
The Court’s conclusion was limited to the circumstances before it. It held that it was open to the Federal Magistrate to consider the effect of the jurisdictional error in this way, and that Mr Kabir had not shown an error in the exercise of discretion ([53]–[56]). The judgment does not say that a backward-looking approach is always appropriate for misconstruction errors, or that a forward-looking approach is confined to procedural fairness cases. Its stated position is case-specific.
The judgment does not present itself as changing the law or establishing a single test that displaces earlier approaches. Rather, it addresses how the discretion to withhold relief for futility should be applied when competing approaches have appeared in prior decisions.
Before this judgment, the authorities discussed in it included Giretti, where members of the Full Court considered backward-looking and forward-looking approaches to futility in the context of a denial of procedural fairness. As recounted by Besanko J in Lee, Lindgren J favoured a backward-looking test as one available basis for denying relief, while Merkel J favoured a forward-looking approach. The judgment reproduces that discussion as part of its account of Lee ([40]–[42]).
Lee then applied a forward-looking approach in its particular statutory setting. There, the applicant had been denied a hearing, and the relevant sponsorship criterion had to be met at the time of a valid decision. The Full Court concluded that it was not clear a rehearing would be futile ([42]–[43]).
Kabir’s contribution is to state expressly that the choice between approaches depends on the facts and circumstances of the individual case ([47]). It accepts that a backward-looking approach can be permissible where the court is able to assess the effect of the jurisdictional error on the decision. It also distinguishes the situation from Lee because the error in Kabir did not deprive the applicant of procedural fairness ([52]–[53]).
The judgment’s treatment of Aala supports that qualified approach. Siopis J refers to Aala as illustrating the permissibility of considering the effect of an error on the impugned decision. The quoted discussion in Aala concerned a denial of procedural fairness and the difficulty of knowing whether the lost opportunity could have affected the result ([47]–[49]). Kabir therefore does not reduce the importance of procedural fairness or establish that any jurisdictional error can be treated as immaterial. It explains why the character of the error, and the opportunity the applicant had to present evidence, mattered in assessing futility here.
After Kabir, as far as this judgment itself establishes, the relevant position is a fact-sensitive one: the court considers the nature of the error, the procedural circumstances, and whether the evidence permits a reliable assessment of whether a different decision could result. This description is confined to the reasoning in the supplied judgment. It does not establish how later courts have applied or developed the case.
At [47], Siopis J states: “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.” In plain English, a court does not have to use one approach in every futility dispute. It must consider what kind of error occurred and what circumstances surround the decision.
At [52], the Court explains that Mr Kabir’s case was different from Lee. Mr Kabir had had a hearing and the opportunity to put forward evidence. The Tribunal’s error concerned the meaning of the regulation, rather than a failure to give him a procedural opportunity. In practical terms, the Federal Magistrate could evaluate the evidence that was available and ask whether correcting the interpretation could change the outcome.
At [53], Siopis J says it was “open” to the Federal Magistrate to consider the effect of the jurisdictional error by reference to the evidence before the Tribunal. “Open” here means the Federal Magistrate was permitted to take that approach in exercising the discretion; the Court was not saying that every court must do so in every similar case.
At [54], the Court adds that the Federal Magistrate had also considered the totality of the evidence, including material not before the Tribunal. This matters because it addresses whether the lower court’s futility analysis was restricted to the administrative record. The Federal Court considered that the further evidence had also been taken into account.
The conclusion at [55]–[56] is correspondingly narrow: Mr Kabir had not demonstrated an error in the Federal Magistrate’s exercise of discretion, so the appeal was dismissed.
Kabir is relevant to judicial-review cases where a court has found jurisdictional error but a respondent argues that relief should be withheld because reconsideration would make no practical difference. The judgment is particularly relevant where the error concerns the construction of a statutory or regulatory requirement, the applicant had an opportunity to present evidence, and the court considers it possible to assess whether a correct decision could have produced a different result ([52]–[54]).
It is also relevant where a party argues that the court must always use a forward-looking assessment because the administrative decision will be made again at a later date. Kabir rejects an automatic rule of that kind. It says the choice depends on the circumstances ([47]).
The case is less directly analogous where the asserted error deprived the applicant of a hearing or other procedural opportunity. Siopis J distinguished Lee on that basis, describing its facts as involving a serious denial of procedural fairness and noting the importance of an opportunity to put evidence and submissions to the Tribunal ([51]–[52]). That distinction does not itself determine what approach another court would take, but it is a feature of Kabir’s reasoning that may be material in comparing cases.
The judgment also illustrates that evidentiary sufficiency can be central to futility. The Federal Magistrate’s conclusion depended on the identified study periods and the absence of evidence for the further eight months said to be necessary ([27]). It does not establish a general rule about what counts as study under the regulation beyond the findings and reasoning described in the judgment.
The supplied judgment provides no information about decisions delivered after 29 October 2010 that applied, distinguished, followed, or questioned Kabir. No later treatment can therefore be reliably described from this text alone.
Within the judgment, the authorities that inform the reasoning are earlier ones. Lee is distinguished because it concerned a denial of procedural fairness and the loss of an opportunity to present evidence, whereas Kabir involved a misconstruction after an opportunity to be heard ([50]–[52]). Giretti is discussed through the Full Court’s consideration of the two approaches to futility in Lee ([40]–[42]). Aala is relied on as an illustration of the discretionary character of relief and of the possible relevance of the effect of an error ([45]–[49]).
The judgment also refers to SZBYR for the proposition that, although establishing the preconditions for relief will ordinarily support granting it, a residual discretion remains and relevant considerations depend on the particular facts ([46]). These cases show the framework in which Siopis J placed Kabir, but they do not establish how any subsequent court treated Kabir itself.
The judgment leaves open how a court should choose between backward-looking and forward-looking approaches in other factual settings. Its answer is that the choice depends on the circumstances, without supplying an exhaustive list of factors or a structured test for making that choice ([47]).
It also leaves open the appropriate approach where a case includes both a misconstruction error and a procedural-fairness failure. Kabir contrasts those categories, but it does not decide how to assess futility where both are present, or where the extent of the procedural loss is disputed.
The judgment does not define when a court can be sufficiently confident that an error could not have affected the outcome. It refers to Aala and to the evidentiary assessment in this case, but the decision turns on the particular study periods and the absence of evidence for the additional eight months ([27], [48]–[54]). It does not set a general evidentiary threshold for other cases.
Finally, the judgment does not address later developments in the relevant regulations or subsequent judicial treatment. Its analysis concerns the cited version of the Migration Regulations and the record described in the reasons. Any present-day application would need to be checked against the applicable legal sources and facts.
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REASONS FOR JUDGMENT 1 Mr Ahsanul Kabir is a citizen of Bangladesh. He first arrived in Australia on 17 June 2001 as the holder of a student visa. For the next six years or so, Mr Kabir enrolled as a student successively in a number of different educational institutions in Perth. He enjoyed what may be described as "mixed success" as a student. On 21 July 2008, his application for a further student visa was refused by a delegate of the first respondent, the Minister. The Migration Review Tribunal (the Tribunal) affirmed the delegate's decision, and the Federal Magistrates Court dismissed Mr Kabir's application for judicial review. Mr Kabir appeals to this Court against the Federal Magistrate's decision. 2 It is necessary to describe briefly Mr Kabir's involvement with Perth educational institutions during the six years preceding the decision of the delegate in July 2008 not to grant Mr Kabir's application for a student visa.
background 3 In June 2001, Mr Kabir initially commenced a one year Diploma of Business course at the Perth Institute of Business and Technology (PIBT). However, Mr Kabir did not complete the course until December 2003. During that period, Mr Kabir experienced a number of personal difficulties which caused him to return to Bangladesh on two occasions. 4 In 2004, Mr Kabir then enrolled in a course for a Certificate III in Hospitality (Commercial Cookery) at the Australian School of Tourism and Hotel Management (ASTHM). This course commenced on 9 February 2004 but Mr Kabir left in December 2004, and did not complete the course. 5 Mr Kabir also enrolled in the unit, Management I, at the PIBT in the first semester of 2004. He achieved a mark of zero per cent. 6 In 2005, Mr Kabir enrolled in a Bachelor of Business degree course at Notre Dame University, scheduled to commence on 21 February 2005 and run to 20 December 2007. However, Mr Kabir did not perform well academically and he left Notre Dame University towards the end of 2005. His enrolment was then terminated. 7 In 2006, Mr Kabir enrolled in an Advanced Diploma of Hospitality Management course at the ASTHM. His enrolment was cancelled after a few months because the managing director, having returned from overseas, objected to the presence of Mr Kabir as a student at ASTHM. There was also evidence before the Federal Magistrate, but not before the Tribunal, that Mr Kabir again enrolled in the unit, Management I, in the third semester of 2006 at PIBT. Mr Kabir again achieved no grade in respect of that enrolment. 8 In 2007, Mr Kabir enrolled in a three year Bachelor of Business degree course at Edith Cowan University which commenced on 16 February 2007 and was scheduled to end on 31 December 2009. However, on 1 March 2007, the delegate of the Minister cancelled Mr Kabir's subclass 573 student visa due to his poor academic record. The visa had been due to expire on 15 March 2008. As a result of the cancellation of his student visa, Mr Kabir did not enrol in the second semester at Edith Cowan University in 2007. 9 On 20 March 2007, Mr Kabir was granted a bridging visa. Mr Kabir applied to the Tribunal for a review of the decision to cancel his subclass 573 student visa. The Tribunal affirmed the delegate's decision to cancel the visa. Mr Kabir then made an application to the Federal Magistrates Court for judicial review of the Tribunal's decision. While this application for review was pending, Mr Kabir's subclass 573 student visa was reinstated as a consequence of a Full Court decision in Dia v Minister for Immigration and Citizenship [2007] FCAFC 199. The reinstatement of the visa took effect from 29 February 2008. 10 In February 2008, Mr Kabir re-enrolled at Edith Cowan University in a Bachelor of Business degree course scheduled to run from 25 February 2008 until 31 December 2010. On 14 March 2008, the day before his subclass 573 student visa was due to expire, Mr Kabir applied for a new subclass 573 student visa. 11 On 21 July 2008, a delegate of the Minister made a decision refusing to grant the subclass 573 student visa.
the tribunal 12 On 1 August 2008, Mr Kabir applied to the Tribunal to review the delegate's decision. On 22 October 2009, the Tribunal affirmed the decision of the delegate. 13 The Tribunal determined, relevantly, that Mr Kabir had not satisfied reg 573.223(2)(a)(i)(A) of the Migration Regulations 1994 (Cth) (the Regulations). This regulation requires a visa applicant to give evidence to the Minister in accordance with the requirements of Sch 5A of the Regulations, as to the visa applicant's English language proficiency. The relevant Sch 5A requirement, in this case, was cl 5A504(1)(e) which provided as follows: (e) the applicant has: (i) a level of English language proficiency that satisfies the applicant's proposed education provider; and (ii) at least 5 years of study in English undertaken in 1 or more of the following countries: (A) Australia. 14 The Tribunal found that Mr Kabir had not given evidence that he had undertaken five years of study in aggregate since arriving in Australia and, therefore, he did not satisfy the requirements of cl 5A504(1)(e)(ii). 15 The Tribunal found that Mr Kabir had given evidence to the Tribunal that he had completed a Diploma of Business at PIBT which had been a one year course. 16 The Tribunal went on to find that he had given evidence that he had completed: Approximately ten months of study at the ASTHM whilst studying for a Certificate III in Hospitality; ten months as part of a Bachelor of Business degree at Notre Dame University; "say three months" in a hospitality course at ASTHM; and "say one month" at Edith Cowan University in a Bachelor of Business degree. 17 Although the Tribunal did not expressly aggregate the various periods of study referred to above, it concluded as follows: From this evidence, it is apparent that the applicant has not undertaken five years of study in aggregate since arriving in Australia and therefore does not satisfy 5A504(1)(e). 18 It is apparent that, in assessing the aggregate period of study in respect of which Mr Kabir had provided evidence, the Tribunal attributed one year of study to the study undertaken by Mr Kabir at PIBT in respect of the Diploma of Business course.
the federal magistrates court 19 On 26 November 2009, Mr Kabir applied to the Federal Magistrates Court seeking judicial review of the Tribunal's decision. 20 The ground of review relied upon by Mr Kabir which is relevant to this appeal, complained that the Tribunal had made a jurisdictional error in its construction of cl 5A504(1)(e)(ii) of the Regulations. 21 The Federal Magistrate found that the Tribunal had misconstrued the regulation by asking itself what the length of the Diploma of Business course at PIBT was, rather than the period of time taken by Mr Kabir to complete that course. In other words, the amount of time Mr Kabir was engaged in study in order to complete that course. The Federal Magistrate found that the Tribunal had fallen into jurisdictional error. I observe, parenthetically, that the Minister conceded before the Federal Magistrate that there had been a jurisdictional error in this regard. 22 The Federal Magistrate found that the term "at least five years of study" referred to in cl 5A504(1)(e)(ii) was to be assessed by aggregating the periods of study at the various institutions attended by Mr Kabir. 23 The evidence was that Mr Kabir had taken more than one year to complete the course for the Diploma in Business at PIBT. He commenced study for the diploma on 24 June 2001 and completed his study two years and six months later. The Federal Magistrate then went on to deduct from that period, a two month period, being the time during which Mr Kabir was overseas. 24 The Federal Magistrate also referred to Mr Kabir's enrolment in 2004 and 2006 in the unit, Management I, at PIBT. Mr Kabir received the grade of zero per cent in respect of these two enrolments. The Federal Magistrate said at [58] of his reasons: In relation to both 2004 and 2006, the 0% results and the awarding of no grade would have entitled the Tribunal to make a finding that they were not periods "of study". This is because a 0% result and no grade is inconsistent with any "study" being undertaken by Mr Kabir, but consistent with there being no application of the mind, nor acquisition of learning, or both. Also, mere enrolment is not "study". (Footnote omitted.) 25 Further, said the Federal Magistrate, the Tribunal could not have had regard to the 2006 Management I unit result because there was no evidence of it before the Tribunal. Therefore, said the Federal Magistrate, there was no requirement for the Tribunal to consider the 2004 and 2006 Management I units for the purposes of calculating the relevant period "of study". 26 The Federal Magistrate then went on to consider whether, notwithstanding the jurisdictional error into which the Tribunal had fallen, relief should be withheld on discretionary grounds. 27 At [65] and [66] of his reasons, the Federal Magistrate observed: For reasons set out above, the Tribunal should also have had regard to the period of study Mr Kabir undertook in the Diploma of Business at PIBT, that period being two years and four months. Together with the 24 months identified above that gives a total of four years and four months of study in English undertaken in Australia. However, on the basis of the evidence before the Tribunal it could never have found, in the Court's view, that there was a further eight months of study in English undertaken in Australia by Mr Kabir. For reasons set out above, Mr Kabir cannot claim the 2004 semester one and 2006 semester one attempts to undertake the Management I unit at PIBT. Further, Mr Kabir can possibly claim two weeks for studies at ECU in the Bachelor of Business Degree in 2007 from 16 February 2007 to 1 March 2007, or assuming completion of semester one at ECU in 2007, a period of up to five months (but which the Court hastens to add there is no evidence in respect of). Otherwise, there is no other period during which there is evidence of study by Mr Kabir which would be able to be considered by the Tribunal. In the circumstances, there was nothing before the Tribunal which would have enabled it to conclude that there was a further eight months of study in English undertaken in Australia, over and above the four years and four months identified above, so as to qualify Mr Kabir as meeting the criteria in cl 5A504(1)(e)((ii). Therefore, to order prerogative relief would be an exercise in futility. Thus, even though the Tribunal did commit jurisdictional error, proper consideration of the application by the Tribunal would, in the Court's view, have resulted in the same outcome by reason of the fact that Mr Kabir cannot establish that he had the required "5 years of study". The Court is therefore of the view that a grant of prerogative relief would be futile, or lack utility, and therefore exercises its discretion to refuse prerogative relief. (Emphasis added.) 28 I have added emphasis to part of the Federal Magistrate's observations to highlight that the Federal Magistrate exercised his discretion to withhold relief on the basis of the evidence before the Tribunal at the time that it made the impugned decision. The relevance of this matter will become apparent later. I also note that the Federal Magistrate referred to the 2006 enrolment in the Management I unit, to have occurred in semester one. This is inconsistent with his statement earlier in his reasons that the enrolment was in semester three. This inconsistency appears to have arisen through an oversight and nothing turns on it.
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.
Kabir
Minister for Immigration and Citizenship
[2010] FMCA 132
(2007) 159 FCR 181
(1996) 70 FCR 151
(2000) 204 CLR 82
(2007) 235 ALR 609
(1986) 161 CLR 141
(2005) 80 ALJR 367
Appeal dismissed. The appellant was ordered to pay the first respondent's costs.