FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2015] FCA 168

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an appeal against a decision of the Federal Circuit Court dismissing an application for judicial review of a decision by the Migration Review Tribunal (the Tribunal). In its decision, the Tribunal affirmed an earlier decision of a delegate of the Minister to refuse to grant Skilled (Provisional) (Class VC) visas to the appellants. There are two issues on the appeal:

(1)    whether the Tribunal made a jurisdictional error in finding that the first appellant, Mrs Kaur, was required to satisfy clause 487.228 or clause 485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and therefore Public Interest Criterion (PIC) 4020; and

(2)    whether the appeal should be dismissed in the exercise of discretion in any event.

2    The first issue turns upon whether ss 12(2) and (3) of the Legislative Instruments Act 2003 (Cth) (the Legislative Instruments Act) applied with the consequence that the amendments to the Regulations enacting clauses 487.228, 485.224 and PIC 4020 could not interfere with the appellants’ accrued right to have the application for review by the Tribunal determined on the law as it stood at the date of the delegate’s decision.

3    For the reasons given below, I do not consider that the Tribunal erred in applying the Regulations as amended to the determination of the appellants’ applications for visas. Further and in any event, I consider that relief should be refused in the exercise of discretion because the jurisdictional error could not ultimately affect the Tribunal’s decision.

4    While the second point might otherwise have been a complete answer to the appeal, this is not a case where the jurisdictional error is immaterial such that it might be said that “to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) at 1207 [87]-[88] (Kirby J). Quite apart from the fact that the first question raises a matter of public importance and was fully argued before me, it is in the interests of justice that it be determined: ibid at [88]. Specifically, if the Tribunal’s finding that PIC 4020 had not been met was tainted by jurisdictional error but left unaddressed, that could significantly disadvantage the applicants in any further visa application made within the next three years by virtue of PIC 4020(2), as the Minister accepted.

2.    BACKGROUND

2.1    The appellants’ visa applications on 30 June 2009

5    Mrs Rajvinder Kaur and Mr Resham Singh (the appellants) are citizens of India. Mrs Kaur applied for a Skilled (Provisional) (Class VC) visa on 30 June 2009. Her husband, Mr Kaur, was named as her spouse in the application. The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain the skills and qualifications required for permanent General Skilled Migration visas. In the present case, Mrs Kaur sought to satisfy the criteria for the grant of a Subclass 487 (Skilled – Regional Sponsored) visa. When making her application, Mrs Kaur nominated the occupation of Pastry Cook (ASCO 4512-13).

6    Mrs Kaur applied to Trades Recognition Australia (TRA) seeking that she be assessed as having the skills for the occupation of Pastry Cook. The work reference on which she relied indicated that she had completed 900 hours’ work experience as a part-time assistant Pastry Cook at a bakehouse in Pymble between February 2007 and March 2008. The reference was purportedly signed by the manager of the bakehouse.

7    By letter dated 14 April 2009, the TRA gave Mrs Kaur a “skills assessment” stating that her application was successful and assessing her relevant occupation as Pastry Cook. Subsequently, in a written statement dated 4 September 2009, the owner of the bakehouse stated that he had never heard of Mrs Kaur or the manager who purportedly signed the reference, and that Mrs Kaur had never worked there.

8    During an interview by the Department on 17 December 2009, Mrs Kaur, on being shown a copy of the work reference, stated that she had not worked at the bakehouse.

2.2    The decision of the Minister’s delegate on 18 January 2010

9    The Minister’s delegate refused the visa applications on 18 January 2010 on the ground that the work experience letter provided to the TRA was false or misleading in a material particular under regulations 487.227(e) and 485.223(c) of Schedule 2 as it then stood. Regulation 487.227 relevantly provided that one of the criteria to be satisfied at the time of decision was that:

No evidence has become available since the time of application that the information given or used:

…

(e)    to obtain the skills assessment mentioned in sub clause 487.223(1);

was false or misleading in a material particular.

10    Regulation 487.223(1) in turn prescribed as a time of decision criterion that:

(1)    The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.

11    Regulations 485.221(1) and 485.223(c) prescribed criteria for the grant of a Skilled (Provisional) Graduate (Subclass 485) visa in similar terms.

12    On 18 January 2010, the TRA advised Mrs Kaur that her skills assessment of 14 April 2009 had been revoked as the owner of the bakehouse had informed the TRA that she did not work there.

2.3    The first Tribunal decision on 28 January 2010

13    The appellants sought review of the delegate’s decision in the Tribunal on 28 January 2010.

14    Subsequently, the Migration Regulations 1994 (Cth) were amended by Schedule 3 to the Migration Amendment Regulations (No. 1) 2011 (Cth) (the Amending Regulations). The Amending Regulations were registered on 1 March 2011 and came into operation on 2 April 2011. Relevantly, clauses 487.227 and 485.223 of Schedule 2 to the Regulations were repealed and replaced by clauses 487.228 and 485.224 so as to require an applicant for a subclass 487 or 485 visa to comply with a new criterion, relevantly, Public Interest Criterion (PIC) 4020.

15    On 2 September 2011, the Tribunal affirmed the delegate’s decision.

16    The Tribunal’s decision of 2 September 2011 was set aside by consent in the Federal Magistrates Court (as it then was) and the application was remitted to the Tribunal on the ground that the TRA had not been specified as a “relevant assessing authority” contrary to the Tribunal’s decision.

2.4    The second Tribunal decision on 15 March 2013

17    Mrs Kaur and Mr Singh appeared before the Tribunal at the hearing on 17 January 2013 to give evidence and present arguments. By that time, an instrument had been issued by the Minister, IMMI 12/068, which specified the TRA as the relevant assessing authority for the occupation of Pastry Cook. That instrument commenced on 1 July 2012.

18    By its decision on 15 March 2013, the Tribunal (differently constituted) affirmed the delegate’s decision not to grant the appellants Skilled (Provisional) (Class VC) visas. The Tribunal found that Mrs Kaur’s nominated occupation of Pastry Cook was a skilled occupation set out in the Legislative Instrument IMMI 12/068 and, while noting that Mrs Kaur sought to satisfy the criteria for the Subclass 487 (Skilled – Regional Sponsored) visa, also considered whether she met the criteria for a Subclass 485 (Skilled – Graduate) visa.

19    Two grounds were pivotal to the Tribunal’s decision.

(a)    First, Mrs Kaur did not satisfy cl 487.223 (and, for the same reasons, cl 485.221) because she did not have a current skills assessment confirming that her skills have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation. There was, therefore, no evidence of a current skills assessment given that:

(i)     Mrs Kaur did not seek to rely upon the skills assessment of 14 April 2009 which had been revoked by the TRA; and

(ii)    the Tribunal rejected Mrs Kaur’s submission that cl 487.223 does not apply to her because at the time that she had lodged her visa application the TRA was not properly specified.

(b)    Secondly, Mrs Kaur had failed to meet the PIC 4020 because:

(i)    she had submitted a “bogus document” to the TRA as the “relevant assessing authority” which the Tribunal found was a false work reference; and

(ii)    she had submitted a “bogus document” to the Department, namely the skills assessment dated 14 April 2009 issued by the TRA in reliance on the false work reference.

20    As to (b) above, the applicant had confirmed before the Tribunal that she had not worked as a pastry cook in Australia when she made her visa application and that the information contained in her application was false. The Tribunal did not accept the applicant’s explanations for her conduct and found that she knew that false and misleading information was provided to the TRA stating that she had the relevant work experience in order to obtain a successful skills assessment. Nor did the applicant give any evidence that there were any compelling or compassionate circumstances within PIC 4020(4) as to why the Minister should waive the requirements of PIC 4020(1), despite being afforded an opportunity to do so.

21    There is no appeal from the Tribunal’s decision on the ground summarised at [19](a) above, but only against the second ground in paragraph [19](b).

2.5    Decision of the Court below

22    The Court below rejected the appellant’s arguments that the Tribunal erred in applying PIC 4020 in accordance with cl 487.228 and 485.224 of Schedule 2 to the Regulations. Relevantly, the Court below held that:

(a)    It was not in dispute that neither the Amending Regulations nor IMMI 12/068 purported to take effect before the date of registration. The Amending Regulations do not operate retrospectively because it is clear from the commencement provision in reg 5 of the Amending Relgulations that they apply only in relation to future decisions about applications for visas (at [67]).

(b)    The appellants’ contention that they had accrued a right to have their application determined by reference to the “time of decision criteria” in force when the delegate’s decision was made is subject to any contrary intention (at [68]-[69]).

(c)    There is a clear contrary intention in regulation 5 of the Amending Regulations that PIC 4020 is to apply to visa applications not “finally determined” within the meaning of s 5(9) of the Migration Act 1958 (Cth) (the Act), i.e., if it remains subject to review by the Tribunal. It follows that the Tribunal was bound to apply the Amending Regulations because the appellants’ visa application had not been “finally determined” when the Amending Regulations commenced (at [70]-[71]). The appellants have no more than a right to compel the Tribunal to make a decision on the prescribed criteria in place at the time of the decision (at [71]).

(d)    It was open to the Tribunal to find that the purported skills assessment was a bogus document given or caused to be given to the Minister in contravention of PIC 4020 notwithstanding that, when the skills assessment was made, the TRA was not properly specified as the “relevant assessing authority” (at [73]-[76]).

(e)    Even if the Tribunal erred in a jurisdictional sense in concluding that a bogus document had been given to the TRA when it was not specified as a relevant assessing authority, any such error would be immaterial as no error was shown in the “separate and independent basis” for the Tribunal’s decision that PIC 4020 (and therefore cl 487.228 and cl 485.224) was not satisfied because a bogus document had been given to the Minister (at [88]-[89]).

23    No separate challenge is made on this appeal to the findings of the primary judge which are summarised at (d) and (e) above otherwise than by the challenge generally to the applicability of cl 487.228 and cl 485.224 and PIC 2040 to the appellants.

3.    CONSIDERATION

3.1    Matters in issue

24    The appellants claim that the Tribunal erred by applying PIC 4020. This was said to raise three issues for determination on the appeal.

(1)    Subject to any contrary legislative intention, did the appellants have an accrued right to have their case determined according to the law in force as at the date of the delegate’s decision?

(2)    If so, is such an accrued right subject to derogation by delegated legislation or, alternatively, must any intention to derogate from that right be manifest in an Act of Parliament? This question turns, as I shall explain, on whether s 12(2) and (3) of the Legislative Instruments Act are engaged.

(3)    If so, does the Act itself exhibit the contrary intention necessary to displace the appellant’s accrued right to have their case determined according to the law in force as at the date of the delegate’s decision?

25    However, the appellants expressly eschewed any challenge to PIC 4020 on the basis that it was ultra vires the regulation-making power contained in ss 31(3) and 504 of the Act. Nor was any argument put that PIC 4020 was inconsistent with any provision of the Act so as potentially to engage the reading down provision contained in s 13 of the Legislative Instruments Act.

26    Finally, the Minister pointed out that, while the appellants had contended in the Federal Circuit Court that the Tribunal had erred in applying PIC 4020, they did so on a different basis. In particular, it was common ground in the Court below that the Amending Regulations did not purport to take effect before the date of registration and, as a consequence, that s 12(2) of the Legislative Instruments Act had no bearing on the proper construction of the Amending Regulations, nor s 12(3) as that subsection operates only as an exception to subsection (2): see at [22](a) above. The Minister therefore contended that the appellants should not be permitted to rely on the argument as formulated on the appeal.

27    In this regard, the High Court has emphasised that “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.”: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). Nonetheless, the Minister accepted that he was in a position to meet the new argument and in fact did so in his written and oral submissions. The new issue was also a pure question of law (Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ)). In all of the circumstances, I do not therefore consider that the appellants should be precluded from raising the arguments sought now to be relied upon.

3.2    Relevant legislative provisions

3.2.1    The Migration Regulations

28    I have earlier set out the regulations as at the date of the delegate’s decision (at [9]-[11] above). Those regulations were also in force when the appellants applied for review of the delegate’s decision. However, as earlier explained, they had been repealed before the second Tribunal decision and replaced by the requirement under clauses 487.228 and 485.224 that an applicant for, respectively, a subclass 487 or 485 visa satisfy PIC 4020. Specifically, at the time of the second Tribunal decision, clauses 487.228 and 485.224 prescribed as time of decision criteria that “[t]he applicant: (a) satisfies public interest criteria… 4020…”. PIC 4020 in turn provided that:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

(2)    The Minister is satisfied that during the period:

(a)    starting 3 years before the application was made; and

(b)    ending when the Minister makes a decision to grant or refuse the application;

the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(3)    To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

29    Subclause 4020(5) defined “information that is false or misleading in a material particular” to mean “information that is: (a) false or misleading at the time it is given; and (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.” The term “bogus document” was defined in reg 1.03 as having the same meaning as in s 97 of the Act, namely:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

3.2.2    Section 12 of the Legislative Instruments Act

30    Section 12(1) of the Legislative Instruments Act provides that, subject to subs (2), a legislative instrument takes effect from (in effect) the date (and time) specified in the instrument, or in any other case, the day following the day when the instrument is registered. Subsection 12(2) creates an exception to that rule, providing that:

(2)    A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:

(a)    the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

(b)    liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration. (emphasis added)

31    Finally, by subs (3), the operation of subs 12(1) and (2) are expressed to be subject to a contrary intention. Specifically, subs (3) provides:

(3)    The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.

32    It was not in issue that, if s 12(2) applied, the effect of s 12(3) is that any contrary intention had to be expressed in a provision of the Act, and that it would not suffice for a contrary intention to be expressed in regulations or other subordinate legislation. Nor was it in issue that the enabling legislative provisions, ss 31(2) and 504 of the Act, did not exhibit a contrary intention which would displace the effect of s 12(2) of the Legislative Instruments Act. Both concessions are in my view correctly made.

3.3    Were the appellants’ accrued rights at the date of registration of the legislative instrument affected to their disadvantage (s 12(2)(a), Legislative Instruments Act)?

33    The appellants contended that the differences between the criteria prescribed by the regulations at the time of the delegate’s decision and those prescribed at the time of the Tribunal’s decision were material, submitting that:

In contrast to cl.487.227 [which applied when the application for review to the Tribunal was first instituted on 28 January 2010], there is no requirement that a “bogus document” (defined in s.97 of the Migration Act) be relevant to a criterion for the grant of the visa (Batra v MIAC [2012] FMCA 544 at [58]). Further, as the Tribunal said…, for the purpose of PIC 4020 an applicant may have given, or caused to be given a bogus document or information that is false or misleading without importing a mental element either knowingly or unwittingly…

34    As to the latter point, it has been held that it is not necessary for the Tribunal to determine whether a visa applicant knowingly provided false information before finding that there has been a failure to comply with PIC 4020, but only that the information was purposefully false: Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169.

35    On this basis, the appellants submit that s 12(2)(a) of the Legislative Instruments Act was engaged because the Amending Regulations affected, to their disadvantage, the appellants’ accrued right to review of the delegate’s decision by reference to the law in force at the time of the delegate’s decision. The appellants therefore contend that s 12(3) is engaged with the result that the Amending Regulations have no effect with respect to the limited class of visa applicants of which they are a member, namely, applicants who have an outstanding application for review before the Tribunal. Given the concessions to which I have already referred, it would follow on the appellants’ case that the Tribunal erred in applying PIC 4020. Rather, clauses 487.227(e) and 485.223(c) of Schedule 2 to the Regulations are said to apply, these being the provisions in force when the delegate’s decision was given and the review application was made.

36    A merits review tribunal generally applies the law in force when it makes its decision, save for those matters involving accrued rights (Victorian Legal Aid v Kuek [2010] VSCA 29; (2010) 26 VR 700 at [32] (Weinberg JA) and the authorities there cited). However, the Minister accepted for the purposes of these proceedings that, subject to a contrary intention, an applicant before the Migration Review Tribunal accrues, upon the making of an application for merits review, the right to have the review determined by reference to the law in force at the time of the delegate’s decision, by analogy with the principle applying to merits review applications before the Administrative Appeals Tribunal: see Lee v Secretary, Department of Social Services (1996) 68 FCR 491 (Lee) at 505 (Cooper J) and 514-515 (Moore J) (applying Esber v Commonwealth (1992) 174 CLR 430 at 440-441 (Mason CJ, Deane, Toohey and Gaudron JJ)). While I note that some reservations have been expressed about the width of the principle expressed by the majority in Lee, it is not necessary or appropriate to consider those here: see Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583 at 590 (Black CJ and Sundberg J).

37    Furthermore, subject to the question of whether s 12(2) otherwise applied, the Minister also accepted that:

(a)    the appellants lodged an application for merits review with the Tribunal before the commencement of PIC 4020, thus taking the step necessary to crystallise the right in question (Re Ross; ex parte Australian Liquor, Hospitality and Miscellaneous Workers Union [2001] FCA 770; (2001) 108 FCR 399 (Re Ross) at 414-415 [52] (the Court));

(b)    the Amending Regulations would affect the appellants’ accrued rights to their disadvantage for the purposes of s 12(2)(a) by requiring compliance with a further criterion being that contained in PIC 4020; and

(c)    there was no contrary provision in the enabling provisions of the Migration Act.

38    Given the Minister’s concession in relation to s 12(2)(a) of the Legislative Instruments Act above, it is unnecessary for me to consider in the alternative whether s 12(2)(b) might be engaged in the present case.

39    It follows that the real issue is whether s 12(2) of the Legislative Instruments Act is engaged at all.

3.4    Did the Legislative Instrument “take effect before the date it was registered” so as to attract s 12(2) of the Legislative Instruments Act?

40    The Minister contended that the appeal must be dismissed on the ground that s 12(2) was not engaged because the Amending Regulation did not apply retrospectively. In my opinion, the Minister’s submission is correct.

41    First, it is not sufficient for the appellants to establish only that their accrued rights were affected to their disadvantage. Before s 12(2) applies, it is necessary also to establish that the Amending Regulation would, apart from subs (2), take effect before the date it is registered. As Smith FM (as her Honour then was) stated in Hu v Minister for Immigration [2007] FMCA 1710; (2007) 214 FLR 296 (Hu v Minister) at [19]:

Turning to the language of s 12(2), it is clear that it raises two elements which must be satisfied before an instrument has no legal effect. One of them is that at the date of registration of the instrument there be in existence ‘rights of a person’ which ‘would be affected so as to disadvantage that person’ in terms of s 12(2)(a), or that the instrument would impose liabilities in respect of something done or omitted before that date in terms of s 12(2)(b). However, even if one of these situations can be found, there is also an added element found in the opening words of the [sic] s 12(2): ‘if, apart from this section, it would take effect before the date is registered’. In my opinion, it is clear from these words that it is not sufficient, for s 12(2) to apply, merely to show that the instrument will adversely affect the continuance or future enjoyment of a person’s rights.

42    Secondly, the words “it would take effect before the date it is registered” mean that the legislative instrument must take effect from a date which precedes its registration, i.e., that it applies retrospectively, and not merely that the legislative instrument adversely affects a pre-existing right. The appellant’s construction to the contrary would render otiose the condition in the opening words of s 12(2). This construction accords with that adopted in Hu v Minister and is consistent with the approach adopted with respect to the statutory predecessors of s 12 of the Legislative Instruments Act (Ignatious v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1395; (2004) 139 FCR 254 at [62] (Weinberg J)). As, for example, Latham CJ explained in Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 at 568-569 in considering (then) s 48 of the Acts Interpretation Act 1901 (Cth):

Nothing can alter the past, but a law may be said to take effect from a past date if the operation of the law is such as to destroy as at a past date rights which then existed or to impose as at a past date liabilities which did not then exist. (emphasis added)

43    Thirdly, the Amending Regulations do not destroy as at a date before registration, any accrued right. The Amending Regulations were registered on 1 March 2011 and commenced subsequently on 2 April 2011 by cl 2 of the Amending Regulations. It follows that the Amending Regulations not attract the operation of s 12(2).

44    That being so, there is no other reason suggested by the appellants as to why the transitional provisions in the Amending Regulations should not be given effect. The amendments relating to public interest criteria were set out in Schedule 3 to the Amending Regulations, in which regard regulation 5(2) of the Amending Regulations provided that:

The amendments made by Schedule 3 apply in relation to an application for a visa:

(a)    made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 2 April 2011; or

(b)    made on or after to April 2011. (emphasis added)

45    Subsection 5(9) of the Act, in turn, provides that:

For the purposes of this Act, an application under this Act is finally determined when either:

(a)    a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)    a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

46    Applying this definition, the appellant’s application for a visa had clearly not been finally determined when it was still before the Tribunal on review. It follows that the Tribunal correctly proceeded on the basis that PIC 4020 applied to the application for review made by the appellants and no jurisdictional error on the part of the Tribunal has been established.

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](a) 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)).

4.    CONCLUSION

54    The appeal must be dismissed with costs.

Associate:

Dated:    5 March 2015