Minister for Immigration and Border Protection v Hossain

Federal Court of Australia (Full Court)|2017-05-25|Before: Mortimer JJ

Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 SZTBW v Minister for Immigration and Border Protection [2014] FCA 1277 VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480

Date of hearing: 18 November 2016

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Counsel for the Appellant: Mr G Kennett SC with Mr T Reilly

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant

AND: SORWAR HOSSAIN First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES: FLICK, FARRELL AND MORTIMER JJ DATE OF ORDER: 25 MAY 2017

The appeal is allowed.
The decision and orders of the Federal Circuit Court are set aside.
The First Respondent is to pay the Appellant's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT FLICK AND FARRELL JJ: 1 The First Respondent in the present proceeding, Mr Sorwar Hossain, is a citizen of Bangladesh. He first travelled to Australia in May 2003, then holding a Student visa. That visa expired in November 2005. Mr Hossain was in Australia as an unlawful non-citizen between September 2008 and January 2013. In May 2015 he applied for a Partner visa. A delegate of the Minister refused that application. 2 Review was sought of the delegate's decision. He appeared before the Administrative Appeals Tribunal in February 2016. Some days later, the Tribunal published its reasons for decision. It affirmed the delegate's decision. 3 An application was then filed with the Federal Circuit Court of Australia. That Court (inter alia) quashed the decision of the Tribunal: Hossain v Minister for Immigration and Border Protection [2016] FCCA 1729. 4 The Minister now appeals to this Court.

The decision of the Tribunal 5 In order to be granted the visa, Mr Hossain had to satisfy the decision-maker that he satisfied the "criteria … prescribed by … the regulations": Migration Act 1958 (Cth) s 65(1)(a)(ii) (the "Migration Act"). 6 Section 65(1) relevantly provided as follows: Subject to sections 84 and 86, after considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. 7 There were relevantly two criteria that had to be satisfied before the Minister could be "satisfied" for the purposes of s 65(1), namely cll 820.211 and 820.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the "Migration Regulations"). 8 First, cl 820.211(1) provided in relevant part as follows: The applicant: … (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9). Clause 820.211(2) provided in relevant part as follows: An applicant meets the requirements of this subclause if: … (d) in the case of an applicant who is not the holder of a substantive visa - either: … (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The Tribunal concluded that criterion 3001 was not satisfied and that there were no "compelling reasons" for not applying that criterion. 9 Secondly, cl 820.223(1) of Sch 2 to the Migration Regulations separately provided as follows: The applicant: (a) subject to subclause (2) - satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and (b) if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019. Public Interest Criterion 4004, as found within Sch 4 to the Migration Regulations, provides as follows: The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. The Tribunal concluded that Mr Hossain did not satisfy Public Interest Criterion 4004. This conclusion of the Tribunal should be set forth in its entirety, namely: Public Interest Criterion 4004 39. The Tribunal has also discussed with the applicant the requirements of Item 4004. The applicant confirmed in oral evidence to the Tribunal that he had an outstanding debt to the Commonwealth following his visa applications and judicial review. He said that although he intended to repay the debt, he had not made any arrangements for doing so. His representative suggested that the applicant was waiting for the 'final bill' and once all the bills were combined, they would make arrangements to pay. This is an odd statement, given that the first debt would be arisen following the first RRT decision in 2004. There is no obvious reason why the applicant would wish to wait over ten years to resume making repayments. The Tribunal is not convinced that the applicant had any intention to repay the debt. The Tribunal notes that to date, some days after the applicant attended the hearing, he has not presented any evidence that he has made the repayments or that he had made any arrangements to repay the debt. The Tribunal is not satisfied on the evidence before it that appropriate arrangements have been made for repayment of the applicant's outstanding debt to the Commonwealth. The Tribunal finds that the applicant does not meet PIC 4004 for the purpose of cl. 820.223. 10 Before the Federal Circuit Court, two matters were common ground or not put in issue, namely: the Tribunal had erred in its construction and application to the facts of the phrase "compelling reasons"; and Mr Hossain accepted, as he did before the Tribunal, that as at the date of the Tribunal decision he had "outstanding debts to the Commonwealth". But Mr Hossain had later paid those debts in May 2016 - that being, however, a date after the decision of the Tribunal. 11 The Federal Circuit Court Judge characterised at least one of the questions that arose as being "whether the character of the error made by the Tribunal in confining itself to compelling reasons at the time of application is properly described as jurisdictional error": [2016] FCCA 1729 at [12]. In resolving this question, reliance was placed upon Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, (2016) 241 FCR 121. The Court there concluded that the decision-maker was not confined to considering only compelling reasons which existed at the time of application. The Federal Circuit Court concluded that the Tribunal had committed jurisdictional error, reasoning as follows: [22] Moreover, this Court is bound by what was said in the Full Court in Waensila, and to find in the present case a characterisation of the failure of the Tribunal to focus on compelling reasons at the time of decision not being a jurisdictional error would on its face be contrary to the principle articulated by the Full Court. I am not persuaded that the approach adopted by this Court in [Menon v Minister for Immigration & Border Protection [2016] FCCA 1708] was wrong in characterising the type of error that has occurred by the Tribunal in the present case as being a jurisdictional error, notwithstanding the separate finding as to non-compliance with PIC 4004 in cl.820.223(1)(a). That Court thereafter went on to place emphasis upon the fact that the "outstanding debts to the Commonwealth" had been paid, albeit after the date of the Tribunal decision.

The pitfalls of jurisdictional error sought to be avoided 12 Considerable care was demonstrated on the part of the Appellant Minister in the drafting of the sole Ground of Appeal to this Court. 13 That Ground was expressed as follows: The learned primary Judge erred in holding that an error by the Second Respondent in applying criterion 3001 in Schedule 3 to the Migration Regulations 1994 ("the Regulations") went to its jurisdiction, in circumstances where: a. the Second Respondent also found that the First Respondent did not satisfy Public Interest Criterion 4004 in Schedule 4 to the Regulations; b. that finding was not attended by any error; and c. the consequence of that finding was that the First Respondent did not satisfy the criteria for grant of the visa applied for. The orders sought also assume relevance. Those orders are as follows: 1. The Appeal be allowed. 2. The judgment of the Federal Circuit Court be set aside, and in lieu thereof it be ordered that the Application filed on 24 March 2016 be dismissed with costs. 3. The First Respondent pay the Appellant's costs of the Appeal. 14 As drafted, it will be noted that the draftsman carefully did not seek to characterise any error on the part of the Tribunal as a "jurisdictional error". Presumably what the draftsman had in mind was to avoid the prospect of any jurisdictional error being made out or admitted; had such an error been exposed, the prospect would thereafter loom large that the whole decision of the Tribunal was potentially a nullity. The prospect sought to be avoided by the Appellant Minister was that Mr Hossain's application would have to be considered afresh: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597. 15 Notwithstanding the characterisation by the Federal Circuit Court of the error as to the construction and application of the phrase "compelling reasons" as "jurisdictional error", on appeal Senior Counsel for the Minister assiduously sought to avoid any characterisation of error on the part of the Tribunal as "jurisdictional". 16 As drafted, it will be further noted that the draftsman also sought to place reliance upon the conclusion of the Tribunal that Public Interest Criterion 4004 had not been satisfied. 17 On appeal to this Court there was no attempt to impugn the Tribunal's conclusion as to Public Interest Criterion 4004. That was hardly surprising. The failure to satisfy that Criterion was admitted by Mr Hossain before the Tribunal. 18 If the facts as found by the Tribunal are put into statutory context, it nevertheless quickly emerged that: Mr Hossain did not satisfy, as at the date of the Tribunal decision, Public Interest Criterion 4004; and that in the absence of any ability to satisfy both "criteria", s 65(1)(b) precluded the delegate and the Tribunal from granting Mr Hossain the visa he sought. Irrespective of any error in respect to cl 820.211(2), however it be characterised, if Public Interest Criterion 4004 was not satisfied neither the delegate nor the Tribunal had the authority or the jurisdiction to grant the visa: Migration Act s 65(1)(b). 19 It may well not have been far from the mind of the Minister that a successful appeal from the decision of the Federal Circuit Court on a basis that did not involve jurisdictional error on the part of the Tribunal was far preferable to the risk involved in having the decision of the Tribunal set aside and the prospect upon a rehearing that the Tribunal as previously constituted (or a differently constituted Tribunal): could reach a different factual conclusion as to "compelling reasons" if it properly construed and applied that phrase to the facts as they may have been differently presented upon any rehearing; and/or could reach a different factual conclusion as to whether there remained an "outstanding debt" to the Commonwealth as at the date of any rehearing. It will be noted that the Orders sought on appeal by the Minister did not contemplate any re-hearing before the Tribunal. 20 Whatever may have been the reason for the drafting of the Grounds of Appeal and the Orders Sought as set forth in the Notice of Appeal, Senior Counsel for the Minister was pursued as to whether he would accept that the argument he sought to have accepted in this Court could alternatively be expressed as: error on the part of the Federal Circuit Court in failing to conclude that the Tribunal had no authority or jurisdiction to grant the visa in circumstances where Mr Hossain did not satisfy the requirement imposed by Public Interest Criterion 4004 and where no challenge was made to that finding by the Tribunal. Senior Counsel accepted that that was a different way of reaching the same conclusion. So expressed, the error is separated from any consideration as to any failure to satisfy Public Interest Criterion 3001.

The consequences of jurisdictional error 21 The prospect that an administrative decision affected by jurisdictional error may be set aside in its entirety is very real. 22 In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597, Gaudron and Gummow JJ relevantly concluded (at 616): [53] … a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the [Acts Interpretation Act 1901 (Cth)]. But that decision does not extend so far that a conclusion must necessarily be reached that a decision which exposes jurisdictional error necessarily results in that decision in its entirety being regarded as a nullity: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, (2003) 145 FCR 1. Gray and Downes JJ there considered the decision in Bhardwaj and concluded in part as follows (at 16): [42] In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 23 In the circumstances of the present case, it is respectfully concluded that any legal error on the part of the Tribunal - be it characterised as jurisdictional or otherwise - in respect to the construction and application of the phrase "compelling reasons" for the purposes of cl 820.211(2)(d)(ii) did not have any of the consequences that the Tribunal's decision to refuse the visa was a nullity or that the Tribunal was stripped of all authority or jurisdiction to make that decision or that the Tribunal was incapable of determining a separate and discrete point, being the conclusion expressed in respect to Public Interest Criterion 4004. 24 Even where jurisdictional error is exposed, a decision may only be regarded as a nullity if the error strips the decision-maker of "authority" to make the decision: Craig v South Australia (1995) 184 CLR 163 at 179. Brennan, Deane, Toohey, Gaudron and McHugh JJ there concluded: At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in [In re Racal Communications Ltd [1981] AC 374 at 383]: "Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, parliament did not intend to do so." The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 25 Section 65(1)(b) of the Migration Act, as at the date of the Tribunal's decision, forever remained an impediment to Mr Hossain's path to success because he did not satisfy s 65(1)(a)(ii) at the time the Tribunal made its decision. No conclusion should be reached that an administrative decision should be set aside in circumstances where the applicable legislation precluded any other decision being made. 26 On the facts of the present case, neither the delegate nor the Tribunal had "authority" to grant Mr Hossain the visa he sought at the time they made their decision. Indeed, to have done so would have exceeded the "authority" vested in them and would have been contrary to s 65(1)(b). 27 It is a mistake to try and characterise the proper approach to the resolution of the present issue as seeking to transform an accepted "jurisdictional error" into a "non-jurisdictional error". The error committed by the Tribunal in respect to the construction and application of cl 820.211(2)(d)(ii) remained a "jurisdictional error". But the use of such a label cannot confer authority or jurisdiction upon the Tribunal to do anything other than to affirm the Minister's decision where Public Interest Criterion 4004 had not been satisfied and where s 65(1)(b) precluded the grant of a visa. The recognition of jurisdictional error in respect to the conclusion reached in respect to cl 820.211(2)(d)(ii) says nothing as to the absence of jurisdictional error in respect to the entirely separate and discrete conclusion reached in respect to a separate statutory prohibition confronting Mr Hossain's path to success, namely his failure to satisfy Public Interest Criterion 4004. 28 The consequences of jurisdictional error are not susceptible to an invariable conclusion that a decision is rendered a nullity. The consequences of jurisdictional error must always depend upon the statutory context in which a decision is made and the findings of fact. Left to one side for present purposes is a statutory context in which an administrative discretion is conferred to grant an application and those statutory contexts in which findings of fact of relevance to the grant or refusal of a claim cannot be separated one from the other. 29 The present statutory context is one in which the Minister (or the Minister's delegate or the Tribunal) is prohibited from granting a visa if satisfied that one or other of a number of statutorily prescribed criteria have not been met and a statutory context in which the findings of fact of relevance to the reaching of the state of satisfaction in respect to one criteria stand separate and apart from the findings of fact of relevance to another criteria. Only one decision can be made by the Minister - to grant or to refuse to grant the visa sought. But jurisdictional error which may vitiate the fact finding process in respect to one criteria stands separate and apart from the fact finding process in respect to the other. 30 The conclusion of the Tribunal in respect to cl 820.211(2)(d)(ii) was in excess of the jurisdiction or authority vested in it. But the Tribunal nevertheless retained jurisdiction or authority to determine the separate and discrete point going to Public Interest Criterion 4004. Indeed, no challenge was made to the fact finding process in respect to this criterion. 31 Given this conclusion, it is unnecessary to resolve any question as to whether relief would have been refused in the exercise of the Court's discretion. 32 Although it follows from this conclusion that Mr Hossain may be deprived of the benefit of a rehearing before the Tribunal at a point of time when he may now be able to prove to the satisfaction of the Tribunal that he satisfies Public Interest Criterion 4004, it is respectfully concluded that such a result is one of his own making. As is apparent from the Tribunal's decision record at [39], Mr Hossain's representative attended the hearing before the Tribunal at which the issues of the need to comply with Public Interest Criterion 4004 was identified. Compliance did not require the immediate payment. It required only that Mr Hossain put in place arrangements which would satisfy the Minister. It was open to the Tribunal to be sceptical as to Mr Hossain's intentions having regard to the length of time that his debts to the Commonwealth had been extant without him making any effort to pay them. Mr Hossain did not ask the Tribunal to defer its decision to give him an opportunity to put arrangements in place or to pay his debts to the Commonwealth. The Tribunal did, in fact, wait nine days before making its decision. The Tribunal's factual findings that Mr Hossain owed debts to the Commonwealth and had not made satisfactory arrangements for payment required the Tribunal to find that Public Interest Criterion 4004 was not satisfied at the time it came to make its decision. That finding was not infected by the admitted jurisdictional error in relation to Public Interest Criterion 3001. 33 The decision of the Federal Circuit Court quashing the decision of the Tribunal should be set aside.

CONCLUSIONS 34 It is concluded that: the appeal should be allowed; the decision and orders of the Federal Circuit Court should be set aside; and the First Respondent should pay the Appellant the costs of the appeal. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick and Farrell.

MORTIMER J: 35 The first respondent (Mr Hossain) has been in Australia for some time, initially pursuant to a student visa (until 2005) and thereafter without a valid visa. He has made several unsuccessful applications for protection visas, but in 2010 he met his partner, Ms Akter. She has two children from a previous marriage. Mr Hossain began living with Ms Akter in approximately May 2013. 36 In May 2015, Mr Hossain applied for a Partner (Temporary) (Class UK) visa. The visa was refused in December of that year and Mr Hossain sought review in the Tribunal by an application made on 4 January 2016. He and Ms Akter attended a hearing before the Tribunal on 16 February 2016. The Tribunal decided, on 25 February 2016, that the decision under review should be affirmed. 37 The Tribunal expressed two bases in its reasons for this decision. One of them was found by the Federal Circuit Court to be a conclusion affected by jurisdictional error. The existence of an error of the nature identified (and the Full Court authority supporting it) is not contested by the Minister, although - critically - the Minister contests the use of the label "jurisdictional". The Tribunal's second basis for affirming the delegate's decision was, at the time the Tribunal made its decision, factually correct and not subject to any challenge on judicial review. Notwithstanding the second basis for the Tribunal's decision, the Federal Circuit Court set the decision of the Tribunal aside. The Minister contends that course was not available to the Federal Circuit Court. For the reasons that follow I do not accept the Minister's submission, and I consider the appeal should be dismissed.

Relevant Legislative provisions 38 It was common ground that the first respondent did not hold a substantive visa at the date he applied for the partner visa. Accordingly, pursuant to cl 820.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth), the first respondent was required to satisfy criteria 3001, 3003 and 3004 in Sch 3 to the Regulations, unless the decision-maker was satisfied that there were compelling reasons for not applying those criteria. 39 Clause 820.21 is headed "Criteria to be satisfied at time of application". One of those criteria, set out in cl 820.211(2)(d), provided: (d) in the case of an applicant who is not the holder of a substantive visa - either: (i) the applicant: (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and (B) satisfies Schedule 3 criterion 3002; or (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 40 Relevantly for present purposes, Sch 3 criterion 3001 provided: (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)). (2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: (a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of: (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully; or … 41 Clause 820.22 is headed "Criteria to be satisfied at time of decision". At the relevant time, one of those criteria, set out in cl 820.223, provided: (1) The applicant: (a) subject to subclause (2) - satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and (b) if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019. (2) Paragraph (1)(a) does not apply to an applicant referred to in subclause 820.211(5). 42 Relevantly, public interest criterion (PIC) 4004 provided: The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.

The Tribunal's decision 43 It was not in dispute before the Tribunal that the first respondent did not hold a substantive visa at the time he made the application for the Partner visa and that he did not meet cl 820.211(2)(d)(i). The issue, as identified by the Tribunal, was whether the first respondent satisfied the Sch 3 criteria for the purposes of cl 820.211(2)(d)(ii). The Tribunal found that the application was not validly made within 28 days of the relevant day (within the meaning of subcl 3001(2)(c)(i) of Sch 3 of the Regulations), and accordingly was not satisfied that the first respondent met criterion 3001. 44 The Tribunal then considered whether there were compelling reasons for not applying the Sch 3 criteria. This is the key part of its reasoning relevant to the first basis for its decision to affirm the decision under review. At [16] of its reasons, the Tribunal stated that the question of whether there are compelling reasons for not applying the Sch 3 criteria must be considered in relation to circumstances existing at the time of the first respondent's visa application. After considering the first respondent's immigration history, the evidence about his relationship with his partner and her children, his partner's claimed health conditions and the first respondent's submissions to the delegate regarding why the criteria should be waived, the Tribunal found that there were no such compelling reasons at the time of the application. 45 The Tribunal also found that the first respondent did not satisfy cl 820.223, because he had not met PIC 4004. The Tribunal found he had an outstanding debt to the Commonwealth and had not made any appropriate arrangements to repay it. At [39], the Tribunal said: Public Interest Criterion 4004 39. The Tribunal has also discussed with the applicant the requirements of Item 4004. The applicant confirmed in oral evidence to the Tribunal that he had an outstanding debt to the Commonwealth following his visa applications and judicial review. He said that although he intended to repay the debt, he had not made any arrangements for doing so. His representative suggested that the applicant was waiting for the 'final bill' and once all the bills were combined, they would make arrangements to pay. This is an odd statement, given that the first debt would be arisen following the first RRT decision in 2004. There is no obvious reason why the applicant would wish to wait over ten years to resume making repayments. The Tribunal is not convinced that the applicant had any intention to repay the debt. The Tribunal notes that to date, some days after the applicant attended the hearing, he has not presented any evidence that he has made the repayments or that he had made any arrangements to repay the debt. The Tribunal is not satisfied on the evidence before it that appropriate arrangements have been made for repayment of the applicant's outstanding debt to the Commonwealth. The Tribunal finds that the applicant does not meet PIC 4004 for the purpose of cl. 820.223. 46 I infer the statement by the Tribunal that "to date, some days after the applicant attended the hearing…" is a reference to the date of its decision record: namely, 25 February 2016. The Tribunal hearing occurred on 16 February 2016. The point the Tribunal seems to be making is that in the intervening nine days the first respondent took no steps of his own volition to make arrangements to repay the debt. There is no evidence the Tribunal discussed with the first respondent whether he might make any arrangements to pay all or some of the debt after 16 February and before the Tribunal made its decision. The matter seems to have been left for the first respondent to decide what to do. In the context of a debt that has been outstanding for more than 10 years and which was an identified impediment to the grant of a visa to the first respondent, the Tribunal's approach was quite reasonable. 47 There is no dispute that, in the way the Tribunal's reasons are structured, the Tribunal decided that there were two criteria the first respondent did not satisfy and it affirmed the delegate's decision by reference to the first respondent not meeting cl 1 of Sch 3 criterion 3001 and PIC 4004.

The Federal Circuit Court's decision on judicial review 48 Before the Federal Circuit Court, the parties accepted the Tribunal had correctly concluded (at [13]) the 28 day time limit in Sch 3 criterion 3001 was not complied with, and the question for decision on review was whether there were compelling reasons to waive all or some of the applicable Sch 3 criteria (including the 28 day limit). It was also accepted that the Tribunal misdirected itself by considering whether any compelling reasons existed at the time the first respondent applied for his partner visa, rather than at the time of decision (i.e., here, the time of the Tribunal's decision). 49 The Minister made the concession before the Federal Circuit Court about the Tribunal's error, on the basis of the Full Court decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 (Waensila). Senior counsel on the appeal read into the transcript the terms of that concession: MR KENNETT: I will just see if I can get it in precise terms. The Minister said in his written submissions below: The Minister concedes that the tribunal fell into error for the reasons identified in Waensila - and gave the citation - in construing clause 820.211(2)(d)(ii) as confining the decision-maker's satisfaction of whether there are compelling reasons for not applying schedule 3 criteria to circumstances which only exist at the time of application. That is the Minister accepts that the tribunal erred as pleaded in the application. So that was what we said in writing in the Circuit Court. 50 Senior counsel submitted this was not a concession that the error was jurisdictional in character. He submitted: There wasn't a concession that it was jurisdictional. I mean, jurisdictional is the conclusory label that one applies at the end of the analysis. There was a concession that the attempt to apply that criterion was erroneous. The court in Waensila, the Full Court, confines itself, or confines its reasoning, to the analysis of the wording of the criterion, and of what Wilcox J had said, and doesn't go as a separate issue into whether this is jurisdictional. I think everyone assumes that it was because - and rightly so, because, as Griffiths J noted at paragraph 30, this was the only issue that was alive in the tribunal. So if the tribunal had gone wrong on that criterion its decision had no proper basis and was properly set aside. It's different to this case. 51 The absence of a concession about the jurisdictional character of the error is at the heart of the Minister's argument. 52 The Federal Circuit Court found, contrary to the Minister's submissions, that the Tribunal's error concerning cl 820.211(2)(d)(ii) being confined to compelling reasons existing at the time of the visa application was an error which was jurisdictional in nature. The Federal Circuit Court referred to a previous decision, by the same judge, in Menon v Minister for Immigration and Border Protection [2016] FCCA 1708 where an "almost identical argument" by the Minister was put and rejected. At [22], the Federal Circuit Court also disagreed with the Minister's submissions that the Full Court decision in Waensila could be distinguished: Moreover, this Court is bound by what was said in the Full Court in Waensila, and to find in the present case a characterisation of the failure of the Tribunal to focus on compelling reasons at the time of decision not being a jurisdictional error would on its face be contrary to the principle articulated by the Full Court. I am not persuaded that the approach adopted by this Court in Menon v Minister for Immigration was wrong in characterising the type of error that has occurred by the Tribunal in the present case as being a jurisdictional error, notwithstanding the separate finding as to non-compliance with PIC 4004 in cl.820.223(1)(a). 53 The Federal Circuit Court characterised the question therefore as one of discretion and utility (at [20]): There is scope to argue that some authorities appear to support a proposition that where there are independent grounds to support the exercise of power, an incorrect characterisation of the nature of the power being exercised by the Tribunal should not be treated as a jurisdictional error. Such a change in characterisation does not advance the rule of law and the certainty of principle for application of the doctrine of stare decisis. Those authorities are not consistent with what was said by the High Court of Australia in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [29] as follows: [29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". In this regard, the references that were made in the course of argument to the "unbundling" of a tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case. 54 Looked at from the perspective of discretion and utility, the Federal Circuit Court referred to the evidence before it that Mr Hossain had since repaid his debt to the Commonwealth (after the Tribunal decision) and concluded (at [25]-[29]): 25. What the Court identified in Menon, which is equally applicable to the present case, is that if there had been a finding that there were compelling reasons, the Tribunal might have exercised its powers to grant the applicant further time to meet the public interest criteria 4001 [this should be 4004] being of a particular kind in relation to the collection of debt that does not relate to the applicant's characteristics or the safety of the Australian community. 26. The PIC 4004 is of a different kind to that found in relation to criteria 4001, 4002, 4003, 4007, 4009, which all relate to the applicant and/or his family ties, and can be seen to directly impact on the subject matter of the objects of the Act and the safety of the Australian community. PIC 4004, however, is a criterion of a different kind addressing the recovery of outstanding debts. Whilst the recovery of outstanding debts administratively is of importance and within the scope of the legislative powers, it is of a different nature to the other criteria. 27. Whether a particular finding of fact is one in a particular case that a Court finds persuasive to withhold the grant of relief is a matter for determination in that particular case. The principle being applied, however, as to whether the grant of relief can be said to be of no utility, is certainly clear. Mr Reilly of counsel submitted that it was not relevant in the present case that there may have been payment of the debt, because PIC 4004 had to be met at the time of decision. 28. In my opinion, a Court can receive evidence in relation to the utility of granting relief and the fact that, in the present case, the debt has been paid is admissible and goes directly to whether or not discretionary relief should be granted in respect of the jurisdictional error by the Tribunal in the present case. I am not persuaded that it can be said that the grant of relief in the present case could not be the subject of a useful result. 29. I find that the correct consideration of compelling reasons by a new Tribunal might find that there were compelling reasons and, in doing so, the applicant now would not be met with a denial of a grant of visa because of the PIC 4004, the debt having been paid. Accordingly, the Court is satisfied that the decision of the Tribunal in the present case is affected by jurisdictional error and that, as a matter of discretion, it is appropriate to grant relief. 55 Senior counsel accepted on the appeal that if the Federal Circuit Court was correct to approach the matter in terms of discretion and utility, there was no appealable error in the way it had done so.

Jurisdictional error 56 It should be recalled that the characterisation of an error as jurisdictional matters, for the purposes of judicial review under the Migration Act 1958 (Cth), because of the presence of the privative clause in s 474 of the Act. An error that is jurisdictional in nature cannot be protected by such a clause, for the reasons given by the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 relating to the exercise of judicial power under s 75(v) of the Constitution, now confirmed to extend to the exercise of judicial power by State Supreme Courts: see Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 (Kirk). Otherwise, relief that a Court may grant by way of judicial review so as to remove the legal consequences of a decision may be modified or excluded by statute: see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [26]. 57 It may be accepted, consistently with the submissions of senior counsel for the Minister, that "jurisdictional error" is a label applied by way of conclusion once an error of a particular kind has been identified. This is the thrust of what was said in Kirk at [64] and [73]. The examples of jurisdictional error given in Craig v South Australia [1995] HCA 58; 184 CLR 163 (Craig), and discussed in Kirk at [72] all depend on the terms, nature and extent of the power in issue, generally a statutory power, and therefore depend on the proper construction of the power in accordance with the principles set out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. 58 Here the statutory power in question is that contained in s 65 of the Migration Act. The formation of the requisite state of satisfaction for the purposes of s 65 (broadly, whether the applicable criteria are or are not met) has been identified as a jurisdictional fact: see generally Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 (per Gummow J); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 620-621 (per Gummow A-CJ and Kiefel J), 638, 643-644 and 648 (per Crennan and Bell JJ); Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at 179-180 (per French CJ), 194-195 (per Gummow, Hayne, Crennan and Bell JJ); Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 at [34] (per Crennan, Bell, Gageler and Keane JJ). In S297/2013, the plurality said: The decision to be made by the Minister in performance of the duty imposed by s 65 is binary: the Minister is to do one or other of two mutually exclusive legally operative acts - to grant the visa under s 65(1)(a), or to refuse to grant the visa under s 65(1)(b) - depending on the existence of one or other of two mutually exclusive states of affairs (or 'jurisdictional facts') - the Minister's satisfaction of the matters set out in each of the sub-paragraphs of s 65(1)(a), or the Minister's non-satisfaction of one or more of those matters. The decision is not made, the duty is not performed, and the application is not determined, unless and until one or other of those legally operative acts occurs: that is to say, unless and until the Minister either grants the visa under s 65(1)(a) or refuses to grant the visa under s 65(1)(b). The Minister grants a visa by causing a record of it to be made (s 67). (Footnote omitted.) 59 Whether or not there is room to debate the accuracy or appropriateness of such a description (see, for example, Basten JA in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [241], Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189; 235 FCR 441 at [41]-[42]; and see Aronson M, Groves M, and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017), pp 246-247), it currently represents the law with respect to s 65 of the Migration Act. If there is a miscarriage of the formation of a decision-maker's state of satisfaction about whether a criterion for the grant of a visa is met, most obviously, in one of the ways set out in Craig and Kirk, then the requisite jurisdictional precondition for an exercise of power under s 65 does not exist and the exercise of power is liable to be set aside. That proposition holds true whether the power is exercised favourably or unfavourably in relation to a visa applicant. The debate about nullity, and the scope of the High Court's finding in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 can be put to one side for present purposes. 60 Relevantly, the Tribunal formed a state of satisfaction for the purposes of s 65 in relation to two different, and independent, visa criteria. The formation of a state of satisfaction about those two visa criteria led to an exercise of power under s 65 to refuse to grant the visa, albeit by way of affirming the decision under review. In my opinion there is no doubt that the formation of the Tribunal's state of satisfaction about the criterion in cl 820.211(2)(d)(ii) miscarried, and did so (to use the language from Craig) because it misapprehended the nature of its function in applying cl 820.211(2)(d)(ii) by wrongly restricting consideration to whether compelling reasons existed at the time of Mr Hossain's visa application. 61 The Minister did not contest that in Waensila, the Full Court characterised an error of this kind as jurisdictional. He submitted that in Waensila, the cl 820.211(2)(d)(ii) finding was the only finding on which the Tribunal's review decision turned, and therefore the characterisation was appropriate because it was that error which "affected" the Tribunal's decision. I return below to the source of the approach about whether an error "affects" an exercise of power. 62 In contrast, in the present circumstances, the Minister submitted there were two independent bases for the Tribunal decision. So much can be accepted, as I have set out above. It is the next step of the Minister's argument which causes me difficulty. He contends the existence of a second and independent basis for the Tribunal's decision on review renders what would otherwise be an error of a jurisdictional kind an error of a non-jurisdictional kind. That is so, he contends, because the ultimate exercise of power in the review (under ss 348 and 349 of the Act, read with s 65) was not "affected" and it can be inferred the Tribunal would have exercised that power (to affirm the decision under review) in the same way, notwithstanding the miscarriage of its understanding and application of cl 820.211(2)(d)(ii). 63 The Minister relies on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [82], where McHugh, Gummow and Hayne JJ said (by reference to Craig): It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.' 'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (Emphasis added, footnotes omitted.) 64 Senior counsel accepted the argument would run equally to any other jurisdictional error, no matter how egregious - such as a significant denial of procedural fairness or an obvious misconstruction of the central operative criterion (which might, I observe, be said to be the nature of the error here). In all such cases, in the Minister's submission, the nature of the error itself was transformed into a non-jurisdictional one if the decision-maker's reasons disclosed a separate and independent basis to affirm a decision under review, and that separate basis is not impugned. Or, so the argument must run, is unsuccessfully impugned. 65 The difficulty I have with the Minister's argument about the passage in Yusuf is that it treats the references to "affects" the exercise of power or "exceeds" the power in both the extract in Craig and the passage in Yusuf at [82] as a separate requirement, rather than an explanation of what jurisdictional error is. I read those passages differently. I read those passages as speaking to the "gravity" of the error (to use Professor Jaffe's word: see Kirk [64], quoting Jaffe LL, "Judicial Review: Constitutional and Jurisdictional Fact" (1957) 70 Harvard Law Review 953) and the need for the error to be material to how the decision-maker was required to, and did, discharge the statutory task. The relationship between the power, properly construed, and the error identified (as explained in Project Blue Sky), will be critical. The attributes of gravity and materiality (which have to do with the nature of the error relative to the power under consideration) mean, where such an error is made, the decision-maker's jurisdiction remains "constructively unexercised": SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [52]. In the context of the power in s 65, a court can identify the error as one which means formation of the state of satisfaction as to that visa criterion has miscarried. 66 In the current circumstances, the Tribunal's misunderstanding of the scope and operation of cl 820.211(2)(d)(ii) was of sufficient gravity and materiality to how it discharged its task of determining whether it was satisfied the relevant visa criteria were or were not made out. Its error was jurisdictional in nature, as the Full Court in Waensila held. 67 I do not accept the premise of the Minister's argument that the very same error - misunderstanding the proper construction and operation of a visa criterion - can be jurisdictional in one case and non-jurisdictional in another. The nature of the error is not ambulatory, where the very same statutory criterion and statutory power are involved in both circumstances. Contrary to the Minister's submissions, it is not possible to quarantine or isolate the error from the ultimate decision on the review. That is because the decision on the review represents the formation of the state of satisfaction required by s 65, formed in the context of the obligation to "review" the delegate's decision. 68 The Minister sought to distinguish cases such as SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 and Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; 159 FCR 181 (Lee) on the basis they were all procedural fairness cases, and a breach of procedural fairness has been held almost invariably to result in the miscarriage of the review function of the Tribunal, although senior counsel had accepted at another point the argument that the approach he was putting was capable of applying where one of the two errors was a denial of procedural fairness (see [64] above). 69 The reality is that it is difficult to discern a consistent approach throughout the authorities as to the appropriate outcome where there is more than one basis for a Tribunal's decision on review under the Migration Act. That is not necessarily a criticism because each case gives rise to different considerations in different settings. In many of the cases, it is difficult to know whether what the Court had in mind was a discretionary basis for refusing relief, rather than an acceptance of the argument now put that the nature of the error is transformed from jurisdictional to non-jurisdictional. 70 In my opinion the correct approach is to accept an error of this kind is jurisdictional and then to ask whether there is utility in the grant of relief to an applicant, because of a second basis for the decision on review. The answer to that question will depend on the circumstances of each case.

An alternative analysis 71 If, contrary to the view I have formed, the Minister is correct in his submission that an error of the same kind involving the same statutory power and the same statutory visa criterion can be transformed from jurisdictional to non-jurisdictional depending on whether the error can be said to have "affected" the exercise of the Tribunal's review power, I would have reached the same conclusion in this appeal. In my opinion, the error about cl 820.211(2)(d)(ii) was capable of affecting the exercise of the Tribunal's review power and its approach to PIC 4004. 72 That is because the Tribunal's error about cl 820.211(2)(d)(ii) concerned a visa criterion with a significant discretionary element. What are, or are not, "compelling reasons" will be highly fact dependent. Likewise, given that the criterion in PIC 4004 must be satisfied at the time of decision, the Tribunal had some discretionary scope about when it proposed to make its decision, and thus retained some discretion about whether the first respondent would be able to meet that criterion. There is also a discretionary element to what constitutes "appropriate" arrangements to repay a debt due to the Commonwealth. The Tribunal allowed just over a week between the hearing and its decision, in case the first respondent might of his own volition have decided to pay the debt. It is not possible to be so certain it would have reached the same conclusion on cl 820.211(2)(d)(ii) if properly instructed and if it had looked at the evidence and material before it at the time of its decision. It is not possible to say how taking the correct approach to "compelling reasons" may have affected the Tribunal's approach to whether the first respondent should be given a qualitatively different opportunity to make "appropriate arrangements" to pay his debt to the Commonwealth. Perhaps it would, perhaps it would not - the Court must be astute not to descend into merits review by endorsing what it considers to be the "inevitable" outcome given the reasoning of the Tribunal, which reasoning is affected by error. That is why, in circumstances dealing with denial of procedural fairness, the bar is set as low as a "possibility" of a different outcome, as the High Court in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147 made clear. To set the bar any higher would embroil the Court in deciding what the outcome of the merits review would or should have been. 73 If the Tribunal had approached the evidence and material before it on the basis of deciding what the factual situation was at the time it completed its review, rather than the time of application, it is not possible to determine the Tribunal would inevitably have concluded the first respondent did not demonstrate "compelling reasons". In Waensila, at [18], Robertson J set out the purpose of the criterion in cl 820.211(2)(d)(ii), expressed in the present tense, as his Honour emphasised. Further, if, as I accept, the purpose of the Minister's discretion in cl 820.211(2)(d)(ii) is to give the Minister greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant, then to my mind it would be inconsistent with that purpose to limit the circumstances the Minister may take into account to circumstances existing at some past point. The immediate purpose of the discretion is to relieve the visa applicant from being required to satisfy at the time of application Sch 3 criteria 3001, 3003 and 3004. I see no reason to limit the circumstances, whether they favour the visa applicant or not, to the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not, in my opinion, be given a construction which prevents the Minister, at the time of his decision, from taking into account in assessing "compelling reasons", the circumstances which prevail at that time. 74 Dowsett J emphasised the same purpose (at [2]): As demonstrated by Robertson and Griffiths JJ, the power is designed to provide flexibility in the operation of the legislative and regulatory scheme. That flexibility ought not be limited by limiting the circumstances which may be relevant to the exercise of the power, at least in the absence of any statutory or regulatory requirement. 75 Properly instructed, there may have been matters in the material which would have caused the Tribunal to re-think its approach to the first respondent's circumstances. As I have noted above, the Court must be astute not to assess the material itself, and assess the course of the Tribunal's (erroneously based) reasoning so as to in effect reach a conclusion about what the merits outcome of the review "would" have been. This is especially so when both criteria have discretionary elements. If the Tribunal might have taken a different approach to cl 820.211(2)(d)(ii), it is also possible the Tribunal might have taken a different approach to the discretionary elements in PIC 4004. 76 It is not correct to say, as was suggested during argument on the appeal, the Tribunal "had no jurisdiction" to grant the first respondent a visa because of the non-payment of the debt to the Commonwealth. That proposition is too absolute. PIC 4004 is a "time of decision" criterion. That meant the debt could be paid at any time up to the time the Tribunal made its decision and if paid, then PIC 4004 would be satisfied. The Tribunal could allow a considerable period of time after the review hearing and before decision to allow this to occur. PIC 4004 also included an alternative: namely that the Tribunal was satisfied "appropriate arrangements" had been made to pay the debt. In terms, that could be something less than full payment of the debt prior to the completion of the Tribunal's review, and the Tribunal could nevertheless be satisfied that visa criterion was met. The Tribunal, having conduct of the review and being in control of the time at which it decided to bring the review to an end, had control of the time at which a criterion such as PIC 4004 needed to be met, and how it needed to be met. If minded or persuaded to do so, it could have given the first respondent a certain period of time in which to pay the debt, or make arrangements. Indeed, by the terms of its decision which I have extracted at [45] above, it appears to have waited approximately nine days to see if the first respondent, of his own volition, made any payment arrangements. If the debt were paid or such arrangements made to the Tribunal's satisfaction, then PIC 4004 would no longer be a legal impediment to the grant of a visa, although at the time of hearing it may well have been. There is a real element of discretion in the Tribunal where "time of decision" criteria are capable of ongoing fulfilment, and in the case of PIC 4004 in particular, some discretion about what arrangements the Tribunal considers "appropriate". 77 The two visa criteria in issue on the review before the Tribunal, although separate, were not entirely independent of each other. The Court should proceed on the basis that, properly instructed, the Tribunal retains an open and persuadable mind. There are discretionary and subjective elements in the assessment of both criteria. It is common, and entirely proper, on merits review, that an applicant may - at the discretion of the Tribunal - be given time to satisfy a criterion (see, for example, the Tribunal's decisions the subject of appeal in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, and Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153, 180 FCR 510). That is not to say a Tribunal must do so: it is simply to illustrate that the time over which the review continues is at the control of the Tribunal, and circumstances may change for an applicant (to her or his advantage or detriment). Whether "compelling reasons" exist at the time of the conclusion of a review hearing may persuade a Tribunal to give an applicant a longer period of time to meet PIC 4004. 78 As to the authorities relied on by the Minister, I consider the decision in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 can be distinguished. 79 VCAD was a protection visa case, concerning an applicant's claims to fear persecution on the basis of a refusal to perform compulsory military service. Kenny J, the primary judge, identified the error thus (in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005 at [35]): As noted above, whilst the Tribunal in the present case referred to the applicant's claim that he was 'religiously opposed to war', it made no finding as to whether his avoidance of military service arose from a conscientious objection and, if so, whether that objection was a religious one. The Tribunal apparently proceeded on the mistaken basis that a law of general operation, which did not expressly discriminate or inflict disproportionate punishment, could not support a well-founded fear of persecution for a Convention reason. This is plainly erroneous, and involved the Tribunal asking itself the wrong question. There may well be a well-founded fear of persecution because a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for a Convention-related reason. 80 However, her Honour did not find this error entitled the applicant to relief by way of an order in the nature of certiorari to set aside the Tribunal's decision. Her Honour held (at [36]) that the Tribunal found that there was an amnesty in Yugoslavia for "draft dodgers and deserters" ("draft dodger" being how the Tribunal characterised the applicant's claims). Her Honour went on to say that: Given this finding, the Tribunal was justified in concluding that the applicant would not be persecuted in Yugoslavia for any Convention reason that included his religious or political objections to military service. I accept that, as the respondent submitted, the applicant is not entitled to relief in a case where the decision must have been made regardless of an identified error in the decision-maker's reasons for decision. (Emphasis added.) 81 Two (related) matters must be noted about VCAD, and Kenny J's reasons. First, since this was a protection visa case, the criterion in issue (and the formation of the requisite state of satisfaction for the purposes of s 65 and the jurisdictional fact it has been held to create) was, relevantly, the Art 1A criterion from the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967). Although that has several limbs, for the purposes of s 36 of the Migration Act it was one criterion: see s 36(2)(a) as it stood at the time of VCAD. Second, the Tribunal's further factual finding was not something that was susceptible to change, because it was a finding of fact about the situation in Yugoslavia which provided an objectively separate basis for the Tribunal's state of satisfaction that the Art 1A criterion was not met. 82 In my opinion, Kenny J's reasoning is also not inconsistent with her Honour's approach being refusal of relief on a discretionary basis. There is certainly nothing to the effect of the Minister's argument before this Court that is present in Kenny J's reasons. 83 On appeal, as Gray J noted at [18], the appellant's arguments centred on the proposition that: …her Honour was wrong to hold that the fact that an amnesty had been declared justified the Tribunal in concluding that the appellant would not be persecuted for any Convention reason. 84 At [19], Gray J said: It is clear that the Tribunal's conclusion that the appellant did not have a well-founded fear of persecution for any Convention reason, should he return to Yugoslavia, was based on the Tribunal's findings that the situation in Yugoslavia had changed considerably since the occurrence of the events dealt with in the appellant's claims. One of these changes was the declaration of the amnesty for draft evaders and deserters. (Emphasis added.) 85 At [20], Gray J found the general conclusion by the Tribunal that the situation in Yugoslavia had changed was open to the Tribunal on the material before it. 86 The two passages on which the Minister relies are at [22] and [23] of Gray J's reasons: It is true, as counsel for the appellant submitted, that the Tribunal's expressed reasons can be taken to expose its reasoning. They may reveal errors of omission or commission. See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ. This does not lead to the conclusion that, whenever the Tribunal's reasons disclose that it has made an error, its decision must be set aside. In order to be a jurisdictional error of one of the kinds described by McHugh, Gummow and Hayne JJ in Yusuf at [82], the error must be of a kind that 'affects the exercise of power'. The powers of the Tribunal are found in s 415 of the Migration Act. They include powers to affirm or vary a decision, and the power to set aside a decision and substitute a new decision. When the Tribunal's decision as to how it will exercise its powers is based on a conclusion unrelated to the error, the exercise of power is not affected. Kenny J was correct in holding that the Tribunal's decision in the present case was based on its finding as to the amnesty, so that the error in the Tribunal's approach to the law requiring compulsory military service in the appellant's country of origin did not affect the exercise of the Tribunal's power. There have been numerous cases in which decisions of tribunals under the Migration Act have been upheld, notwithstanding error apparent in the tribunals' reasons, because those reasons also disclose that there is another basis on which the tribunal concerned found against the person applying for a visa. Recent examples include NAIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114 at [17], VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] and NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 at [24]. 87 In these passages, Gray J does not articulate the argument that the Minister makes in the present appeal. How his Honour interpreted what was said in Yusuf is not set out. What his Honour meant by a "conclusion unrelated to the error" is left unspecified, but what can be said with certainty is that in VCAD, as in all the cases to which his Honour referred at [23], there was a single visa criterion under consideration: that is, the Art 1A criterion. Whether the formation of the Tribunal's state of satisfaction on that criterion miscarried in a jurisdictional sense because of an identified error will always depend on the nature of the error, the nature of the statutory provision(s) and power(s) in issue, and, returning to the language in Kirk, the gravity and materiality of that error in the context of the exercise of power involved. 88 The distinction is apparent from the reasons of Sundberg and North JJ in VCAD at [45]: Section 430(1)(c) of the Migration Act requires the Tribunal to prepare a written statement that sets out any findings on any material questions of fact. The Tribunal found that because of the amnesty the appellant was not at risk of persecution. It then added: 'Even if the applicant were to face some punishment, penalty or sanctions, (even though this has been ruled out by the amnesty) such sanctions would be imposed because of his failure to perform military service and not attributable to his political opinion, membership of a particular social group or any other Convention ground.' This statement, although erroneous, is merely an unnecessary fall-back position: as demonstrated by the words in parentheses referring to the amnesty. As such, it does not demonstrate that the error identified by the primary judge may have affected the Tribunal's decision. 89 In my opinion, the same analysis applies to the decisions in SZTBW v Minister for Immigration and Border Protection [2014] FCA 1277 at [19]-[20] (Perry J) and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (SZOOR) at [102] (McKerracher J) and [114] (Reeves J). In these decisions, the reviewing Court is identifying that the formation of the state of satisfaction as to Art 1A did not miscarry in a jurisdictional sense. 90 The problem with drawing analogies with protection visa decisions is the multifarious nature of the Art 1A criterion, as these decisions all demonstrate, especially where what is subject to judicial review are credibility findings by the Tribunal, and the fact finding which led to them. Hence one finds statements such as that by McKerracher J in SZOOR at [87]: From the summary appearing above, it is evident that the third Tribunal, independently of the anonymous letter, concluded that the corroborative documentary material was obviously and deliberately fabricated. 91 In other words, in many cases (SZOOR being one of them) the intermediate finding by the Tribunal that an applicant was not credible was composed of many strands, only one of those strands being identified (or, in SZOOR, assumed for the sake of argument) to be erroneous. 92 The nature of the error alleged is also important. For example, in SZOOR, the error was said to be the irrationality of a particular factual finding. It is not difficult to see how a reviewing Court might find (or assume) irrationality in one factual finding yet not be persuaded that it caused the decision-maker's overall state of satisfaction on a visa criterion to miscarry. 93 Finally, it is by no means apparent in many of the decisions on which the Minister relies that the reviewing Court was doing anything other than examining the grant of relief as a discretionary consideration. For example, in SZOOR, McKerracher J said (at [95]-[96]): Accepting there was some reliance on the anonymous letter and assuming for present discussion that there should not have been, it has long been recognised (as discussed by Siopis J in Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513) judicial review relief may be withheld if granting it would be futile to the result. Special leave to appeal to the High Court was refused in Kabir v Minister for Immigration and Citizenship [2011] HCASL 24. Ultimately it comes down to a question of whether it can be said that the grant of relief could not possibly make a difference to the Tribunal's eventual deliberations. This was the test enunciated by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 and 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) 228 CLR 470. Nevertheless, it is clear from such cases and, in particular Aala, the grant of relief under constitutional writs is a matter for discretion, much depending on the facts and circumstances of each case. The majority in Aala held, as Gleeson CJ noted (in [4]-[5]) that it could not be concluded that the denial of procedural fairness made no difference to the outcome of the proceeding. All members of the High Court, however, adopted the same or similar test. All members recognised that not every breach of the rules of natural justice would affect the making of a decision. As McHugh J (who was in dissent in the actual result) observed (at [104]), a breach of the rules of natural justice would not automatically invalidate a decision adverse to a party affected by the breach. His Honour noted that in Stead the High Court had already observed that "not every departure from the rules of natural justice of a trial will entitle the aggrieved party to a new trial". However, his Honour, as with the majority, emphasised that a court should refuse relief only when it is confident that the breach could not have affected the outcome. 94 In my opinion the Federal Circuit Court simply took the approach McKerracher J has outlined in SZOOR above. 95 After the Court reserved its decision, the parties drew the Court's attention to a recent Full Court decision in Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69. In particular, the parties referred the Court to [12]-[17], [41]-[48] and [121]-[127] of the Full Court's reasons in Shrestha. Having considered that decision, I do not consider it affects the conclusions I have reached. In Shrestha, each of the judges on the Full Court was relevantly concerned with the application of principles concerning the discretionary withholding of relief where jurisdictional error was established, and the appropriate threshold for determining whether relief should be withheld. As I note below, the question of the appropriate threshold for withholding relief on a discretionary basis was not in issue on this appeal, due to the concession made by the Minister on the appeal.

Discretion to refuse relief 96 The discretion to refuse relief where jurisdictional error is identified is rarely exercised. The explanation for this was given by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 (Aala) at [51]-[53], (Gleeson CJ agreeing at [5]) : The position respecting refusal of prohibition was expressed in more general terms by Gibbs CJ in R v Ross-Jones; Ex parte Green. After referring to various authorities, including Australian Stevedoring Industry Board (in which the expression 'in excess of its authority' was used with reference to the activities of tribunals), Gibbs CJ said: 'If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.' That statement should be accepted as the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution. The expression 'want or excess of jurisdiction' in that passage includes, in the sense explained earlier in these reasons, the consequence of failure to observe the rules of natural justice in the exercise of statutory authority. The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves 'two separate questions'. The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights. In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable. (Footnotes omitted.) 97 Their Honours' observations about prohibition are, in my opinion, plainly applicable to judicial review by the Federal Circuit Court under s 476(1) of the Migration Act, notwithstanding that orders setting aside a tribunal decision (in the nature of certiorari) are more usually granted than orders in the nature of prohibition. That practice stems from the Minister's quite proper position that an order in the nature of prohibition is usually unnecessary, as the Minister will respect the Court's decision. 98 Similarly, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 (Applicants S134/2002) at [90], Gaudron and Kirby JJ said: Relief by way of prohibition and mandamus is discretionary and, ordinarily, if no specific claim is made in relation to a specified criterion for the grant of a visa, relief will be refused. It will be refused because, in the absence of a specific claim, it would have been impossible for the decision-maker to have been satisfied that that criterion had been met. However, the present case is unusual in that the Tribunal had before it material which, if it had been taken into account, might well have established the prosecutors' membership of a family unit of which one person had claimed to be owed protection obligations under the Convention and whose claims in that regard had been recognised. (Emphasis added, footnote omitted.) 99 The approach as set out in Aala and Applicants S134/2002, as well as the authorities to which McKerracher J referred in SZOOR and the reasons of Besanko J in Lee at [47] (Moore and Buchanan JJ agreeing), make it clear why the Minister was compelled to submit in the present case that the Tribunal's error was not jurisdictional. 100 Once the matter is approached by way of discretion, the Minister has conceded there was no error in the Federal Circuit Court taking into account evidence before it that the debt to the Commonwealth had been repaid in determining whether there was utility in setting aside the Tribunal decision and remitting the matter. Where on review there were two reasons for a Tribunal's conclusion that a visa should not be granted, relating to two different visa criteria, it will not always be the case there will be utility in remitter. It will depend on the particular visa criteria in issue, the state of the evidence before the Court, and the decision-maker's reasons. In the present case, as the Minister accepted, the Federal Circuit Court's discretion did not miscarry.

Conclusion 101 In my opinion, the Minister's appeal should be dismissed with costs. I certify that the preceding sixty-six (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Interpretation Act 1901(Cth)

Migration Act 1958(Cth)s 65(1)(a)(ii)

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