FEDERAL COURT OF AUSTRALIA

Hamidy v Minister for Immigration and Border Protection [2019] FCA 221

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s decision of 18 May 2017 to cancel the Applicant’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) visa be quashed.

2.    The Respondent pay the Applicant’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    In this proceeding the applicant, Mr Kaz Hamidy, seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection, acting personally, to cancel Mr Hamidy’s Refugee and Humanitarian (Migrant) (Class BA) (Subclass 200) visa (refugee visa). The Minister decided to cancel Mr Hamidy’s visa under s 501(3) of the Migration Act 1958 (Cth) (the Act), on the basis that he reasonably suspected that Mr Hamidy has a “substantial criminal record” (as defined) and therefore did not pass the “character test” under the Act, and was satisfied that cancellation of Mr Hamidy’s visa was in the national interest.

2    Mr Hamidy was born in Iraq and came to Australia on 21 July 1998 on a refugee visa. He has a lengthy history of criminal offending, which began in 2001, three years after arriving in Australia. On 5 August 2011 he was sentenced to a total of 30 months’ imprisonment on charges of false imprisonment and common-law assault. He therefore has a substantial criminal record within the meaning of subs 501(6)(a) and (7)(c) of the Act, having been convicted and sentenced to a term of imprisonment of 12 months or more.

3    It is plain enough that, having regard to Mr Hamidy’s substantial criminal record and history of criminal offending, a decision to cancel his refugee visa may be open to a reasonable decision-maker, but the Minister must proceed according to a correct understanding of the Act and make any such decision according to law. In my view the Minister did not do so.

4    In summary the Minister recognised that Mr Hamidy made claims that may give rise to international non-refoulement obligations, but considered it unnecessary to decide whether Australia owed such obligations. The Minister erroneously considered that Mr Hamidy’s protection claims would necessarily be considered if he made an application for a protection visa. The Minister accepts this was an error and I consider the error to be jurisdictional.

5    The Minister’s primary argument is that the Court should exercise its discretion to withhold relief essentially because, following cancellation of Mr Hamidy’s refugee visa, he applied for a protection visa and a delegate of the Minister has assessed and rejected his protection claims. Mr Hamidy has however applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision and the Tribunal must conduct a de novo hearing. For the reasons I explain I am not persuaded that it is appropriate to withhold relief in the circumstances of the case and I consider the Minister’s decision must be quashed.

SECTION 501(3) OF THE ACT

6    Section 501(3) confers a discretionary power on the Minister to cancel a person’s visa if the Minister reasonably suspects the person does not pass the “character test” in subs (6) and the Minister is satisfied that cancellation is in the national interest. Section 501(6)(a) provides that a person does not pass the character test if “the person has a “substantial criminal record” (as defined by subsection (7))”. Section 501(7)(c) provides that for the purposes of the character test a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.

THE FACTS

Mr Hamidy’s history of criminal offending

7    Having been found by the UNHCR to be a refugee, Mr Hamidy was granted a refugee visa and he arrived in Australia on 21 July 1998. The evidence discloses that he has a lengthy history of criminal offending beginning in 2001, including convictions for offences involving assault, assault with a weapon, armed robbery, reckless conduct endangering serious injury, recklessly causing injury and intentionally causing injury, dishonesty, drug offences, multiple driving offences and multiple breaches of judicial orders. I will not set out the full history of Mr Hamidy’s criminal conduct and it suffices to note the two most significant convictions and sentences, being:

(a)    8 April 2008 – convictions for the following offences with concurrent sentences (except as stated below):

(i)    burglary – 15 months’ imprisonment;

(ii)    obtaining financial advantage by deception – 9 months’ imprisonment, cumulative;

(iii)    theft (two counts) – 8 months’ imprisonment on each count;

(iv)    obtaining property by deception (10 counts) – 6 months’ imprisonment on each count;

(v)    attempt to obtain property by deception (two counts) – 4 months’ imprisonment on each count;

(vi)    attempted theft;

(vii)    possession of a drug of dependence – 1 month imprisonment;

(viii)    licence cancelled for 2 months; and

(ix)    ordered to pay compensation of $72,039.

These convictions resulted in a total effective sentence of three years and four months; and

(b)    5 August 2011 – convictions for false imprisonment with a sentence of 30 months’ imprisonment, and for common law assault with a sentence of one month to be served concurrently. The total term of imprisonment was two years and six months.

Earlier visa decisions

8    On 18 April 2012 a delegate of the Minister considered whether to cancel Mr Hamidy’s visa under s 501(2) of the Act. The delegate was satisfied that Mr Hamidy did not pass the character test, but exercised the discretion not to cancel his visa and instead gave him a warning that his visa may be cancelled if he engaged in further criminal conduct.

9    On 28 August 2015 (without Mr Hamidy having been convicted of any further offence following that warning) the Minister purported to cancel Mr Hamidy’s visa under s 501(3) of the Act. The Minister decided that he reasonably suspected that Mr Hamidy did not pass the character test and that visa cancellation was in the national interest. Mr Hamidy applied for judicial review and on 7 March 2017 the Court made orders by consent to quash the decision.

10    On 10 May 2016 Mr Hamidy was convicted of further criminal offences, namely unlicensed driving and intentionally recording a court proceeding without authorisation, but no imprisonment or fine appears to have been imposed at that time. The further hearing of the charges was adjourned to 9 May 2017.

The visa cancellation decision of 18 May 2017

11    On 11 May 2017 the Department of Immigration and Border Protection (Department) prepared a brief to the Minister to again decide whether to consider cancelling Mr Hamidy’s refugee visa under s 501(2) or (3) of the Act and, if so, whether to cancel Mr Hamidy’s visa (the brief). The brief addressed various considerations pertinent to the Minister’s decision. Relevantly to the grounds of the application before the Court the brief said the following (emphasis in original):

International non-refoulement obligations

[63]    In a submission dated 8 September 2015, Mr HAMIDY’s legal representatives stated his removal from Australia to his home region of Basra, Iraq would constitute a breach of Australia’s non-refoulement obligations, stating his family were mandated as refugees by the UNHCR prior to their resettlement in Australia in 1998 (Attachment T). Previous submissions from 2012 also include that he is fearful of returning to Basra (Attachment H).

[64]    Submissions made on 7 March 2017 stated Mr HAMIDY’S removal to Iraq “would expose him to a real chance of persecution, or a real risk of significant harm, contrary to Australia’s protection obligations”. The submissions include references and excerpts from a number of open source reports to illustrate the dangers he would face if returned to his home region in Iraq, including terror attacks, sectarian violence, a rise in criminality and the weakening of state authority. The submissions also include legal arguments as to the Department’s need to consider the consequence of Mr HAMIDY’s removal to Iraq before exercising the power to cancel his visa (Attachment FF, p.8).

[65]     Since Mr HAMIDY would be able to make a valid application for a Protection visa should his current visa be cancelled, any protection claims that he may wish to make would be considered at that time.

12    On 18 May 2017 the Minister decided to exercise his discretion to cancel Mr Hamidy’s visa under s 501(3)(b) of the Act and provided written reasons for that decision (the Minister’s reasons) as drafted by the Department. The Minister’s reasons state, and it is uncontentious, that by reason of Mr Hamidy’s 2011 convictions for which he was sentenced to 30 months’ imprisonment, he had a “substantial criminal record” as defined by s 501(7)(c). On this basis the Minister reasonably suspected that Mr Hamidy did not pass the character test under s 501(6) of the Act.

13    The Minister then considered whether it was in the national interest to cancel Mr Hamidy’s visa. He decided that it was, having regard to the nature and seriousness of Mr Hamidy’s history of criminal offending including the recent convictions in May 2016 (which, although minor, had been committed by Mr Hamidy while he was on bail for pending matters), and that he had been identified as a person who associated with an outlaw motorcycle gang and with a person who has been involved in criminal conduct.

14    The Minister then considered whether there were discretionary reasons for not cancelling Mr Hamidy’s visa, including: (a) the best interests of minor children; (b) expectations of the Australian community; (c) ties to Australia; and (d) extent of impediments if Mr Hamidy was removed from Australia. The Minister also adverted to the question of whether Australia owed non-refoulement obligations to Mr Hamidy. Consistently with the brief, the Minister acknowledged that Mr Hamidy made claims that may mean Australia has such obligations towards him, but said it was unnecessary to decide because Mr Hamidy was able to make a valid application for a protection visa and any protection claims he may have could be considered in detail in that process. This assumption is central in the present proceeding.

15    The Minister reached the conclusion that the seriousness of Mr Hamidy’s crimes and the risk to the Australian community outweighed the countervailing considerations (including the interests of his children and the impact on his wife, as well as the impediments he would face on return to Iraq in light of his mental health issues and history of drug abuse) and decided to exercise the discretion to cancel Mr Hamidy’s visa.

The application for a protection visa

16    On 11 May 2018 Mr Hamidy applied for a protection visa, as the Minister had indicated was available to him. On 30 August 2018 a delegate of the Minister refused to grant Mr Hamidy a protection visa, finding that he was not a person in respect of whom Australian has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act. In brief summary the delegate:

(a)    did not accept that Mr Hamidy had been “disowned” by his tribe and would be unable to avail himself of tribal protection if he were to return to Iraq;

(b)    said that Mr Hamidy’s father, a wealthy returnee from the West, was able to live in relative peace and security in Basra after the family returned to Iraq in 2005 and considered that Mr Hamidy’s experiences would be similar if he also returned to Iraq; and

(c)    said that Mr Hamidy’s home town of Basra appeared to be more stable than the north of Iraq, and he would not need to relocate to another area.

The delegate found Mr Hamidy was not a refugee within s 5H(1) of the Act and was not satisfied that Mr Hamidy had a real chance of being subject to significant harm if returned to Iraq.

17    On 31 August 2018 Mr Hamidy applied to the Tribunal for review of that decision. That application has not yet been decided.

THE APPLICATION FOR JUDICIAL REVIEW

18    On 22 June 2017 Mr Hamidy filed an originating application seeking judicial review of the Minister’s decision to cancel his refugee visa. In an amended application for review he advanced three grounds of review. Having regard to my decision it is only necessary to deal with Ground 1.

19    Subsequent to the hearing the Minister brought to the Court’s attention that, while the Minister’s decision to cancel Mr Hamidy’s refugee visa correctly described the visa as a Refugee and Humanitarian (Migrant) (Subclass 200) visa, it wrongly described it as a Class XB rather than as a Class BA visa. I accept the Minister’s submission that the difference between a Class XB and Class BA visa is one of nomenclature rather than substance and that the misdescription of the visa class does not affect the status of the Minister’s decision. I proceed on the basis that this slip is not material.

GROUND 1

20    Ground 1 of the originating application alleges:

[T]he Minister misunderstood that the Applicant’s “protection claims” would “necessarily” be considered in the event that the Applicant was to make an application for a protection visa.

21    This ground concerns paragraphs 96 to 99 of the Minister’s reasons as set out below, with paragraph 99 being the key:

[96]    I have considered Mr HAMIDY arrived in Australia on a refugee visa and note submissions made in September 2015 which express concerns for his removal from Australia to his home region of Basra, Iraq and claims made by his representatives [that] such action would be a breach of Australia’s non-refoulement obligations. I have also given consideration to previous submissions from Mr Hamidy which state he is fearful at the prospect of returning to Iraq.

[97]    I note submissions made on 7 March 2017, that Mr HAMIDY’S removal from Australia to Iraq would ‘expose him to a real chance of persecution, or a real risk of significant harm, contrary to Australia’s protection obligations’. Mr HAMIDY’S legal representative stated Mr HAMIDY and his wife would represent a mixed Shia-Sunni Muslim couple if they were to relocate to Iraq and this was in the context of ‘ongoing sectarian strife throughout the country’s south’. I note the submissions included references and excerpts from a number of open source reports to illustrate the dangers Mr HAMIDY faced if he was to return to his home region in Iraq, including terror attacks, sectarian violence, a rise in criminality and the weakening of state authority.

[98]    I further note the submissions of 7 March 2017 stated that the consequences of Mr HAMIDY’s removal to Iraq needed to be considered before the power to cancel his visa was exercised.

[99]    Mr HAMIDY has made claims that may give rise to international non-refoulement obligations. However, Mr HAMIDY is able to make a valid application for a Protection visa and any protection claims he may have could be considered in detail in that process. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr HAMIDY for the purposes of this decision.

(Emphasis added.)

22    Ground 1 of the application relies on the decision of the Full Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 (BCR16) (Bromberg and Mortimer JJ, Davies J dissenting). In this case the Assistant Minister decided that it was unnecessary to consider whether Australia had protection obligations towards BCR16 when deciding not to revoke a visa cancellation decision under s 501CA, on the basis that BCR16 was able to apply for a protection visa and any such protection obligations could be assessed at that time. At that time, there was nothing to govern the order or sequence in which the various criteria for the grant of a protection visa were to be considered by the Minister or his delegate, and the decision-maker was free to decide the sequence.

23    Bromberg and Mortimer JJ held (at [60] and [67]) that because a failure to satisfy a relevant criterion (for example the health criterion) could compel visa refusal, depending upon the sequence in which the decision-maker addressed the criteria, a failure to satisfy a criterion could result in a decision to refuse to grant a visa before the Minister or the delegate considered whether non-refoulement obligations were owed to the visa applicant. Their Honours said that the Assistant Minister misunderstood the likely course of decision-making under the Act by assuming that non-refoulement obligations would necessarily be considered in any later protection visa application, and that such an error was jurisdictional: see BCR16 at [66]-[69].

24    The Minister applied for special leave to appeal the decision in BCR16 to the High Court and leave was refused. In Minister for Immigration and Border Protection v BHA17 (2018) 362 ALR 9; [2018] FCAFC 68 at [84]-[90] (Robertson, Moshinsky and Bromwich JJ) the Full Court rejected the Minister’s contention that the Court should hold that BCR16 is plainly wrong.

25    The relevant paragraph of the Assistant Minister’s reasons in BCR16 is in almost identical terms to the Minister’s reasons at paragraph 99 in the present case: see BCR16 at [16]. The Minister accepts that the statement in paragraph 99 of his reasons in the present case cannot be distinguished from the statement in BCR16 which was held to constitute jurisdictional error. I respectfully agree with the decision in BCR16, and in any event I am bound to follow it.

26    While the Minister ventured an argument that the error in the present case is not jurisdictional, counsel concedes that such an argument is “very difficult”. I consider, in the same way as the Full Court found in BCR16, the Minister’s decision to cancel Mr Hamidy’s refugee visa was based on an incorrect understanding of the operation of the Act and he failed to undertake the statutory task in which he was engaged.

27    As the High Court explained in Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 at [25]–[31] and more recently in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, an error is not jurisdictional unless it is material; that is, unless there is a realistic possibility that the Minister would have made a different decision if he had not made the error. In my view the error was plainly material and therefore jurisdictional. The Minister was not required to cancel the applicant’s visa under s 501(3); he had discretion to do so if he was satisfied that Mr Hamidy did not pass the character test and cancellation was in the national interest. Under Article 33 of the Refugees Convention Australia has a treaty obligation not to return (refouler) persons who are owed protection obligations. Mr Hamidy has previously been found to be owed protection obligations, as he was granted a refugee visa. Compliance with international treaty obligations is relevant to the national interest and, as the Minister’s reasons recognise, whether protection obligations are owed may be a factor relevant to the discretion. It cannot be said that consideration of protection obligations that may be owed to the applicant could not realistically have affected the Minister’s decision to exercise his discretion to cancel the applicant’s refugee visa. I am also satisfied that, for essentially the same reasons as in BCR16 (at [44], [48] and [50]), that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the visa cancellation power under s 501(3) of the Act and an exercise of power to grant a visa under s 65. The difference indicates that the error of assuming protection obligations will necessarily be considered is a material one.

Whether relief should be refused in the exercise of discretion

28    The Minister’s primary argument is that, if jurisdictional error is found, the Court should exercise its discretion to withhold relief because there is no utility in quashing the visa cancellation decision.

29    Before turning to the Minister’s submissions it is convenient to set out the areas of agreement between the parties regarding the operation of the Act.

The operation of the Act

30    The Act relevantly provides two different pathways for review of a visa cancellation or refusal decision by the Minister or his or her delegate under the Act. Subject to presently irrelevant exceptions:

(a)    a decision to cancel or refuse a protection visa made relying on ss 5H(2), 36(1B), 36(1C), 36(2C)(a) and (b), or 501(1) is reviewable by the Tribunal in its “General Division” on application under section 500 of the Act: ss 411(1)(c) and 500(1)(b), 1(c), and (4)(c); and

(b)    otherwise, a decision to refuse a visa is a “Part 7-reviewable decision” reviewable by the Tribunal in its “Migration and Refugee Division” on application under s 412 of the Act: s 411(1)(c).

It is common ground that as the delegate’s decision to refuse to grant Mr Hamidy a protection visa did not rely on ss 5H(2), 36(1B), (1C), (2C)(a) or (b) it is a Part 7-reviewable decision.

31    In conducting its review of a Part 7-reviewable decision the Tribunal may exercise all of the powers and discretions that are conferred by the Act on the Minister or his or her delegate: s 415(1). On face value that would include the power under s 65(1)(b) to refuse to grant a protection visa to the applicant on the basis that he failed to satisfy any of the criteria for a protection visa (including, for example, the criteria in sections 36(1B) or (1C)). The parties agree however, that in light of the Full Court’s reasoning in Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107; [1997] FCA 729 (Daher) at 110-111, s 415 must be read in light of sections 412 and 500 of the Act, which set up the two separate pathways for review referred to above.

32    In Daher a delegate of the Minister refused to grant the applicant a protection visa on the basis that he was not a refugee as defined in Art 1A of the Refugees Convention. The applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate’s decision. The RRT refused the application for review, not on the basis that the applicant was not a refugee, but on the basis that the applicant was excluded from protection by Art 1F of the Refugees Convention. Pursuant to the Act at that time, applications for review of decisions to refuse a visa relying on Arts 1F, 32 or 33 of the Refugees Convention were reviewable on application under section 500. The applicant then applied to the Administrative Appeals Tribunal to review the RRT’s decision under s 500(1)(c) of the Act and the Tribunal held that it had no jurisdiction to review the RRT’s decision. The Full Court held that:

…if the decisions which the Refugee Review Tribunal had jurisdiction to review did not include a decision to refuse to grant a protection visa relying upon Arts 1F, 32 or 33(2), then it follows that the Tribunal could not on review adjudicate Arts 1F, 32 or 33(2) issues, even if (or especially if) such issues were advanced for the first time on review.

33    By parity of reasoning with Daher it is common ground that in the present case the Tribunal does not have power to affirm the delegate’s decision in reliance on sections 5H(2), 36(1B), (1C) or (2C)(a) or (b).

34    Initially the Minister relied on “Direction No. 75 - Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)” (Direction 75) to argue that the Tribunal was required to sequence its decision-making so that it first considered whether any Mr Hamidy was owed protection obligations, which would have meant that any non-refoulement obligations owed to him would be considered by the Tribunal. Direction 75 is a ministerial direction made under s 499 of the Act which concerns the assessment of claims for protection visas by applicants who raise character or security concerns. It sets out the order or sequence in which decision-makers must consider protection claims made by visa applicants. In summary it provides that the decision-maker must assess the applicant’s refugee claims and claim to complementary protection by reference to ss 36(2)(a) and (2)(aa), before considering any character or security concerns.

35    The Minister subsequently accepted that Direction 75 is not expressed to and does not apply to the Tribunal; it applies only to delegates of the Minister who consider applications for a protection visa. Direction 75 therefore can have no bearing on the outcome of the Tribunal’s review of the delegate’s decision to refuse to grant Mr Hamidy a protection visa.

36    Finally, the parties agree that in deciding Mr Hamidy’s application for review the Tribunal can have regard to the criteria in clause 866.226 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which includes a requirement that the Minister be satisfied the grant of a visa is in the “national interest”. The parties however differ as to the effect of this. In summary Mr Hamidy contends that the requirement for the Tribunal to be satisfied that the grant of a visa be in the “national interest” means it is open to the Tribunal to refuse his application for a protection visa on the basis of criteria that on their face do not have a relationship to his protection claims, including Australia’s non-refoulement obligations (non-protection criteria). The Minister takes a different view.

The Minister’s submissions

37    The Minister contends that relief should be refused because the Minister’s only relevant error was assuming that Mr Hamidy’s protection obligations would necessarily be considered in a later application for a protection visa. He argues that the question of whether Australia owes Mr Hamidy protection obligations has now been fully assessed by the delegate, who rejected his protection claims.

38    The Minister accepts that the delegate’s rejection of Mr Hamidy’s protection claims does not cure any error in the Minister’s visa cancellation decision, but argues that the rejection is relevant to whether the Court should grant Mr Hamidy the relief he seeks. On this argument, if the Court quashes the Minister’s decision to cancel Mr Hamidy’s refugee visa because the Minister failed to consider any non-refoulement obligations, given the existence of such obligations has now been considered and rejected by the delegate, they would not now carry any weight in the re-exercise of the Minister’s discretion under s 501(3). The Minister contends it would be the “height of artificiality” to set aside the visa cancellation decision in such circumstances.

39    Further, the Minister argues that although the Tribunal’s review of the delegate’s decision is de novo, and it will not be reviewing the delegate’s reasons for error but considering the matter afresh, in practice the Tribunal is constrained by the scheme of the Act to decide the review on the basis of whether or not Mr Hamidy is owed protection obligations. The Minister says it is not open to the Tribunal to decide the review application on another basis.

40    The Minister accepts that the question as to whether granting a visa is in the “national interest” under cl 866.226 of the Regulations involves potentially broad considerations, but says that the Tribunal’s consideration must be consistent with the statutory scheme. The Minister notes that a decision to refuse to grant a protection visa based on the criterion in s 36(1C)(b) (that the person, “having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community”) is not a Part 7-reviewable decision (see s 500(4)) and contends that the Tribunal cannot use the broad criterion of “national interest” to consider issues that are excluded by s 500(4).

41    The Minister argues that on the facts of the present case the only matters that might be relevant to the Tribunal’s consideration of the “national interest” are the same matters that would be considered under s 36(1C)(b), which the Tribunal cannot adjudicate. In particular, the Minister submits:

(a)    a “particularly serious crime” includes a crime of violence that is punishable by imprisonment for a maximum of not less than three years: see s 5M and paras (a)(i) and (b)(iii) of the definition of “serious Australian offence” in s 5. The charge of false imprisonment, of which Mr Hamidy was convicted, carries a maximum term of 10 years’ imprisonment: Crimes Act 1958 (Vic), s 320;

(b)    Mr Hamidy’s criminal offending was central to the Minister’s assessment that it was in the national interest to cancel Mr Hamidy’s visa; in particular his criminal history, past associations with outlaw motorcycle gangs and the risk to the Australian community; and

(c)    each of the factors relied on in the s 501(3) decision would be dealt with at the protection visa stage under s 36(1C)(b). That is plainly the case with Mr Hamidy’s criminal history and the risk to the community. His connection to outlaw motorcycle gangs is relevant to whether he presents a danger to the Australian community, so that factor comes within s 36(1C)(b) as well.

42    The Minister contends that, while the concept of “national interest” in cl 866.226 and danger to the Australian community in s 36(1C)(b) may not completely overlap in all cases, on the facts of the present case they do. As the Tribunal is precluded from considering any matters under s 36(1C)(b), the Minister argues that the Tribunal is prevented from considering those same matters under the rubric of “national interest”. Although there are other “non-protection” criteria in item 866 of the Regulations (such as the medical criteria in cl 866.223-224B) there is no suggestion that any of these other matters is relevant to Mr Hamidy.

43    For these reasons the Minister contends that the Tribunal will be required to decide Mr Hamidy’s application for a protection visa by reference to whether he is a person to whom Australia owes protection obligations, and it will not be open to the Tribunal to dispose of the application by determining that it is not satisfied that a grant of a protection visa is in the national interest.

44    In the alternative, the Minister argues that there is no more than a remote and theoretical possibility of the Tribunal refusing the visa on the grounds of national interest. The Minister says he is not aware of any decision to refuse a protection visa on national interest grounds, and argues this remote possibility should be discounted because the task of the Tribunal is to review the decision that engaged its jurisdiction: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) at [133].

Consideration

45    It may be appropriate to exercise the discretion to refuse relief where granting relief would be futile; that is, no useful result could ensue: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [28]. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala), Gaudron and Gummow JJ noted at [56] that:

Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said [at 400]:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”

46    In assessing whether there is utility to a grant of relief a question arises as to whether the court should adopt a “backward” or “forward”-looking approach. A backward-looking test requires futility to be assessed at the time the decision-maker made its decision while a forward-looking test requires futility to be assessed at a time in the future when any reconsideration or rehearing takes place. In many cases the test applied will make no difference to the result: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 at [49] (Lee) (Besanko J).

47    In Giretti v Federal Commissioner of Taxation (1996) 70 FCR 151 at 165, cited with approval in Lee, Lindgren J favoured a backward-looking approach, but highlighted that the overarching question is whether there was or is no possibility of a different result:

No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result (cf the section heading in Woolf and Jowell, De Smith’s Judicial Review of Administrative Action (5th ed, 1995), p 498, “Where the defect of natural justice has made no difference to the result; where to require fairness or natural justice would be futile; where no prejudice has been caused to the applicant” and discussion following). At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been.

48    The present case has some similarities with Kabir v Minister for Immigration and Citizenship [2010] FCA 1164 at [52], where Siopis J said:

…in this case, the jurisdictional error did not comprise a denial of procedural fairness by the Tribunal. The jurisdictional error comprised a misconstruction of a statutory provision. Mr Kabir had a hearing before the Tribunal and had the opportunity to put all the evidence upon which he wished to rely, to the Tribunal. The circumstances were very different to those in the Lee case. In this case, the Federal Magistrate was able to assess the effect of the jurisdictional error on the impugned decision, and conclude that even if there had been no jurisdictional error, the Tribunal would, on a proper construction of the Regulations, have been obliged to refuse the review application. (See, Aala, per Gaudron and Gummow JJ at [57]-[58].)

49    I am not satisfied that in the circumstances of the present case, adopting either a forward-looking or backward-looking approach, there is no possibility of a different result such that a grant of relief has no utility.

50    I say this, first, because I do not accept the Minister’s contention that the “national interest” criterion in cl 866.226 is subsumed within the s 36(1C)(b) criterion which the Tribunal is prevented from considering. The power to refuse a visa on the basis of the “national interest” criterion in cl 866.226 is broader than the power to do so under s 36(1C)(b). In theory it is possible for the Tribunal to decide that it is not in the national interest to grant Mr Hamidy a protection visa for reasons which fall outside s 36(1C).

51    On the facts of the present case I am also of the view that it may be open for the Tribunal to conclude that it is not in the national interest to grant Mr Hamidy a protection visa, for reasons which do not fall within s 36(1C)(b). One example of this is the material which points to Mr Hamidy associating with an outlaw motorcycle gang and also associating with a person who has been involved in criminal conduct, described in the Minister’s reasons as “criminal associations”. If in deciding Mr Hamidy’s application for review the Tribunal accepts that Mr Hamidy has “criminal associations” it may be open for it to conclude that the grant of a visa is therefore not in the “national interest”. In this regard it is noteworthy that the asserted “criminal associations” were significant to the Minister’s decision that it was in the national interest to cancel Mr Hamidy’s refugee visa in the first place. Any such associations, which it should be noted are not the subject of any criminal convictions, do not fall within the terms of s 36(1C)(b) and in my view there can be no prohibition on the Tribunal considering them as part of the review before it.

52    Second, I do not consider that Daher requires the outcome for which the Minister contends. Daher is authority for the proposition that the Act notionally divides decisions in which the decision-maker refuses to grant a protection visa into two distinct types, being (putting to one side irrelevant exceptions): (a) those relying on ss 5H(2), 36(1B), (1C) or (2C)(a) or (b), or under s 501(1) of the Act; and (b) those relying on other parts of the Act. Sections 411(1)(c) and 412 grant power to the Tribunal to review a decision to refuse to grant a protection visa as a Part 7-reviewable decision, except where the decision is made in reliance on ss 5H(2), 36(1B), (1C) or (2C)(a) or (b).

53    For the purposes of the present case, Daher means that the Tribunal is prevented from adjudicating s 36(1C)(b) “issues”. The issue that arises under s 36(1C)(b) is whether the Minister considers, on reasonable grounds, that the visa applicant is a danger to the Australian community, having been convicted by final judgment of a particularly serious crime. It is another thing to suggest that a factual matter which is relevant to such an issue cannot be considered by the Tribunal where it is also relevant to the “national interest” criterion. I do not accept that the Tribunal will be precluded from considering factual matters which are relevant to its review of a Part 7-reviewable decision under one provision just because those factual matters overlap with matters that may be relevant to consideration under another provision that is not before the Tribunal. I readily accept that for the purposes of the Tribunal’s review of a Part 7-reviewable decision it cannot rely on those provisions excluded by the grant of power, but that does not mean it is precluded from considering relevant factual matters.

54    For these reasons I am not persuaded that because in deciding Mr Hamidy’s review application the Tribunal cannot adjudicate s 36(1C)(b), there is no utility in quashing the Minister’s visa cancellation decision. In reviewing a Part 7-reviewable decision the Tribunal may exercise all the powers and discretions of the original decision-maker under s 65 of the Act: s 415(1). In Shi (at [135]), Kiefel J (as her Honour then was) emphasised that the Tribunal stands in the shoes of the original decision-maker:

In Strange-Muir v Corrective Services Commission (NSW) McHugh JA held that there was a presumption, which operated as a rule, that an appeal to an administrative tribunal against an administrative decision would not usually involve a grant of jurisdiction to make a fresh or original decision. The respondent relied upon this decision as supporting a more limited role for the Tribunal, one concerned with ascertaining whether the decision under review was attended with error. As McHugh JA acknowledged, however, any such presumption gives way to contrary statutory indications. There can be little room for its operation where, as here, the Tribunal is expressly provided with the powers of the original decision-maker and its decision, to vary or substitute the original decision, is taken to be that of the original decision-maker.

(Emphasis added, citations omitted.)

55    As Direction 75 does not apply to the Tribunal, it is not required to consider protection obligations first, and since consideration of the “national interest” may well include criteria that are not related to protection obligations it will be open to the Tribunal to affirm the delegate’s decision to refuse to grant a visa on non-protection grounds. If that occurs, any non-refoulement obligations which Australia owes to Mr Hamidy will not have been considered by the Tribunal. It is not necessary or appropriate for this court to speculate as to what these non-protection grounds might be or as to the future course of decision-making: DOB18 v Minister for Home Affairs [2018] FCA 1523 (DOB18) at [35] (Griffiths J).

56    The Minister argues that in deciding whether to grant relief the Court should take into account the fact that the delegate has found that Mr Hamidy is not owed protection obligations. That approach is neither a backwards-looking approach focused on the date of the Minister’s decision, nor a forward-looking approach focused on a notional date in the future when the Minister makes a fresh decision. Instead it focuses on the intermediate date of 30 August 2018 when the delegate refused to grant a protection visa. Even so, I accept that Kabir does not suggest a rigid dichotomy between a forward-looking or backward looking analysis, and the choice depends on the facts and circumstances of the case.

57    I am not persuaded that in the circumstances of the present case it is appropriate to decline relief on the basis that the delegate has decided that Mr Hamidy is not owed protection obligations when there is an application for review to the Tribunal on foot, which will decide that question de novo. Nor do I accept the Minister’s submission that “the assumption made by the Minister…has been proved correct”.

58    Applying a backwards-looking approach by looking back to the date of the Minister’s decision, it cannot be said that no other outcome was possible if the Minister had not misunderstood that Mr Hamidy’s protection claims would not necessarily be considered as part of any protection visa application he made. The Minister concedes that his decision was affected by the sequencing misunderstanding identified in BCR16, and Mr Hamidy is entitled to relief. I have no difficulty in accepting that the thrust of the Minister’s reasons for refusal was that the national interest outweighed the other factors considered. However, because of his sequencing misunderstanding the Minister did not consider whether Mr Hamidy might suffer significant harm if he were returned to Iraq which might have tipped the balance in the exercise of the Minister’s discretion as to whether or not to cancel his visa.

59    Applying a forward-looking approach by looking forward to the notional date upon which the Minister might again consider cancelling Mr Hamidy’s refugee visa, it is also not possible to say that the Minister will inevitably reach the same decision. It is plain enough, having regard to Mr Hamidy’s substantial criminal record and history of criminal offending, that it will be open to the Minister to conclude that his visa should be cancelled, but that is not inevitable. It cannot be excluded that, if the Minister again considers cancellation of Mr Hamidy’s visa under s 501(3), he may provide further submissions or evidence that persuades the Minister to exercise his discretion and reach a different decision, or by that time there may have been some material change in Mr Hamidy’s circumstances.

60    Ground 1 of the application for review is made out and it is appropriate to quash the Minister’s decision.

GROUNDS 2 AND 3

61    Given my decision on Ground 1 it is unnecessary to decide Grounds 2 and 3.

62    Under Ground 2 Mr Hamidy contends that the Minister fell into jurisdictional error by failing to appreciate that, as the majority in BCR16 said, the “circumstances in which consideration of non-refoulement occurs are ‘quite different’ and ‘quite distinct’ as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act”: at [48], [49]. That is, the Minister wrongly assumed that Mr Hamidy’s protection claims would receive the same consideration in the s 65 process as the revocation process under s 501(3). Similar arguments were made in another case before this Court where judgment is reserved (Muhumed Hassan Omar v Minister for Home Affairs, VID 387 of 2018), and in DOB18 Griffiths J cast doubt on their availability in comparable circumstances. In DOB18 the applicant argued that the Minister had erred in stating that protection obligations would be “fully” considered. Griffiths J rejected that argument (at [37]), stating that it was premature to speculate whether or not full consideration would be given to Australia’s non-refoulement obligations in respect of any future visa application by the applicant. It is preferable that this question be left to a case where it is necessary to decide.

63    Under Ground 3 Mr Hamidy contends that the Minister incorrectly assumed that international non-refoulement obligations would be considered in the event that the applicant made an application for a protection visa. He argues that is not so, as the criteria for a protection visa under section 36(2) substantially differ from, and do not reflect, Australia’s non-refoulement obligations. He says that the Minister’s assumptions are erroneous because the scope of Australia’s non-refoulement obligations no longer reflects the “protection criterion” now embodied in section 36(2) of the Act. This is an important question, which should be decided in a case where it is necessary to do so.

CONCLUSION

64    I have made orders to quash the Minister’s decision of 18 May 2017 to cancel Mr Hamidy’s refugee visa and for the Minister to pay Mr Hamidy’s costs. I have not granted the interlocutory injunction to restrain the Minister from giving effect to that decision, which Mr Hamidy seeks. I have no reason to think that the Minister will disregard the order and there is no proper basis for granting injunctive relief.

Associate:

Dated:    27 February 2019