Gajjar v Minister for Immigration and Citizenship [2013] HCATrans 35 (22 February 2013)

Last Updated: 26 February 2013

[2013] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B37 of 2012

B e t w e e n -

NISHITHKUMAR ARVINDBHAI GAJJAR

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 22 FEBRUARY 2013, AT 10.16 AM

Copyright in the High Court of Australia

MR D.C. RANGIAH, SC: Your Honour, I appear on behalf of the plaintiff. (instructed by Hartnett Lawyers)

MR G.R. KENNETT, SC: May it please the Court, I appear with my learned friend, MR P.G. BICKFORD, for the defendant. (instructed by Clayton Utz Lawyers)

HER HONOUR: Yes, Mr Rangiah.

MR RANGIAH: Your Honour, the plaintiff is in an unfortunate predicament where he complied with the criteria for the grant of a subclass 485 visa at the time of the decision, but as things stand he cannot get the visa. His predicament really resulted from three factors. The first was the failure of his migration agent to send the results of the second IELTS test to the Department; the second was the failure of the delegate to tell the plaintiff of the information received from a third party, namely, the results of the IELTS test, the first one; and the third was the failure of the agent to notify the plaintiff of the decision until it was arguably too late for him to get back.

HER HONOUR: I am familiar with the factual background. It was slightly odd that the application for the visa was made on the basis of test results which did not comply with the criterion.

MR RANGIAH: Well, I would submit that it was not made on that - - -

HER HONOUR: Was there some sort of time problem? Did the application have to be lodged in a particular timeframe? Is that how it happened?

MR RANGIAH: Yes, the requirements for the visa include that a two-year course of study must have been completed within six months of the application and so it is certainly the case that the plaintiff was able to satisfy the results by having a complying English test later but the application had to be lodged before the second test could be done.

HER HONOUR: Within a particular timeframe?

MR RANGIAH: Yes. Your Honour, could I take you to page 211 of the application book? This is part of the application form that the plaintiff completed. Your Honour will see that in the fourth line down from the top of the page it says:

Please provide details of the English language ability of ALL persons aged 18 years or over included in this application.

Have you undertaken an English test within the last 24 months?

Yes

If yes, provide details of the most recent English test –

So the plaintiff - - -

HER HONOUR: Now, this is to be read in light of the important note under the heading “Applicant language ability” on page 210?

MR RANGIAH: Yes, that is so but, in my submission, that does not take it any further because the point is you must provide evidence of your English language ability or that the English language test has been booked. The point that I seek to make from here though is that it did not ask him for his results of the test, it asked him for - - -

HER HONOUR: But it points out that that is an essential criterion for the visa.

MR RANGIAH: Yes, and I accept that.

HER HONOUR: So you accept that it would be understood by an applicant and the migration agent that that was so?

MR RANGIAH: Yes, and in fact the plaintiff did provide the results of the second test to the agent to pass on to the Department and it did not happen. We accept that the plaintiff knew that he ought to provide the results of the test.

HER HONOUR: Yes.

MR RANGIAH: But one of the issues that arises on the respondent’s outline is whether the results were in fact provided through the application form and, in relation to that point, my submission is that they were not because the application form does not ask for the results of the English language test, it asks “What is your language ability” and he said “Competent” and the two other passages that we have been to also ask the same question or refer to the same issue, the details of English language ability.

HER HONOUR: But both the Department and the applicant know that the method of testing is through this particular scheme and if you provide a reference number that will allow the Department to access your results.

MR RANGIAH: Well, I do not accept that, your Honour. There is no evidence that – I do not accept that the plaintiff knew that the reference number would be used to access his results through some external website.

HER HONOUR: Well, the migration agent would know that, though.

MR RANGIAH: At the time this was completed the applicant did not have a migration agent.

HER HONOUR: A migration agent?

MR RANGIAH: Yes. A migration agent was engaged later. Your Honour, in my outline in reply I have referred to an email sent by the Department to Mr Gajjar on 9 January 2011. It has not made its way into the application book and for completeness I will tender that document. The present relevance of the document lies in the second page. There is a heading towards the bottom “Document requirements” and it does say “If you have not already done so you will need to provide the Department with the documents listed below” and then the third one down is “IELTS English test report results”.

Now, I accept that the plaintiff was told that he needed to provide the results but he did not do so and the issue is when he did not do so what were the options open to the delegate and, in my submission, there were three options open to her and I will demonstrate this shortly by reference to the relevant statutory provisions. She could have asked the applicant to provide the results, she could have proceeded to make the decision on the basis of the material that she had and found against the granting of a visa, but she did neither of those things. Instead what she did was she consulted the website, got the results of the first IELTS test and used that as part of the basis for rejecting the application.

So, in those particular circumstances, my submission is that section 57 required her to give an opportunity to my client to comment on the results. I will deal with that a little bit more fully. Your Honour, could I ask you to go to page 293?

HER HONOUR: Page 293?

MR RANGIAH: Yes. Your Honour, this is the decision record. Your Honour will see in the first paragraph the delegate says:

I have assessed your application and find that you, NISHITHKUMAR ARVINDBHAI GAJJAR, do not meet the criteria for the grant of –

the visa. Over on the next page there is a paragraph that begins:

Under migration law a visa cannot be granted unless the applicant meets the legal requirements that are specified in the Act and the Regulations . . . I am not satisfied that you meet the criteria for the grant of [the visa] . . . Therefore, your application for this visa has been refused.

The delegate then set out the relevant provisions of the regulations. In particular, your Honour will see that she set out regulation 485.215 which requires that “The applicant has competent English”, and then set out regulation 1.15C which says that:

If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

. . .

(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening –

So that was the criterion relevantly that had to be satisfied here. At the bottom of the page the delegate said:

On 09 January 2011, you lodged your application for a VC-485 Skilled Graduate Visa. On your application, you provided an IELTS test result number –

Your Honour will note from the previous page that I took you to that in fact what was asked for was an IELTS test reference number, not result number –

for a test dated 20 November 2010.

Departmental checks determined your IELTS test result as –

and the results are set out and the problem was the writing result which was 5.5 and it needed to be 6. Your Honour, the departmental checks, as it is truly established in an affidavit of Rosemary Holden which starts at page 357, the departmental checks involved going to a website kept by an external provider to check those results. The delegate then said:

As you have not provided evidence of an IELTS test report with scores of at least 6 for each of the 4 test components, I am not satisfied that you have competent English as prescribed –

In my submission, it is clear that the delegate relied upon the test scores in reaching the decision. It is evidenced by the fact that she expressly refers to the scores obtained in the decision and the test scores, or the results, were part of the reason for refusing to grant the visa. I will come back to that proposition. Could I take your Honour then next to the relevant sections of the Act? Can I start with section 51A? Your Honour will see under subsection (1):

This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

Could I ask your Honour then to go to section 54 and your Honour will see that under subsection (1):

The Minister must . . . have regard to all of the information in the application.

Then under subsection (2):

. . . the information is:

(a) set out in the application; or

(b) in a document attached to the application

Under subsection (3) it is clear:

a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

That is a provision that appears to refer to the ability to make a decision based on material provided by the applicant, and in terms of material coming from an external source, in my submission that provision has no application or is subject to section 57. Your Honour, could I then ask you to read section 56(1):

the Minister may . . . get any information that he or she considers relevant –

including, presumably, from a third party –

but, if the Minister gets such information, the Minister must have regard to that information in making the decision –

So it appears to be that section which enlivened this delegate’s power to obtain the results from a third party and once she obtained them she was required to, by the word “must”, to have regard to that information in making the decision as to whether to grant or refuse the visa.

Your Honour, if I could just amplify my submission earlier that there were three options available to the delegate when she came to make the decision and when the test results had not been provided by my client? The first was that she could have asked the plaintiff for the result - section 56 allowed her to do that - or she could have made the decision on the basis of the material simply in the application - section 55(3) allowed her to do that. The third option was to seek information or the results from a third party, which she is permitted to do under section 56, and that is what she did. But the question then is what was she obliged to do, if anything, in relation to that information that she obtained from the third party and, in my submission, the answer to that is found in section 57.

Your Honour, the section firstly in subsection (1) defines the expression “relevant information” and then in subsection (2) says what must happen with relevant information, including giving the applicant an opportunity to comment. Initially, the Minister’s submissions seemed to concede that section 57(1)(a) was satisfied; that is, that the information, or here the results, would be part of the reason for refusing to grant a visa, but has resiled from that concession in the amended submissions that have been filed.

HER HONOUR: In this case it is the reason, is it not; that was the only reason for refusing the visa?

MR RANGIAH: Yes, I suppose the way the Minister’s submissions concede it is that – they say that the reason for refusal was because the applicant had failed to provide evidence that he had achieved an appropriate test result.

HER HONOUR: Well, compliance with the criterion was the reason.

MR RANGIAH: Yes, but part of the reason, in my submission, for the decision was that - the results that were actually obtained. The delegate concluded from those results that the criteria were not satisfied.

HER HONOUR: The purpose of section 57 is to give an applicant an opportunity to comment upon a matter which they have previously not addressed in their application. Is that right?

MR RANGIAH: It can be a purpose in circumstances, in my submission, where information is obtained from a third party. It is, I think, apparent from section 54(3) that the decision can be made without ever giving the applicant an opportunity to fix up holes in the application. But section 57 is principally, in my submission, directed to information obtained from a - - -

HER HONOUR: Which the delegate has received from another source rather than from the body of the application itself?

MR RANGIAH: Yes, and your Honour can see that because section 57(1)(c) says it “was not given by the applicant for the purpose of the application”.

HER HONOUR: Yes. The Minister’s submissions put some weight upon the notion that the applicant gave the information by providing the reference number to the test results.

MR RANGIAH: Yes, and my response to that is simply that the application form did not ask for the test result and that was not given in the application form. All the application form asked for was what his language ability was; there is no reference to the test result. I have pointed out that the delegate said that you provided a test result number but it was not a test result number; what he was asked for was a test reference number.

Your Honour, the information here, in my submission, could be characterised as the results in the first IELTS test, namely, that he had 7 in the listening band, 6.5 in the reading band, 5.5 in the writing band and 7 in the speaking band. There does not seem to be any dispute between the parties that this was information, but perhaps for completeness I should just mention that there is a case called VAF v The Minister [2004] FCAFC 123; (2004) 206 ALR 471.

HER HONOUR: Is that in your list of authorities?

MR RANGIAH: It is not, your Honour. It is at paragraph [24] and I just mention it to say that two judges of the Full Court said that information in section 424A of the Migration Act, which is an equivalent provision to section 57 but dealing with the Refugee Review Tribunal - - -

HER HONOUR: Yes.

MR RANGIAH: Two judges said that information for that purpose is “knowledge of relevant facts or circumstances communicated to . . . the tribunal”, but it does not include the Tribunal’s subjective approach or thought processes or determinations.

HER HONOUR: I think that is pretty well settled, is it not?

MR RANGIAH: Yes. There is no dispute, I think, between the parties about this being information, but for completeness I just thought I would give you an authority which supports that approach.

HER HONOUR: Yes.

MR RANGIAH: Your Honour, I cannot take any further, I think, my submission that the results were not given by the applicant for the purpose of the application and I have dealt in my submissions – my outline of submissions in reply – with the defendant’s intentions as to why they were given.

HER HONOUR: At paragraph 23 of your written submissions you say that:

The obligation under s.57(2)(a) is not confined to giving the visa applicant particulars of information that is outside the presumed knowledge of the visa applicant.

MR RANGIAH: Yes, perhaps it is badly expressed, but what I meant, or what I was trying to communicate by that was that it may have been that at common law that the obligation of natural justice did not extend to - - -

HER HONOUR: Something within the person’s own knowledge.

MR RANGIAH: Yes, and clearly the test results were within the applicant’s own knowledge but, in my submission, section 57 goes further and as long as the statutory criteria are met so that it is relevant information then there has to be that opportunity given to comment.

HER HONOUR: Yes.

MR RANGIAH: Your Honour, I rely on my outline of submissions in reply. I do not propose to take your Honour – I do not think it is profitable to take your Honour to that at the moment. If I could get back to the second aspect of the Minister’s amended argument, which is that the test results were not the reasonable part of the reason for the refusal to grant a visa. Your Honour has seen that the delegate specifically referred to the results when making the decision, and if I could ask your Honour to go to section 66 of the Migration Act? It is not a section that I had on my list of authorities. Your Honour will see that under subsection (2)(c) it is provided that:

Notification of a decision to refuse an application for a visa must:

. . .

(c) . . . give written reasons . . . why the criterion was not satisfied or the provision prevented the grant of the visa –

So the delegate was obliged to state what her reasons were for the refusal of the grant, and she did, and those reasons included the test results that were obtained. Your Honour, in the Minister’s amended submissions it is said that information is part of the reason for refusing a visa if it suggests in its terms that the applicant does not meet an applicable criterion. In my submission, the results do in their terms indicate that the applicant did not meet the criterion of appropriate results for competent English.

Your Honour, can I take you to a case that is not on my list but it is a case of SAAP v The Minister [2005] HCA 24; (2005) 228 CLR 294? I will hand up a copy. Could I start by taking your Honour to the reasons of Justice Hayne, which start at paragraph 178? It is in the second of the flags that are inserted into the decision. Justice Hayne most succinctly describes the circumstances of the case, and perhaps I could ask your Honour just to read paragraph 178?

HER HONOUR: Yes.

MR RANGIAH: Then in 179 it was said:

This appeal raises three questions. Was the Tribunal bound to give the appellants written notice of the information it obtained from the eldest daughter?

At paragraph 180, about two-thirds of the way through the paragraph, your Honour will see the sentence beginning “I consider”, and his Honour’s conclusion on that issue was stated there:

I consider that the Tribunal was bound to give the appellants written notice of that information and to ensure, so far as reasonably practicable, that the appellants understood why it was relevant to the review. The Tribunal’s failure to do so constituted jurisdictional error.

So your Honour will see that like this case what had happened was that the Tribunal had obtained information from a third party, namely, the applicant’s daughter, but then were required to give written notice of that information. Now, your Honour has already read section 424A but it is described in paragraph 182, and your Honour will see that the language there is identical with that in section 57(1)(a). In paragraph 184 – if I could ask your Honour to read the first three sentences - - -

HER HONOUR: Yes.

MR RANGIAH: Thank you, your Honour. The decision here was a majority decision and the main point of the case was really whether there was a continuing obligation on the Tribunal to comply with section 424A after the applicant had been invited to and had given evidence, and the majority concluded that there was that obligation. It is perhaps only necessary for me to take you to a passage in the reasons of Justice McHugh at paragraph 50; it is the first of the flags. Your Honour will see about halfway through paragraph 50 there is a sentence that says, “It only applies to information” and if I could ask your Honour to read the rest of that paragraph?

HER HONOUR: Yes.

MR RANGIAH: Justice Kirby essentially agreed with Justice Hayne, although he provided his own reasons, and perhaps it is not necessary for me to take you to that judgment, but what I draw from this case is that it was similar circumstances in the sense that information was obtained from a third party and the obligation under that provision was to alert the applicant to material that the decision-maker considered to be adverse to the applicant’s case and given opportunity to comment on it. Your Honour, the respondent relies on a case of SZBYR v The Minister. I am not sure whether the respondents – actually, I think your Honour may have been provided with a copy of it.

HER HONOUR: Yes.

MR RANGIAH: In paragraph 14, your Honour – I am sorry, I should just give you some background about this case. This was a case in which the plaintiff relied on section 424A but the facts were quite different from those in SAAP. In this case the Refugee Review Tribunal simply disbelieved the evidence given by the plaintiff and, inter alia, because of discrepancies in the evidence, including a statutory declaration that had been previously provided. In paragraph 14 at line 40 there is a sentence in which – perhaps for a different purpose but the Court distinguished the decision in SAAP on the basis that there:

the relevant “information” was testimony of the appellants’ daughter which had been given in their absence –

but this case –

consisted of the appellant’s own prior statutory declaration, to which the Tribunal explicitly drew their attention during the course of the hearing.

Your Honour, at paragraph 15 – perhaps I can just ask your Honour to read paragraph 15.

HER HONOUR: Yes.

MR RANGIAH: Your Honour will see that there were internal inconsistencies which were relied on as the information here, but that is quite different to this case. Could I then ask your Honour to go to paragraph 17 and perhaps just ask your Honour to read that paragraph and, in particular, I am going to draw your Honour’s attention to the second-last sentence in that paragraph.

HER HONOUR: Yes.

MR RANGIAH: Your Honour, in my submission, and the circumstances and under the facts of this case where information had been obtained from a third party and where that information indicated that the relevant criterion had not been met then that information can be described as information which in its terms involves “a rejection, denial or undermining of the appellant’s claims”. Can I finally, your Honour, just perhaps repeat that it was certainly open to the delegate in this case to reject the application without obtaining the results from the third party website but once she did and once it became part of the reasons for - - -

HER HONOUR: Well, it would not have been, would it, because the delegate would have been required to examine whether or not the criterion had been met? The delegate could not have made a decision without assessing whether the criterion had been met. The delegate had to turn her mind to the very question to be answered.

MR RANGIAH: Yes. I suppose the delegate – there was an obligation on the applicant to satisfy the Minister that the applicant had the appropriate results, and I suppose the delegate might have been able to say “I am not satisfied from the material that you have provided that you have the results”, but, of course, my submission is that what distinguished it in this case was that she just did not do that, she went further, and then that engaged section 57.

HER HONOUR: If the results had been attached to the application it would have been different. Is that really the point?

MR RANGIAH: In this particular case she would not have had to go then to the third party.

HER HONOUR: Would section 57 have obliged the delegate to put the information to the applicant?

MR RANGIAH: No, because the applicant would have supplied that information to the - - -

HER HONOUR: That is really what it turns upon, is it not, whether or not the applicant gave the information?

MR RANGIAH: I would submit, yes, and the information being the results. Your Honour, unless there is anything further, those are my submissions.

HER HONOUR: Thank you, Mr Rangiah. Yes, Mr Kennett.

MR KENNETT: Your Honour, I think it is common ground between us that the case turns on an exercise in statutory construction rather than on general law principles of procedural fairness - - -

HER HONOUR: Yes.

MR KENNETT: - - - although when one construes section 57 that must, of course, be done with regard to – in the light of an appreciation of its purpose which relates to the provision of procedural fairness. I have two points, which your Honour will no doubt be aware of by now. One relates to paragraph (a) of section 57(1) - I will deal with that first - and the other point relates to paragraph (c) of section 57(1).

My friend began his oral submissions with the proposition that this was an applicant who complied with the criteria for grant of the visa. With respect, one cannot know that, and this Court could not find that because there were other criteria that needed to be satisfied that the delegate made no findings about. Nevertheless, we do accept the proposition in paragraph 24 of my friend’s submissions that the plaintiff could have met the criterion which the delegate found he had failed to meet by submitting a later and better English test result. Had he done so, following the decision of this Court in Berenguel’s Case, which my friend refers to, the delegate would have been obliged to find that he met the particular criterion that is in issue and would have then, of course, moved on to the other criteria.

That really illustrates the nub of my first point in that if that later test result, which the evidence shows did actually exist, had been put before the delegate, the earlier results, which the delegate had found by looking at the website, would have become completely irrelevant. It would not have mattered one jot that he had achieved inadequate results in an earlier test if the position was that he had achieved sufficient results in a later test.

If one looks at that admittedly hypothetical situation it becomes apparent that the earlier result, that is, the result that the delegate found on the website, was not something which in itself weighed against the plaintiff. Rather, it was something which simply did not help him.

HER HONOUR: Is this the point you make in paragraphs 5 and 6 of your outline?

MR KENNETT: Yes, your Honour.

HER HONOUR: I had a little difficulty with them, so I will be assisted if you could really expand on them.

MR KENNETT: Yes. Well, that is the point, your Honour. The criterion required him to show that he had achieved test results at a particular level, and it is common ground that it was open to him to do that by sitting the test again and again until the decision was made. It was not a case where he only got one go at sitting the test and a poor result was decisive. It was a situation where a poor result was not decisive; it just meant that he was not over the line yet, to put it colloquially.

So that the – as I think I said a moment earlier – the poor, or the inadequate result was not something which in itself counted against him, it was simply a piece of information which did not help him and did not allow him to satisfy the criteria. If one goes to the delegate’s decision record, which appears twice in the material, but your Honour has been taken to a copy of it at page 293 of the court book, the delegate refers at the bottom of page 294 to the fact that the plaintiff had provided an IELTS test result number, and my friend makes something of the fact that it was earlier described as a reference number rather than a result number. At any rate, he had provided the number.

Then at the top of page 295 she records what she found when she looked at the actual results, but then the important paragraph, we submit, is the next one which says:

As you have not provided evidence of an IELTS test report with scores of at least 6 . . . I am not satisfied that you have competent English –

So what was decisive, we submit, was not the results that had been provided – using that term loosely – not those results, but the absence of evidence that he had obtained better results.

HER HONOUR: What is the distinction you are drawing in paragraphs 5 and 6, that there is a difference between a failure to satisfy a criterion as distinct from a refusal on some other ground or – I am just not quite sure what it is?

MR KENNETT: It is the difference between a piece of information which has its own relevance and which in and of itself points to an adverse result on the one hand and a piece of information which means no more than that on what has been given to me, the decision-maker, so far is not sufficient. I will take your Honour to SZBYR in a moment, but if the delegate had written a letter to the applicant about this - - -

HER HONOUR: You mean it - the point is that it calls for no response, is that the point? There is nothing to be said about it?

MR KENNETT: No, not quite, your Honour, because there could have been – well, in this case there could have been a response. The response, one assumes, would have been, “That is true but I have these other results which I want to tell you about”. But if the delegate had written a letter to the plaintiff about these test results by way of explaining why the results were relevant, the delegate would not and could not have said, for example, these results prove that you do not have competent English. All that the delegate could have said in such a letter would be, “I have looked at the results and so far you have not shown me that you do have competent English” because the results – and this is a slippery notion, I accept, but the results do not of themselves have any adverse weight, they simply mean that the applicant has not yet provided the evidence that he needs to provide.

My friend took your Honour to the decision in SZBYR, which, of course, was a different factual situation, but paragraph 17, we submit, contains a principle which supports the proposition that I am putting here. If one goes to paragraph 17, which is on page 615 of the report, and this was a Refugee Review Tribunal decision concerning section 424A of the Act and the information that was under discussion was some, in effect, prior inconsistent statements that the applicants themselves had made and under the section as it stood at the time those statements were not within the exception that parallels 57(1)(c); they were not within section 424A(3)(b). So the Tribunal was not excused from raising these prior inconsistent statements with the applicants on that basis.

What the Court said, and there are a number of reasons in the end why this Court held that the information did not come within section 424A, and one of them is at paragraph 17 where the Court says – it goes to the phrase “the reason, or a part of the reason”, and about five lines down says that:

The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.

That same proposition would apply, we submit, to section 57(1)(a). So the reason, or part of the reason, for refusing to grant a visa is something that relates to the – or depends upon the criteria that apply to that visa. Then around the middle of the paragraph their Honours say that:

The use of the future conditional 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 –

that is, by reference to the criteria that need to be met and the relevance in an objective sense of the information to the criteria. Then there is reference to what the criterion was in that case; it was the criterion in section 36 of the Act, which is not relevant here. That is the frame of reference through which their Honours then look at the information that was under discussion in that case. The point is made in the second-last sentence, which my friend has read to you:

Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.

My first point really draws on the underlying principle that is expressed there, which is that one works out what would be the reason or part of the reason for refusing to grant a visa by reference to the criteria, and information does not come within that phrase unless it is information which in its terms suggests a failure to meet the relevant criterion. As I have sought to explain, we submit that this information did not in and of itself have that effect. That is the first point, your Honour, and I think that is all that I can say about it.

The second issue relates to section 57(1)(c), and we have referred – a useful place to start in relation to that is with the judgment of Justice Heerey in VWBF [2006] FCA 851; 154 FCR 302 which we referred to in the written submissions. His Honour conducts a very thorough and careful review of the many Federal Court decisions which have considered this issue in its application to section 424A, and I do not propose to trouble your Honour with all of that, but there had been a number of cases where the applicant in the Tribunal had made some reference in the course of the Tribunal proceedings to what he or she had said in the initial visa application and the question then arose, did that amount to giving the Tribunal the information that was in the earlier application.

His Honour reviews all those cases and then says, we submit, some very pertinent things, with respect, at paragraph 48 and following on page 312 of the report. In paragraph 48 his Honour notes that many of the discussions of the issue seem to proceed on the basis that the provision talks about providing information and that in fact it refers to the more perhaps general expression “giving the information”. The same thing can be said about section 57, and clearly what that amounts to is that it is not something that has any formality attached to it or any particular process. If the information is conveyed – there does not need to be a document handed over, for example - if the information is conveyed, provided in some way to the decision-maker by the particular applicant then this exception is engaged. His Honour then – where his Honour says:

If this matter were free from authority, there would be much to be said for the view –

that is a reference to a controversy which I think need not trouble your Honour about whether information was sufficiently adopted by answering a question or whether it needed to be volunteered; that is a controversy which I think need no longer trouble anyone. Then in paragraph 49 his Honour says:

Likewise, if an applicant says to the Tribunal “What I said in my visa application is true” and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal –

That is, with respect, an important observation and we would generalise it and say that if an applicant directs the decision-maker to some particular document or some particular source, it could be a physical document or a record on the website, if an applicant directs a decision-maker to that source as a source of correct information and says, in effect, you will find this information there, that, we submit, really amounts in a relevant sense to giving that information to the decision-maker, at least, we would say, for purposes relevant to what section 424A and section 57 are seeking to do. The point of including this exemption, of course, is so that decision-makers do not have to draw to an applicant’s attention things that he or she already knows, having him or herself either said them or directed attention to them.

HER HONOUR: So what do you say is the reason for the exception in paragraph (c)?

MR KENNETT: Well, it is reflective, at least in a general way, of the general law exemption which I think my friend referred to by reference to a passage in Kioa but I did not write it down, I am afraid. As a matter of general law and as a matter of common sense, a decision-maker is not required to reflect back the applicant’s own submissions or evidence to him or her and say what do you say about that? The decision-maker is entitled to disbelieve what has been put or to decide it is not worthy of very much weight and need not, in forming that view, as I say, reflect back what the applicant, him or herself, has said.

Paragraph (c), of course, needs to be closely construed according to the terms it actually uses, but seeks to get at the same notion that the decision-maker is not required to canvass with an applicant and seek his or her comment upon that which the applicant, him or herself, has said or material which the applicant, him or herself, has in a general sense provided.

So the point that we take from paragraph 49 of Justice Heerey’s reasons is that there is really no difference from the point of view of that principle or objective between, on the one hand, handing over a document and, on the other hand, saying to the decision-maker, the particular document which you have or can get access to contains accurate information about such and such an issue. There is no functional difference between doing those two things and there ought be no difference, we would submit, in the application of paragraph (c) between those two things. His Honour then notes in paragraph 50 that:

Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts –

and I think there is the point that I was groping for a moment ago –

common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person –

him or herself, and there is a reference to a decision in Alphaone. So this issue, I suppose, really turns on whether one sees the information that the delegate found by following a reference that the applicant had given her as being information that the applicant gave, or information obtained from a third party.

There are really, I think, only a couple of fairly short things to say about that. Your Honour has been taken to the application form, pages 210 to 211 of the court book, and your Honour has noted the note on page 210 which describes itself as important and which says:

You must provide evidence of your English language ability –

and then on the next page there is a question which asks – a pair of questions which – the first one is, “Have you undertaken an English test” and the second question is “If yes, provide details”. So what has been sought there is details of a test which, in the universe of discourse that we are now in, has necessarily already been undertaken and we would submit that the only purpose of asking for that information that could have been apparent to anyone, could have been apparent to an educated person such as the applicant is, is that the Department is asking for the test reference details in order to be able to follow them up.

That, we submit, must have been obvious as the reason why the information was being asked for, and the reason why the plaintiff would give it. From the plaintiff’s point of view, the purpose of providing the reference number, apart from the fact that it has been asked for, is to be able to support his claim that he has competent English and meets the criterion. So we would submit that implicitly when one considers why the information has been asked for, the giving of the – why the reference details have been asked for, the giving of that information is implicitly an invitation to the Department to go and check it, and what the Department finds on the website at that reference number is the results.

That is the equivalent of Justice Heerey’s example of an applicant saying the information contained in a certain document is true. So that is essentially the reason why we would submit this is not third party information that the Tribunal has relied on adversely to the applicant. It is information which the – I keep saying the applicant, I mean the plaintiff – but information which the plaintiff himself directed attention to.

Perhaps just two very short things to add to that. My friends tendered the departmental email of 9 January 2011, which of course I do not object to. I just note that that is an automatically generated email, first of all. What it says is if you have not already done so you will need to provide the Department with certain documents and then on page 3 of the printout that your Honour has it says what will happen if those documents are not provided and that is that the Department might make a decision without taking into account the information that could be in the documents.

This does not give any magic, we would submit, and it does not have any statutory magic in itself. It does not give any magic one way or the other to the fact that the reference number was asked for and given in the application form, principally because, and I suppose this is the short point,

what the Department asks for in an email and foreshadows in an email simply cannot be determinative of what the statute requires to be done. It, of course, comes after the provision of the information by the applicant so it does not affect the character of that. Finally, as to SAAP – I would not normally do this, but can I just give to your Honour a copy of the Commonwealth Law Report of SAAP.

HER HONOUR: I have that.

MR KENNETT: I am sorry, your Honour, I thought you had been given the Australian Law Reports.

HER HONOUR: No.

MR KENNETT: In that case, I will not duplicate it. I just wanted your Honour to be able to see the summary of the argument for the Minister at pages 297 to 298 in order to illustrate that the starting point for the debate in that case was that this was information which was adverse and which the applicant had not given. The debate in the case was as to whether, on that basis, section 424A bit at particular stages during the Tribunal’s review or not. So one will not find in SAAP, we would submit, decisive passages that resolve the issues in the present case. They just were not the issues that were being debated to the extent that the purpose of – or the construction or the operation of the section is talked about it is really by way of background and introductory material to the real reasoning in the case. Those are the submissions for the Minister.

HER HONOUR: Yes, thank you, Mr Kennett.

MR RANGIAH: Just two points in reply, your Honour. Firstly, if I could take your Honour back to the decision in VWBF that my learned friend has recently taken you to, a decision of Justice Heerey, paragraph 50. Your Honour asked my learned friend about what is the purpose of section 57(1)(c) in particular, and, in my submission, paragraph 50 really explains what that purpose is, subject to one qualification, the purpose being:

consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source –

from a third party –

but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself –

and so that is why it is that the exception in paragraph (c) that takes material submitted by the person out of the definition of “relevant information”. The exception to the common law position, in my submission, is something that I have already touched on which is that information might be within the knowledge of a person, but if it is obtained from a third party, then section 57 does not create an exception to it being relevant information. It is still relevant information even if it is actually within the knowledge. The criterion that takes it out of relevant information is whether it is given by the applicant.

Your Honour, the second point that I wanted to touch on was that my learned friend submitted that it was enough for section 57(1)(c) to be engaged if the applicant had directed attention to the test result and, in my submission, it is quite a different thing to the language of the section which requires it to be given. Those are my submissions, your Honour.

HER HONOUR: Just for completeness, could I ask – you have referred in your written submissions to the proceedings on foot in the Federal Magistrates Court. Are they still on foot?

MR RANGIAH: Yes, they are, your Honour.

HER HONOUR: Thank you. Yes, thank you for your submissions. I will reserve my decision in the matter.

The Court will now adjourn.

AT 11.24 AM THE MATTER WAS ADJOURNED