MZXOT v Minister for Immigration and Citizenship [2001] HCATrans 74 (24 March 2011)

Last Updated: 25 March 2011

[2011] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M 36 of 2007

B e t w e e n -

MZXOT

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 MARCH 2011, AT 9.35 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI: If the Court pleases, I appear with MR J.C. TOWNSEND for the plaintiff. (instructed by Victoria Legal Aid (Civil Law Section))

MR R.C. KNOWLES: If your Honour pleases, I appear for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes. Ms De Ferrari, can I just sort out from the rather voluminous file what bits of paper you say I should have available to me. Working backwards, I have an outline of oral submissions that was provided by fax I think either last night or this morning.

MS DE FERRARI: Yes.

HIS HONOUR: I take it Mr Knowles has seen that, has he?

MR KNOWLES: Only momentarily, your Honour. I have just had a copy handed to me by my instructor this morning.

HIS HONOUR: Yes. Well, there is that. There are then, among the submissions, working backwards in time, I have plaintiff’s reply submissions dated 12 November 2010, I have defendant’s further submissions dated 29 October 2010, I have defendant’s outline of supplementary submissions dated 14 September 2010, I have further submissions of the plaintiff dated 7 September 2010 and then before that I have defendant’s outline of submission of 15 March 2010 and plaintiff’s outline of submissions 15 March 2010. Is that all of the submissions that I should have available?

MS DE FERRARI: Yes, your Honour. I appreciate it is a surplus of written submissions.

HIS HONOUR: There we are. I have read those and having regard to the outline of written submissions that you advance, may I just understand or make sure that I do understand a couple of things. Firstly, should we be looking at reprint 10 of the Act?

MS DE FERRARI: In my submission, yes, your Honour.

HIS HONOUR: It is the bane of our life to know which version of the Act we should look at, but I think reprint 10 reprinted on 1 July 2006 would be the right one.

MS DE FERRARI: Yes. We have indicated that in our list of authorities. I do not think that is at issue.

HIS HONOUR: Yes. Then, although in one of those submissions to which I have referred, application was foreshadowed for leave to amend the process raising matters under sections 56, 57 and, am I right, 51A, or there was a third one, was there not?

MS DE FERRARI: It really was just 56, I think, your Honour, in light of the decision of this Court in Saeed, and it was better particularisation of what was otherwise already there.

HIS HONOUR: Yes. Now, before we come to deal with that, Mr Knowles, is there any objection to the plaintiff having leave to amend in the fashion indicated in whichever of the several submissions it was that contained it?

MR KNOWLES: Your Honour, that is something that is set out in the written submissions to the effect that there is no objection in that regard. Obviously there is an issue that arguably precedes that relating to the enlargement or extension of time and I should just indicate for the sake of completeness that there is also no objection to the grant of an extension of time.

HIS HONOUR: Yes, very well, that clears the deck of those issues. Now, Ms De Ferrari, can I just look for a moment at 57 because it occurs to me that it may be that the point may be narrowly identified and narrowly stated. As I understand it, the Minister does not dispute that the delegate making his decision had before him or her the overseas file, the Pretoria file I think is a description it has, which everyone seems to assume contained the visitor visa application and contained within it therefore statements that have come to be called the employment history matters, is that right?

MS DE FERRARI: I believe that is so. It must have been accepted because it was part of the case that your Honour stated. There appears to be an issue from the Minister as to exactly, in terms of information, what has derived from those and whether all of those documents along with some of those that necessarily are referred to by way of referring to his employment were before the delegate. The other point is that the plaintiff says that there is broader information than just his employment information that is in those documents and that includes where his employment was, for how long and what his residential address was given in that – but, broadly speaking, that is the position, your Honour.

HIS HONOUR: Now, as I understand it, one argument that is made on your side of the record runs more or less along these lines. Statements that the plaintiff was employed at the Nigerian Institute for Public Health, et cetera, did not constitute information that was given by the applicant for the purpose of the application. It did not constitute that because it was given for the purpose of some other application, namely, a visitor visa. Is that step part of the argument?

MS DE FERRARI: That is and I believe in the first set of written submissions that was accepted by the Minister.

HIS HONOUR: Yes. The area for debate between the parties, as I understand it, having particular reference to the defendant’s further submissions of 29 October 2010, is whether that information satisfies 57(1)(a), that is, is information that “would be the reason, or a part of the reason, for refusing to grant a visa”.

MS DE FERRARI: That is the only issue.

HIS HONOUR: Yes. Now, you refer in that respect to SZBYR, is that right?

MS DE FERRARI: Yes, your Honour. So does the Minister. We are sort of ad idem as to what the authority on the point is.

HIS HONOUR: SZBYR (2007) 81 ALJR 190, amongst other reports, but particular reference is made to what is said in paragraph [17] of SZBYR, is that right?

MS DE FERRARI: Yes, your Honour.

HIS HONOUR: In particular, I would assume, you place some emphasis upon the proposition appearing part way through paragraph [17] that:

The use of the future condition tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning - - -

MS DE FERRARI: That is so, and I think again the Minister accepts that. We also go on to sort of say that is the test, but in this case, which is not a credibility case like SZBYR and the others, if one then actually looks at the actual reasons for decisions, it just is confirmatory about what we say was the test or should have - - -

HIS HONOUR: Well, judged prospectively, the fact that a person held a position of that character requiring training of the kind implicit in holding a position of that character might be, so your argument runs I understand, information that would tend to suggest that that person has risen to that level with that education without his religious beliefs being an impediment.

MS DE FERRARI: Your Honour, it appears that the word “might” is problematic and we need to say with “would” – that is the case of this Court, your Honour was not part of that decision, that my learned friend relies on, but with that in mind, yes, in the statutory context would, but it goes further than that and it is not just about not having suffered religious discrimination. It is about, well, can the plaintiff be that person at all.

HIS HONOUR: I know you now elaborate it in particular ways about identity, but even without that elaboration there appears to be issue joined between you about whether that information would be the reason or part of a reason for refusing to grant the visa judged they say prospectively and you say the proof of the pudding is in the eating; in fact, it was.

MS DE FERRARI: Yes. I mean, the ground of religion was accepted to be a Convention ground, and so the issue was, well, do you have a well founded fear on that basis and clearly, as your Honour has indicated, a matter that would judged prospectively affect that determination included the career path and not having had any problems in achieving it.

HIS HONOUR: Yes. I think it may be of most assistance, Ms De Ferrari, if I hear from Mr Knowles.

MS DE FERRARI: Yes, your Honour.

HIS HONOUR: Yes, Mr Knowles. I have perhaps unwisely attempted to unduly constrict the debate, the wisdom of it we will see, but constricted as it is so far, what do you say about it?

MR KNOWLES: Yes. Your Honour will have seen from the written submissions it is submitted that that information was not something that would form the reason or a part of the reason for refusing to grant the visa in this case. In that respect, your Honour, if one goes further in that paragraph that your Honour just referred to in SZBYR and has regard to what was said towards the bottom of the paragraph concerning the information in that case not containing in its terms “a rejection, denial or undermining of the appellants’ claims to be person to whom Australia owed protection obligations”, it is submitted that in this case when one has regard to what the particular plaintiff’s claims were, this information did not constitute any rejection, denial or undermining of those - - -

HIS HONOUR: Why did it not undermine?

MR KNOWLES: Your Honour, because the claims in this case did not relate to any discrimination or obstruction on the part of the government. That was not something that the plaintiff ever claimed in the protection visa application form and, in the circumstances, the findings that were made in respect of this particular issue, and there is only a sentence devoted to it, I should add, your Honour, those findings were about matters that were essentially otiose to the determination of the claims and therefore the consideration of the relevant criteria in this case.

If I can just turn to the statutory context in which the decision was made, obviously section 65 requires that there be satisfaction about the visa criteria. Then one turns to section 36 of the Migration Act which sets out the broad criteria in relation to there being a need for the Minister to be satisfied as to the existence of protection obligations in respect of a person pursuant to the Refugees Convention. Then, when one has regard to the relevant subclass in this case, the subclass being found in Subclass 866 of Schedule 2 to the Regulations, that refers to there being a need for a person to make claims at the outset as to the reason why the Refugees Convention is engaged.

Now, in this case the claims, as your Honour will have seen having regard to the materials in the case stated book, in particular, between pages 30 and 34 which are found within the protection visa application, in particular Part C, do not refer to any harm being feared at the hands of the government. The harm that is feared expressly relates to harm from Muslim groups on the basis of the plaintiff being a Christian in Nigeria. So in this case, your Honour, it is submitted that this information was not something that was causally connected with the determination of the relevant statutory criteria, in particular, the plaintiff’s claims to be a refugee. That is assessing matter, we would say, prospectively having regard to the statutory context, namely, section 36 of the Migration Act, and the relevant provisions in the Regulations that set out criteria concerning the particular subclass being Subclass 866.

I should just add one point to that, your Honour. This particular information, the so-called employment information – I understand there might be a dispute about the accuracy of using that term, but, in any event, this particular information was not something in the Minister’s submission which gave rise to any claim to being a refugee and nor did it undermine the relevant claims that had been made by the plaintiff as to why he ought to be found to be a refugee.

HIS HONOUR: Could I just test that a moment.

MR KNOWLES: Yes, your Honour.

HIS HONOUR: Abbreviation always carries great risk, but at its most abbreviated form, the claim in the protection visa application was “I am a businessman who is at the risk of the mob.” That is a rather colourful and unduly abbreviated caricature of the claim, is it not, but sufficient perhaps for the purposes?

MR KNOWLES: “I am a Christian who is at risk of the mob”, in my submission, “I happen to also be a businessman and the mob has attacked my business premises and harmed my staff.”

HIS HONOUR: If the decision-maker were to conclude this man says he is a businessman and is a Christian at the risk of the Muslim mob, no he is not, he is a doctor who works for the Nigerian Institute for Public Health, would that be a reason or part of a reason for rejecting the claim to fear persecution?

MR KNOWLES: Well, in that regard, your Honour, this actually anticipates the point that I was just about to go to on this issue and that concerns a matter that was raised by my learned friend in respect of the distinction between “would” and “might” or “could” and that was something that was alluded to by this Court in the case of SZLFX.

HIS HONOUR: What is the reference?

MR KNOWLES: Yes. It is at tab 8 of the Minister’s folder of authorities and the reference is [2009] HCA 31; (2009) 238 CLR 507. In consideration of section 424A, your Honour, which I say broadly is analogous to this provision albeit in the context of proceedings before the Refugee Review Tribunal, your Honour will see that there was some discussion of that and, in particular, at paragraph 25 the Court endorsed an observation made by Justice Heerey in MZXBQ v Minister for Immigration and Citizenship stating that:

s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.

Now, your Honour, my learned friend has usefully provided a copy of Justice Heerey’s reasons for judgment and perhaps if I could briefly take your Honour to that now. It is at tab 6 of the plaintiff’s folder of authorities and the relevant paragraphs - - -

HIS HONOUR: Do I have a plaintiff’s bundle? Thank you. Tab 6?

MR KNOWLES: Yes, your Honour. The relevant paragraphs are at paragraphs 27 through to 29. If I can go back to your Honour’s observation about what would potentially be a matter that might arise for consideration by a delegate, that essentially relates to issues going to credibility, it is submitted, on the basis that this information would be inconsistent with the claim that he had suffered some harm and yet he was able to rise through the ranks, so to speak, in an educational and vocational way.

HIS HONOUR: Well, it may wear that face, I understand that, but we should not, I think, fall for the trap of assuming that everything can wear only the one aspect.

MR KNOWLES: No, your Honour.

HIS HONOUR: The information may be capable of characterisation in a number of ways, I think.

MR KNOWLES: Yes, and perhaps by reference to matters other than the prospective, it is certainly not a matter that all of that characterisation in the delegate’s mind in this decision, it is submitted, on the basis that although there is a reference to it in the delegate’s decision, it was a reference which was ultimately otiose to the determination of the plaintiff’s claims.

HIS HONOUR: I understand you to say that and I understand why you say that, but is that proposition any more than saying, “I can identify a chain of reasoning that would be sufficient to arrive at the conclusion which does not include this particular fact?”

MR KNOWLES: Yes, I understand your Honour’s point.

HIS HONOUR: The bottom line you have to confront is, if it was not relevant, why mention it, and that is a rather awkward forensic difficulty.

MR KNOWLES: I accept that, your Honour, but it does certainly happen from time to time in administrative decision-making that matters are perhaps referred to that are otiose to the determination of the statutory issues.

HIS HONOUR: It certainly happens in judicial decision-making.

MR KNOWLES: But if I could perhaps briefly return to the decision of his Honour Justice Heerey and your Honour will see at paragraph 29 his Honour stated again this distinction between “would” as opposed to “could” or “might” and then went on to say:

This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant’s claims.

Certainly I would call that in aid of the position advanced by the Minister and it is submitted that that is something that obviously was given consideration by this Court in SZLFX and, it is submitted, endorsed, although obviously what is expressly endorsed there is the reference by his Honour Justice Heerey to a distinction between “would” as opposed to “could” or “might”. So it is submitted that in this case, even looking at the matter prospectively, without regard to the actual reasoning employed by the delegate, this information did not constitute in the terms of what is said in SZBYR at paragraph [17] a rejection, denial or undermining of the appellant’s claims to be a person to whom Australia owned protection obligations. Unless there is anything I can say further on the matter, your Honour, that is all I was proposing to advance in respect of those issues.

HIS HONOUR: Yes, thank you, Mr Knowles. Yes, Ms De Ferrari.

MS DE FERRARI: Your Honour, can I restrict myself at the moment to the narrow issue that your Honour has indicated which, going back through the submissions, your Honour will see was the original issue. Context in these types of cases is always important, particularly when one looks at what the High Court has said in SZBYR and what then it said in the later case of SZLFX. Inconsistencies in those cases refer to inconsistencies in the applicant’s evidence part of the application that was before the decision-maker, that is, its inconsistency between what you have said in your protection visa application and in the general case where a case goes to merits review, what you are now saying to the Tribunal.

All of those cases, the two High Court cases an the case by his Honour Justice Heerey are those sorts of cases and it is in that context that the Court is talking about mere inconsistencies are not within the context of information in the statute context of section 57 no matter how broadly you give the meaning to the term “information” in that section. This is not this case. In this case the information is from another person, admittedly its documents that relate to the plaintiff, but it is from another source and it cannot just wear, as your Honour has indicated, the hat of possibility inconsistencies.

Yes, the delegate may have gone down the route of saying, “I disbelieve you because you had previously said that”, whether he could do that or not without affording an opportunity to be heard, that is another matter, but it could have gone down that way, but it is more than that. He can wear another hat and that is he can wear the hat of, “Well, I am going to accept it.” That is how his Honour Justice Heerey talks about the two hypotheticals of paragraph 27 of that decision. If your Honour still has it, it is MZXBQ.

HIS HONOUR: Yes. Which paragraph?

MS DE FERRARI: Paragraph 27. Your Honour will see that there Justice Heerey looks at two possibilities. The first one is:

Let it be assumed an applicant claimed fear of persecution a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian - - -

then his Honour applies the reasoning –

If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa.

Then he does the other hypothetical, in the same paragraph –

By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility.

Now, this case is the first example that his Honour is considering. There is a statement by someone else saying, “No, that is not true. What you are claiming in your application for protection visa is not true.” There is the complication here about how that statement is obtained and then contained in an earlier application by the same applicant, but that is the first example that his Honour is considering. The task, as his Honour then set out, probably in the most detail in the next paragraph starting from line 3, his Honour is referring to section 424A, but that is the same as section 57. His Honour says:

The meaning conveyed by s 424A(1)(a) is that the Tribunal considers that if the information is true (conditional clause), it would be the reason, or a part of the reason, for affirming the decision (host clause).

In this case the task viewed prospectively before the decision was made is if the delegate – should have, because the delegate did not do that, should the delegate have at the relevant time considered it, that if the information was true, it would be part of the reason for affirming the decision. Now, at the relevant time, if the information was true, it would have been part of the reason because it would have identified someone else, possibly inconsistent with what he was saying, but if not inconsistent, then adding to the picture of what he was saying as opposed to precisely what the applicant has said in

the statutory context which required him to complete the forms required by regulation 866. That is the problem.

It is unusual case because the delegate accepted all as true. It is possible that impliedly the delegate all as true that he was also a businessman living somewhere else and having shops and all the other matters that he claimed. So when one looks at those cases, that is the context in which the courts are saying inconsistencies by which the decision-maker ultimately finds against you, arising from all that happened in the context of that particular decision, are just steps in the process of decision-making are not something about which to ensure procedural fairness the decision-maker is obliged to give notice. On that narrow issue, your Honour, those are the submissions of the plaintiff.

HIS HONOUR: Yes, thank you.

In April 2007, the plaintiff filed an application in this Court for an order to show cause seeking mandamus, certiorari, declarations and associated relief in respect of the decision of the delegate of the Minister made on 18 April 2006 to refuse to grant the plaintiff a protection visa. The plaintiff sought to have that proceeding remitted to the Federal Magistrates Court. The Minister contended that the Migration Act 1958 (Cth) (“the Act”) and, in particular, section 476(2) of the Act, prevented remitter. The plaintiff alleged, among other things, that section 476(2) of the Act and associated provisions were invalid to the extent that they precluded remitter and further submitted that this Court had an inherent or implied power to remit proceedings brought in the Court’s original jurisdiction under section 75(v) of the Constitution to another Court.

With the consent of the parties, I stated a case for consideration of the Full Court asking, in effect, whether the impugned provisions of the Act were valid and whether this Court had inherent or implied power of the kind alleged. On 18 June 2008, the Court answered the questions reserved in the stated case adversely to the plaintiff and published its reasons for decision; see MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 610, [2008] HCA 28.

No further step was taken in the matter until it was brought on for further hearing of the application in March 2010. On that day, with the concurrence of the parties, I stood the matter out of the list pending the Court’s decision in Saeed v Minister for Immigration and Citizenship. Judgment in Saeed was delivered on 23 June 2010; see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [2010] HCA 23.

The application now comes on for further hearing. In written submissions filed on 7 September 2010 the plaintiff sought leave to amend the initiating process. That application, and an associated application for an extension of time within which to make the necessary applications, were not opposed by the Minister and the plaintiff should have the leave and the extension of time which he seeks.

The amended grounds advanced on behalf of the plaintiff were all advanced under the general rubric of there having been a denial of natural justice. Reference was made, in the amended grounds, to breaches of sections 56, 57 and 54 of the Act, but, as has been made plain during the course of argument, it suffices for present purposes to confine attention to the alleged contravention of section 57.

The facts and circumstances which give rise to the proceedings in this Court were generally described in the joint reasons of Chief Justice Gleeson, Justice Gummow and myself in the earlier proceedings in the Full Court in this Court in MZXOT; see [2008] HCA 28; (2008) 233 CLR 601 at 614 to 615, paragraphs 6 to 9. Not all of those matters need be repeated here. It is, however, important to say a little more about the facts which give rise to the particular issue about the engagement of section 57 of the Act which has been agitated in the hearing today.

The plaintiff, a citizen of Nigeria, entered Australia in February 2006 as the holder of a Business (Short Stay) visa. He had applied for that visa on 17 January 2006 while outside Australia. The application for the Business (Short Stay) visa had said that the plaintiff was a medical practitioner who had been employed by the Nigerian Institute for Public Health for over nine years and that he had worked at that institute as a senior medical researcher. The purpose of the visit to Australia on the Business (Short Stay) visa was described as being to attend a short course about “public health in refugee settings”.

On 15 March 2006, after he had arrived in Australia, the plaintiff made an application for a protection visa. In that application, in response to a question asking for the occupation or profession he had followed before coming to Australia, the plaintiff stated “health worker” and in response to a question requesting all details of past employment he stated “business owner”. The plaintiff stated that he had entered Australia as a visitor for business purposes.

The application for a protection visa did not refer to employment at the Nigerian Institute for Public Health. It did not refer to him as being a medical practitioner or as holding a position at the Nigerian Institute for Public Health as a senior medical researcher. In response to the question, “Why did you leave that country”, that is to say, Nigeria, the plaintiff wrote:

I came to Australia because of my business activities. Before my departure from Nigeria my life and business has been subject to destruction and threatened and my business in Kaduna has been set on fire by the Muslim gangs – groups in because of my religious belief and faith. When I arrived in Australia during the Nigerian Muslims protesting, caricatures of the prophet Mohamed attacked Christians and burned churches killing innocents, people and my business was burn also and family was fled to Ibadan. I’m afraid to return back to the country because my life is in a danger because I’m a Christian by faith and the Muslims will kill me if I return to the country. I’ve lost all my business and house because they have burnt down my business, including two staff working for us. I have two businesses in Maiduguri. During the recent Muslim riots in Nigeria my shops were burnt down and two of my staff was killed and I escaped with my wife and son through the back door. This happened in Kaduna before the riot started slowly and built up, but the Muslim mobs burnt down houses and shops before I left for Australia. While I’m in Australia my friend told me not to return during my phone call to find out the situation of the riots in Nigeria and are now subject to torture and persecution if I return both to that country by the Muslim groups attacking every Christian person in Nigeria. I decided to apply for Australia protection because I cannot return because of the reason that I will be subject to persecution, torture and even killed if I return back to the country.

The delegate of the Minister who considered the plaintiff’s application for a protection visa had, at the time of making the decision, material that included what was described as “overseas file – Pretoria”, a file which the parties in the present proceeding accept contained a copy of the plaintiff’s application for the Business (Short Stay) visa I have earlier described. In the course of the reasons for the delegate’s decision, the delegate referred to information that evidently came from the plaintiff’s application for a Business (Short Stay) visa. In that decision the decision-maker said, amongst other things:

Information taken from the overseas file states that the applicant has been employed for over nine years by the Nigerian Institute for Public Health and holds the position of senior medical researcher. His son and wife are residing with his mother-in-law. The applicant has been able to study and reach this level of employment without any obstruction from the government due to his religion.

It is not disputed that the delegate did not inform the plaintiff that in making a decision the delegate intended to rely on information about the plaintiff’s employment with the Nigerian Institute for Public Health . It was also accepted that the delegate did not ensure “as far as is reasonably practicable” that the plaintiff understood why that information was relevant to consideration of the application for a protection visa nor did the delegate give the plaintiff an opportunity to comment on the information concerning his employment that was set out in the Business (Short Stay) visa. That is, the Minister accepted that if section 57 of the Act applied to that information, the delegate’s decision was affected by jurisdictional error.

It is important to set out the relevant terms of section 57(1) and (2) of the Act. They provided at relevant times:

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for refusing to grant a visa; and

(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c) was not given by the applicant for the purpose of the application.

(2) Subject to subsection (3), the Minister must:

(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c) invite the applicant to comment on it.

The qualification to the engagement of section 57(2) provided by subsection (3) need not be considered.

The Minister submitted that section 57 of the Act was not engaged. The Minister submitted that the information taken from the application for a Business (Short Stay) visa was not relevant information and it was not relevant information because it was not information that “would be the reason, or a part of the reason, for refusing to grant a visa”. The Minister submitted that the information in question was not of that character because a chain of reasoning could be identified in the delegate’s decision that supported the conclusion that Australia did not owe the plaintiff protection obligations and was a chain of reasoning that did not rely upon any of the disputed information. That is, the Minister submitted that the:

delegate’s reference to the [disputed] information was . . . unnecessary and irrelevant to the determination of the plaintiff’s claim to be a refugee. It was causally unrelated to the findings which rejected the plaintiff’s claims. Those findings were based on country information and not matters specific to the plaintiff.

That submission stemmed from, or at least was related to, the further point made on behalf of the Minister that the claim which the plaintiff had made in his claim for protection visa was not a claim founded upon any allegation of discrimination on the part of the government against him, but it was a claim to fear violence on account of his religious belief because of conduct by mobs of people acting outside control by the government. Thus, as I understood the argument to proceed, the Minister submitted that whether the plaintiff was or was not a person who had been employed at the Nigerian Institute for Public Health was a matter irrelevant to whether, as he claimed, he had a real risk of persecution on account of his religious belief because he was at risk of mob violence founded on sectarian lines.

The answer to this proposition is supplied by consideration of the way in which section 57 is to be engaged in light of what this Court has held on that subject, first, in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [2007] HCA 26 and, subsequently, in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507, [2009] HCA 31. In SZBYR, five members of the Court said of a provision cast in relevantly identical terms to those now under consideration in relation to section 57[2007] HCA 26; , 81 ALJR 1190 at 1195, paragraph [17] that:

The use of the future conditional tense (would be) –

in the expression “would be the reason, or a part of the reason for affirming the decision that is under the review” or, as here, “for refusing to grant a visa” –

rather than the indicative strongly suggests that the operation of s 424A(1)(a) –

and also section 57(1)(a) –

is to be determined in advance – and independently – of the Tribunal’s –

or delegate’s –

particular reasoning on the facts of the case. Here, the appropriate criterion –

which is to say, the criterion for grant of a visa –

was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.

Subsequently, in SZLFX, this Court emphasised[2009] HCA 31; , (2009) 238 CLR 507 at 514, paragraph 25, that in considering section 424A and, I would add, in considering section 57, it is important to observe that the relevant provision:

speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for –

in the case of section 424A –

affirming the decision under review –

or, in the case of section 57(1), refusing to grant a visa. In SZLFX, the Court referred approvingly to the earlier decision of Justice Heerey in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at 492, paragraph 29.

In light of what has been said in those cases, it may readily be accepted that the bare fact that a delegate of the Minister has chosen to refer to information in the record of decision does not, without more, demonstrate that the information mentioned in the decision is relevant information within the terms of section 57(1) of the Act. As was emphasised in SZBYR, the definition of “relevant information” contained in section 57(1) requires consideration prospectively not retrospectively. The question is, is the information in question information that the Minister considers would be the reason or a part of the reason for refusing to grant a visa?

Reduced to its essentials, the information concerning the plaintiff’s past employment with the Nigerian Institute for Public Health can be described as being that the plaintiff had described himself as a doctor employed in a senior position with what on its face appeared to be a national institute of Public Health. The claim which he made in his protection visa, again reduced to its bare essentials, can be described as being, “I am a businessman, who is a Christian, and who, as a Christian, is at risk of mob violence in my country of origin.”

The contrast that may be drawn between those two statements is a contrast that may be thought by a decision-maker to reflect adversely on the credibility of the plaintiff, but regardless of that fact, the information is information which should be described as falling within the character of information that would be the reason or a part of the reason for refusing to grant a visa. It has that character because it tended to suggest that the plaintiff was a person who held a position of a kind that entailed that he had been able to study and reach a level of employment without impediment on account of his religious beliefs and that that being so, he was not a person at risk of mob violence even if in addition to or instead of that occupation he was a businessman conducting business in his country of origin.

In this particular case, it is significant that the delegate referred to the information drawn from the application for a Business (Short Stay) visa in the decision record. The information drawn from that source was mentioned by the decision-maker in the decision record not as a matter going to the credibility of the plaintiff, but as a matter that bore upon the decision which the decision-maker had made to the effect that the particular applicant, the plaintiff, did not have a real chance of being persecuted for reason of his religion or any other Convention reason if he were to return to Nigeria. Its use in this way emphasises that it is information that met the criterion described in section 57(1).

The information having the character described in section 57(1)(a), it was accepted on behalf of the Minister that that information was not given by the plaintiff for the purpose of his application for the visa in question: a protection visa. It follows that there was a failure to comply with section 57 of the Act. In light of that conclusion, it is unnecessary to consider the other questions raised by the plaintiff about the engagement of section 54 or section 56 of the Act in this case nor is it necessary to consider the other and much wider questions mentioned in earlier written submissions filed on behalf of the parties about the validity or effect of section 51A of the Act, questions which were left for another day in the Court’s decision in Saeed.

In my opinion, the plaintiff should have relief in the form of certiorari to quash the delegate’s decision made on 18 April 2006 and should have relief by way of mandamus to hear and determine the plaintiff’s application for a protection visa.

Subject to anything that counsel for the Minister may say as to the question of costs, it would appear to me that the plaintiff should have his costs of the application to the extent that those costs were not otherwise dealt with by the orders of the Full Court made on 18 June 2008. Is there anything you would wish to say about the form of orders that I would propose.

MR KNOWLES: In relation to the form of orders, your Honour, the only issue that I had was the one that your Honour has already mentioned concerning the previous costs orders and that they remain unaffected.

HIS HONOUR: Those obviously have to remain unaffected.

MR KNOWLES: Otherwise, your Honour, it is accepted that there is no reason to depart from the normal course that costs follow the event.

HIS HONOUR: Yes. Ms De Ferrari, do you have anything to say about the form of orders?

MS DE FERRARI: No, your Honour.

HIS HONOUR: There will be orders in those terms. I need hardly say this to counsel, but out of an abundance of caution I would say that of course the reasons that I have prepared are subject to some revision on seeing the transcript. May I thank counsel for their assistance in the matter.

Adjourn the Court.

AT 10.38 AM THE MATTER WAS ADJOURNED