3.5 Should the discretion to grant relief be exercised?
47 Even if I were wrong in rejecting the submission that the Tribunal's decision is tainted by jurisdictional error, the Minister submits that relief should be refused for the reason that there is no challenge to the Tribunal's findings that Mrs Kaur failed to satisfy the criteria in cl 487.223 and cl 485.221 by failing to provide a skills assessment (see at 19 above). It follows, the Minister submits, that even if the appellants are correct in their submission that the Tribunal wrongly applied PIC 4020, the decision-maker would be bound to refuse their applications for visas. That submission is, in my view, plainly correct: see by analogy SZBYR at 1197-1198 [28]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
48 Against this, the appellants submitted first that the grant of relief would not be futile because, if the matter were remitted to the Tribunal, Mrs Kaur may now be in a position to provide a relevant skills assessment so as to satisfy clauses 487.223 and 485.221. That submission is, with respect, misconceived. The appellants rely in this regard on a "forward looking" test by which to determine whether the grant of relief is futile based upon the decision in Lee v Minister for Immigration [2007] FCAFC 62; (2007) 159 FCR 181 (Lee v Minister). However, as the Minister submitted, that decision has to be understood in its context. In Lee v Minister, the jurisdictional error comprised a failure to comply with a statutory obligation to provide an opportunity to be heard. In such a case, depending upon the circumstances, the jurisdictional error may be remedied by affording an applicant the opportunity to lead evidence and make submissions which had previously been denied. This, in turn, may lead to a different result before the Tribunal.
49 By contrast, it is not alleged here that there has been a failure to provide the appellants with an opportunity to be heard in accordance with the Act. The position is, rather, analogous to that considered by Siopis J in Kabir v Minister for Immigration and Citizenship [2010] FCA 1164 (Kabir) (application for special leave to appeal refused on [2011] HCALS 24). As his Honour held at [52]:
…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, [Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82], per Gaudron and Gummow JJ at [57]-[58].)
50 In short, the jurisdictional error alleged by the appellants has no logical relationship in the circumstances of this case to the leading of further evidence or making of further submissions which might be "cured" by remitting the matter to the Tribunal.
51 Secondly, even accepting this point, the appellants submitted that the grant of relief would still serve a useful purpose given the consequences for them of the Tribunal's finding that PIC 4020 had not been complied with, namely, that they would be unable to satisfy cl (2) of PIC 4020 in any future application for a visa within the next three years. PIC 4020(2) is quoted at [28] above. As the appellants also pointed out, it is only in very limited circumstances that the Minister may waive the requirements of subclause (2) under PIC 4020(4) (also set out at [28] above).
52 Against this, the Minister submitted that, if the Court were to hold that PIC 4020 did not apply to the appellants' case, it would follow that the Minister or Tribunal on review could not be satisfied of a failure to satisfy PIC 4020(2) on any further visa application by them. As such, in the Minister's submission, it would be unnecessary for the matter to be remitted to the Tribunal to determine that matter. I consider that the Minister's submission is correct. In my view, the requirement in PIC 4020(2) should be read as referring to a lawful refusal of the visa "because of" a failure to satisfy the criteria in PIC 4020(1). While therefore, the validity of the Tribunal's decision to refuse the visa was unaffected by the error, in circumstances where a Court had found that the Tribunal's decision was tainted by jurisdictional error in so far as the Tribunal had refused the visa by reason of noncompliance with PIC 4020(1), I do not consider that the Minister could reasonably be satisfied of a prior refusal "because of" a failure to satisfy that criterion.
53 Finally, I note in this regard that, because the delegate's decision was made before PIC 4020 came into force, this case would not suffer from the difficulties confronted by the appellant in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (Prodduturi). In that case both the delegate and the Tribunal had refused the subclass 485 visa on the grounds of non-compliance with PIC 4020. As a result, the Full Court held that there would have been no utility in setting aside the Tribunal's decision as it would have left the delegate's decision in place relevantly for the purposes of PIC 4020(2), and neither the Federal Circuit Court nor the Federal Court had jurisdiction to entertain a challenge to the delegate's decision: Prodduturi at [30]-[32], [34]-[38] (Perram and Perry JJ (Gleeson J relevantly agreeing)).