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[2013] HCA 13
respondent. Application dismissed with costs, including the costs of the application for remitter determined by the Court on 1 November 2012.
Kiefel J held that the applicant had himself given the first IELTS results for the purpose of his visa application, even though he supplied only the test reference number and a departmental officer accessed the results online. Because the results were given by the applicant for the application, they were outside the statutory definition of “relevant information” in s 57(1). The Department therefore did not have to provide the results to him for comment under s 57(2). The application was dismissed with costs.
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2,655 words · generated 04/10/2026
The judgment concerns the disclosure obligation in s 57 of the Migration Act 1958 (Cth), in the particular setting of an application for a Skilled (Provisional) (Class VC) Subclass 485 visa. Kiefel J records that the plaintiff, an Indian citizen, applied for that visa on 9 January 2011. At the relevant time, the visa required “competent English”, which was established through an IELTS test score of at least six in each of speaking, reading, writing and listening [1].
No linked legislation citations have been extracted yet.
Before applying, the plaintiff took an IELTS test on 20 November 2010. He did not achieve the required scores, but applied under time pressure [2]. The application form asked whether he had undertaken an English test in the preceding 24 months and, if so, asked for details of the most recent test. He answered “Yes”, identified IELTS, gave the test date and reference number, and described his language ability as “Competent” [4]. The form also warned that evidence of English ability had to be provided and that failure to do so might lead to refusal [3].
The plaintiff did not send the Department a copy of the November test results. The reference number he supplied allowed a departmental officer to retrieve them through the online IELTS Test Report Form Verification Service, which was operated by an external provider [6]. The results showed that the required scores had not been achieved. The delegate refused the visa application because the competent-English criterion was not met [7].
There was a later test. The plaintiff took another IELTS test on 19 March 2011 and achieved the required scores. But those results did not reach the Department. The plaintiff had given them to his migration agent, who did not inform the Department [7]. The plaintiff did not allege that the delegate erred by failing to consider these later results. His judicial-review argument was instead that the delegate had to provide particulars of the first results under s 57 [9].
Section 57(2) requires the Minister to give particulars of relevant information, explain its relevance as far as reasonably practicable, and invite the applicant to comment. Section 57(1) defines “relevant information” by reference to information that may be a reason for refusal, is specifically about the applicant, and “was not given by the applicant for the purpose of the application” [10]. The dispute focused particularly on that final requirement.
The Court dismissed the application with costs [27]. Its central conclusion was that the plaintiff had provided the first test results for the purpose of the application by identifying the test and giving the means by which the Department could retrieve its results. The fact that the Department obtained the results from an external online service did not change that conclusion [21], [25].
Kiefel J treated the statutory definition as requiring attention to each of its conditions. First, she addressed whether the first results could be a reason for refusing the visa. The Minister argued that the results merely showed an absence of evidence satisfying the English criterion, rather than being information that itself pointed to an adverse outcome. Kiefel J regarded that as a fine distinction. Whether information would be a reason for refusal had to be assessed when the delegate made the decision. If the shortfall had not been supplemented or replaced by material satisfying the criterion, the first test results would at least be a reason for refusal [12]-[13].
That conclusion did not resolve the case. Section 57(1)(c) separately excludes information given by the applicant for the purpose of the application. Kiefel J explained that the provision reflects an assumption: where an applicant supplies information for the application, the applicant is taken to understand its relevance. By contrast, s 57 is directed to information of which an applicant may be unaware, or whose relevance the applicant may not understand [14]-[15]. This connects the statutory exclusion to the purpose of the notification process: enabling an applicant to comment on information they might not know about or appreciate [11], [15].
The plaintiff argued that he did not give the results because he neither attached them to the form nor directly provided them to the Department. The Department’s officer retrieved the results from a third-party service [16]. Kiefel J did not treat physical delivery or direct transmission as essential. The relevant inquiry was whether the information came from the applicant and was provided for the purpose of considering the application. A person can provide information through another person, and the means by which it is conveyed does not determine whether it was given by the applicant [19]-[21].
The application form mattered to that assessment. The questions about English tests appeared in a section headed “Applicant language ability”, after a warning that evidence of English ability was needed [3]-[4]. The plaintiff knew that competent English was a visa criterion and that test results were required to establish it [22]. His answers identified the November test in response to questions directed to the evidence of that criterion. The information was therefore supplied to enable the application to proceed and be assessed, even though the test results did not help his case [20], [22], [25].
Kiefel J also considered the plaintiff’s point that he might not have known the reference number would let the Department access the results [23]. The plaintiff did not say that he thought the Department could not use it in that way, or that he did not understand that the questions might serve that purpose. His silence did not establish that he was disassociated from the results or their evidentiary purpose [24]. The Court’s reasoning did not depend on a finding that he intended the first results to harm his application. It depended on the fact that he identified them as evidence relevant to the application.
The result was that s 57(1)(c) excluded the first test results from the definition of “relevant information”. Since s 57(2) applies only to relevant information, the delegate did not have to give particulars or invite comment [27].
The judgment presents s 57 against the background of procedural fairness principles. It notes that the statutory requirements resemble aspects of the general law. In Kioa v West, Mason J had said that procedural fairness may require a decision-maker to bring critical information to an affected person’s attention when the information came from another source [11]. Saeed v Minister for Immigration and Citizenship was cited for the purpose of the statutory opportunity to comment and for the point that not all adverse or influential information is necessarily “relevant information” under s 57 [11].
The judgment’s contribution is an interpretation of the statutory exclusion in s 57(1)(c). The text asks whether the information “was not given by the applicant for the purpose of the application”. Kiefel J treated the source and purpose elements as connected, and read them in light of the disclosure process’s object [19]-[21]. The relevant question was not simply who physically transmitted a document to the Department. Information could be conveyed through a third party or through a reference number that enabled retrieval. What mattered was whether it came from the applicant and was supplied for use in considering and determining the application [21].
The Court also clarified how s 57(1)(a) operates where adverse material might be supplemented later. The character of the information is assessed at the time of the delegate’s decision. If no material has replaced or supplemented an evidentiary shortfall, the existing information may be a reason for refusal [13]. The judgment therefore separates the question whether information could be a reason for refusal from the separate question whether it was supplied by the applicant and so excluded by s 57(1)(c).
The judgment does not set out a broad account of how the law changed after the decision, nor does the supplied text provide later judgments applying it. Its effect, on the materials available here, is best described as a focused statutory interpretation of s 57(1)(c), rather than a comprehensive restatement of procedural fairness law. The distinction drawn is also consistent with the judgment’s account of the statutory purpose: disclosure is directed to information the applicant may not know of or may not appreciate as relevant, not information the applicant has supplied for consideration [15].
At [13], Kiefel J states: “The use to which the information will be put, as the reason or a part of the reason for refusal, is to be assessed at the time the delegate’s decision is made.” In plain English, information need not be inherently adverse in isolation. The question is whether, in the circumstances existing when the decision is made, it contributes to the refusal. Here, the first test results could matter because no later test results had been given to the Department.
At [15], the judgment explains that s 57(1)(c) rests on an assumption that an applicant who provides information for the application knows its relevance. Put simply, the statutory notification process is aimed at information that is not already supplied by the applicant for the application, because an applicant who has supplied the information is taken to understand why it matters.
At [21], Kiefel J says that what matters is “whether the information comes from the applicant”. In context, this does not mean the applicant must personally hand over the document or send the information directly. The Court considered that a person may provide information through another person and that the manner of communication is not decisive. The question is whether the information is attributable to the applicant and connected to the application’s assessment.
At [25], Kiefel J applies that reasoning directly: “It did not matter for the purposes of s 57(1)(c) that the plaintiff provided the means by which the results could be obtained rather than the results themselves.” In ordinary terms, supplying a reference number that lets the decision-maker retrieve a test result can count as giving that information, where the applicant supplied the reference in response to application questions directed to the relevant criterion.
Finally, [27] states that “[n]o obligation on the part of the delegate arose under s 57(2)” regarding the first results. That follows from the statutory sequence: because those results were not “relevant information” under s 57(1), the notification and comment obligations in s 57(2) did not apply to them.
The reasoning is most directly engaged where an applicant provides a reference, identifier, link or other means by which the decision-maker can retrieve information relevant to the application. The judgment indicates that the information may still be treated as given by the applicant even when the decision-maker obtains the underlying result from an external provider [6], [21], [25].
The purpose and context of the applicant’s response are important. Here, the test date and reference number were given in direct response to application-form questions about English testing and language ability, after a warning that evidence of English ability was needed [3]-[4]. The plaintiff also understood that competent English was a visa criterion and that results were needed to establish it [22]. These details supported the conclusion that the information was provided for use in assessing the application.
The judgment involved information adverse to the applicant, rather than information that assisted him. Kiefel J expressly recognised the unusual circumstance that the applicant knew the first results did not support his application but identified them because they were the only evidence he then had on the question and the application needed to proceed [20], [26]. The case therefore shows that supplying information for an application does not cease to be “for the purpose of the application” merely because the information is unhelpful to the applicant.
The decision does not determine every situation involving online retrieval, third-party databases or an applicant’s awareness of how a reference number will be used. Kiefel J noted that the plaintiff had not said he did not understand that the Department might access the results, leaving that matter open to conjecture [24]. A factual assessment may therefore still be needed about what information the applicant supplied, why it was supplied, and how it was connected to the application.
The judgment also distinguishes information actually supplied by an applicant from information independently provided by another person. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant’s daughter had provided information to the Tribunal, and there was no question that the applicant had provided it or knew what had been said [17]. That difference mattered because the statutory assumption underpinning s 57(1)(c) was not present on those facts.
The supplied judgment contains no discussion of later courts’ treatment of Gajjar, and no later authorities are included in the materials provided. It is therefore not possible to state from this source whether later courts followed, distinguished, limited or expanded its reasoning. The judgment itself records the authorities it considered at the time, including Saeed, Kioa, SAAP and VWBF, but those are not later treatments of Gajjar.
Within Gajjar, Saeed is used for the relationship between s 57 and procedural fairness, including the purpose of giving an applicant an opportunity to comment and the proposition that not all adverse information is “relevant information” [11]. Kioa is referred to for the general-law principle about bringing critical information obtained from another source to an affected person’s attention [11]. SAAP is distinguished because the applicant did not know what information her daughter had given to the Tribunal [17]. VWBF is considered in relation to the meaning of giving information and the concern with information obtained from another source [18].
Those references explain the reasoning in Gajjar, but they do not establish how later courts have applied Gajjar itself. Any account of later treatment would require additional judgments not present in the source material.
The judgment leaves factual questions that may matter in applying its interpretation. One is how to assess whether information was “given” by an applicant when the applicant supplies a reference or access mechanism but does not expressly address the possibility that the decision-maker will retrieve the underlying information. Kiefel J concluded on the facts before her that the plaintiff’s silence did not disassociate him from the results [24]-[25]. The judgment does not set out a general test for cases where an applicant gives evidence about their understanding of the reference’s function.
A related question is how much the application form’s context matters. Here, the form expressly raised English testing and language ability and warned that evidence was required [3]-[4]. The plaintiff’s understanding of the visa criterion was also expressly conceded [22]. The judgment does not say whether the same result would follow where the form’s questions were less clearly connected to the use of the information, or where the applicant did not understand the relevance of the information.
The relationship between s 57(1)(a) and s 57(1)(c) also remains important. The Court considered that the first results could be a reason for refusal at the time of decision [13], yet held that they were excluded from “relevant information” because the applicant had supplied them for the application [25]-[27]. The two inquiries are distinct. Establishing that information could contribute to refusal does not, by itself, establish that the statutory disclosure obligation applies.
Finally, the judgment does not resolve the separate procedural issue concerning the plaintiff’s inability, as described in the reasons, to obtain review by the Migration Review Tribunal. The Tribunal had informed him that it considered it lacked jurisdiction because he was not in the migration zone at the relevant time, and that issue was before the Federal Magistrates Court [8]. Kiefel J’s decision was confined to the s 57 ground advanced in the High Court.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
KIEFEL J
NISHITHKUMAR ARVINDBHAI GAJJAR PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND
CITIZENSHIP DEFENDANT
Gajjar v Minister for Immigration and Citizenship
[2013] HCA 13
1 March 2013
B37/2012
ORDER
Application dismissed with costs, such costs to include the costs of the application for remitter determined by this Court on 1 November 2012.
Representation
D C Rangiah SC for the plaintiff (instructed by Hartnett Lawyers)
G R Kennett SC with P G Bickford for the defendant (instructed by Clayton Utz Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gajjar v Minister for Immigration and Citizenship
Immigration – Visa application – Plaintiff applied for Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visa requiring he have "competent English" – Plaintiff indicated his English was competent on visa application form and included reference number to a language test he had undertaken – The results of that test ("the first test results") did not achieve requisite score for competent English – Plaintiff sat second language test and achieved requisite score but results were not given to Department of Immigration and Citizenship – Using test reference number, departmental officer accessed first test results – Visa application refused on ground plaintiff did not satisfy criterion of competent English – Whether first test results were given by plaintiff for purpose of application – Whether first test results were "relevant information" for purposes of Migration Act 1958 (Cth), s 57(1) – Whether Tribunal breached Migration Act, s 57(2).
Words and phrases – "competent English", "for the purpose of the application", "relevant information", "was not given by the applicant".
Migration Act 1958 (Cth), s 57(1), (2).
Migration Regulations 1994 (Cth), Sched 2, cl 485.215.
KIEFEL J. The plaintiff is a citizen of India who is currently in Australia on a bridging visa. On 9 January 2011, he lodged an application with the Department of Immigration and Citizenship ("the Department") for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visa. A requirement for such a visa is that a visa applicant have "competent English"1. At the relevant time, a person was taken to have competent English if the person had successfully undertaken a test under the International English Language Testing System ("IELTS") and achieved a score of at least six for each of the four components of speaking, reading, writing and listening2.
On 20 November 2010, prior to lodging his visa application, the plaintiff undertook an IELTS test. He did not achieve the requisite score, but nevertheless applied for the visa under constraint of time. The plaintiff understood that competency in English was an essential criterion of the visa and that he needed to provide test results which satisfied that criterion.
In the visa application form, which the plaintiff completed, there was a section headed "Applicant language ability". The words "IMPORTANT NOTE:" were placed immediately below it, followed by this advice:
"You must provide evidence of your English language ability, or evidence that an English language test has been booked (Skilled – Regional Sponsored (Subclass 487) visa applicants only) when you lodge this application. Failure to do so may result in you being unable to satisfy the criteria for this visa, and this application may be refused".
"Have you undertaken an English test within the last 24 months?
Yes
If yes, provide details of the most recent English test
Name of test IELTS
Date of test 20 NOV 2010
Test reference number 10AU003516GAJN111G
What is your language ability Competent".
Following lodgement of his visa application, the plaintiff received what appears to be an automatically generated email communication from the Department, which, amongst other things, advised him that if he had not already done so, he would need to provide the Department with certain documents, including his IELTS test results.
The plaintiff did not provide a copy of his test results to the Department. The test reference number which was provided by the plaintiff in his visa application enabled access to his test results through the online IELTS Test Report Form ("TRF") Verification Service. That online database is maintained by an external provider and accessed by organisations using the IELTS in recruitment or application procedures. It is not kept by the Department.
A departmental officer, using the reference number, gained access to the plaintiff's results of the November 2010 test ("the first test results"), which, of course, showed that the plaintiff had not achieved the requisite score. On 11 January 2012, the Department notified the plaintiff's migration agent that the Minister's delegate had refused the visa application on the ground that the plaintiff did not satisfy the requirement of cl 485.215 of Sched 2 to the Migration Regulations 1994 (Cth); he did not have competent English. The delegate was unaware of the fact that the plaintiff had achieved the requisite score in a second IELTS test that he had undertaken on 19 March 2011. The plaintiff had provided his migration agent, whom he had appointed following the lodgement of his application, with the results of the March 2011 test but the migration agent had failed to inform the Department of those results.
The plaintiff could have sought a review of the delegate's decision by the Migration Review Tribunal but this required the plaintiff to have been present in the migration zone when his migration agent lodged the application for review3 on 1 February 2012. The Migration Review Tribunal has informed the plaintiff that it does not consider that it has jurisdiction to review the delegate's decision on the basis that he was not in the migration zone at the relevant time. I am informed that that decision and the question concerning the plaintiff's whereabouts at the relevant time are presently before the Federal Magistrates Court.
The plaintiff seeks orders for certiorari and for mandamus on the ground that the delegate fell into jurisdictional error. No relevant error is attributed to the delegate for any failure to have regard to the second test results. The error which the plaintiff seeks to establish arises from the delegate's failure to give particulars of the first test results to the plaintiff. The plaintiff does not contend that the delegate was under some general obligation to point to the deficiency in the plaintiff's case arising from the first test results. The obligation upon which he relies is said to arise from s 57(1) and (2) of the Migration Act 1958 (Cth) and the object to which it is addressed.
"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."
"Relevant information" is defined by s 57(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 …; and
(c) was not given by the applicant for the purpose of the application."
In Saeed v Minister for Immigration and Citizenship4 ("Saeed"), it was said that certain requirements of s 57(1) and (2) are similar to those arising under the general law. As stated by Mason J in Kioa v West5, procedural fairness may require a decision-maker to bring the critical information upon which a decision is likely to turn to the attention of the person who will be affected by the decision if that information was obtained from a source other than the affected person. The object of drawing the information to a visa applicant's attention under s 57 is to provide an opportunity for his or her comment upon it6. It was also observed in Saeed7 that not all information which is adverse to a visa applicant, and which may be influential to a decision to grant or refuse a visa, qualifies as "relevant information". The question in this case is whether the first test results fulfilled the description of "relevant information" for the purposes of s 57(1) and, in particular, by reference to pars (a) and (c).
The plaintiff's contention, that the first test results would be at least a reason for refusing the visa he sought, pursuant to s 57(1)(a), is contested by the Minister. The Minister seeks to draw a distinction between information which itself points to an adverse result and is relevant on that account, and information which shows that there is insufficient evidence to satisfy the relevant criterion. This is a fine distinction upon which to determine what might be a reason for refusal. It suggests that if evidence in satisfaction of a criterion can be improved upon, as was the case here, then that information does not have an inherent quality of being the reason for refusal.
The Minister's submission overlooks the fact that the use to which the information will be put, as the reason or a part of the reason for refusal, is to be assessed at the time the delegate's decision is made. If it has not been improved upon, that is to say, supplemented or replaced by material which does fulfil the criterion, it will, at the least, be a reason for refusal. If one considers the "critical issue or factor on which the decision [is] likely to turn", as referred to in Saeed8, that factor here was the first test results.
More to the point in the present case is what s 57(1) identifies as not being relevant information. Paragraph (c) qualifies information by reference to a negative circumstance. Information is relevant information if it "was not given by the applicant for the purpose of the application". The effect of par (c) is that information which is given by a visa applicant for the purpose of his or her application is not relevant information which must be drawn to the visa applicant's attention.
Migration Regulations 1994 (Cth), Sched 2, cl 485.215. ↩
Migration Regulations 1994, reg 1.15C(a)(i). ↩
See Migration Act 1958 (Cth), ss 338(2) and 347(3). ↩
(2010) 241 CLR 252 at 261 [20]; [2010] HCA 23. ↩
(1985) 159 CLR 550 at 587; [1985] HCA 81. ↩
Under the Migration Act 1958, s 57(2)(c). ↩
(2010) 241 CLR 252 at 261 [21]. ↩
(2010) 241 CLR 252 at 261 [19]. ↩
(2005) 228 CLR 294 at 347 [179]-[180]; [2005] HCA 24. ↩
(2006) 154 FCR 302 at 312 [48]-[49]. ↩
VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at 312 [50]. ↩
Gajjar
Minister for Immigration and Citizenship [2013] HCA 13
(2010) 241 CLR 252
(1985) 159 CLR 550
(2005) 228 CLR 294
(2006) 154 FCR 302
Application dismissed with costs, including the costs of the application for remitter determined by the Court on 1 November 2012.
Section 57(2) provides:
It is not difficult to deduce that s 57(1)(c) is based upon a presumption that a visa applicant who provides information for the purpose of his or her application will be cognisant of its relevance. Sub-sections (1) and (2) of s 57, as Saeed implies, are concerned with information of which a visa applicant may not be aware. Even if a visa applicant is aware of its existence, he or she may not be aware of the information's relevance to the visa application. The circumstance to which s 57(1)(c) refers enables an assumption that the relevance of the information provided by a visa applicant is understood by that person, thus satisfying the requirement under s 57(2)(b). Section 57(1)(c) excludes information as relevant information where the circumstances to which it is addressed exist.
The plaintiff contends that the first test results were not given by him, but by a third party. The plaintiff did not provide a copy of those results, nor did he attach them to his application form. Rather, the delegate used the test reference number, which the plaintiff had provided, and obtained them through the IELTS TRF Verification Service. The provider of that website is the third party provider of information to which the plaintiff points in submitting that s 57(1)(c) is satisfied.
The plaintiff referred in this regard to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs9 as a case where particulars of information, which was independently provided to the Refugee Review Tribunal by a third party, in fact by a visa applicant's daughter, were required to be given to the applicant for comment. But in that case there was no question about the applicant having provided the information. She could not have known what information had been provided to the Tribunal by her daughter. The circumstances to which s 57(1)(c) is addressed were not present.
The Minister relies upon the observations of Heerey J in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs10, by reference to the analogue provisions to s 57(1) and (2), that the giving of information may comprehend a number of means. What is required is that it be conveyed to the decision-maker in some way. The concern of the common law concepts of procedural fairness which inform these statutory provisions is that notice be given of relevant information which is obtained from "another source"11. A reference to another source suggests the visa applicant may not know of the information.
Section 57(1)(c) is a composite expression. The two elements – the giving of information other than by a visa applicant and the purpose for which it is given – may only be analysed separately to an extent. To ascertain how the provision is intended to apply, the elements need to be read together and in light of the object of s 57(1) and (2).
"[F]or the purpose of the application" conveys that information is provided in order that it may be used in the consideration, assessment and determination of the application. Ordinarily it will be the case that the information provided by a visa applicant is thought to be of assistance to the success of his or her application. The present case is a rare example where a visa applicant knows that is not the case, but is obliged to put evidence forward in order that the application might proceed.
It is not the evident concern of s 57(1)(c) how the "giving" is effected. The means by which information is provided and whether it is directly given would not appear to matter to the operation of par (c). In a practical and a legal sense, a person may provide information through the agency of a third person, yet be considered to have given it. What is important to the operation of s 57(1)(c), and the assumption upon which it is based, is whether the information comes from the applicant. If it does, and that fact is coupled with the use to which the information is to be put – the consideration and determination of the application – the Migration Act assumes that it is not necessary to draw the attention of the visa applicant to that information.
Here the plaintiff understood that he had to satisfy the visa criterion of competent English and had to provide test results to establish that competency. This is plain enough from his later actions, and it is expressly conceded. Attention was also drawn to the criterion and the method of proof of English competency in the visa application form, in the section which preceded the relevant enquiries of him. There the plaintiff asserted that his English was competent, and identified the date and reference number of the first test results.
In the course of oral submissions, the plaintiff made a point concerning the provision of the reference number of the first test results rather than the results themselves. The point was that there was no evidence that the plaintiff knew that the reference number would be used to access the first test results. If he did not know, the plaintiff might be disassociated from the provision of the results and from the purpose to which they were to be put.
It is true that the plaintiff said nothing on the matter. The plaintiff merely says that he did not attach the first test results to his application and assumed therefore that the Department must have obtained them from a third party. He does not say that it did not occur to him that the delegate, or a departmental officer, could access the results. Nor does he say that he did not understand that the enquiries, which were directed to the identification of the first test results, had that possible purpose. The plaintiff's silence leaves the matter of his understanding open to conjecture. One possibility is that he did not turn his mind to it because he did not consider the first test results to be important, since they were to be superseded. His silence does not avail him. At a factual level, it does not permit a finding which disassociates the plaintiff from the provision of the information. More importantly, it does not overcome the evidentiary purpose that the first test results were intended to serve for the purpose of the application.
The plaintiff, in his response to the enquiries about English tests on the application form, provided the first test results for the purpose of his visa application. The responses were given, and the first test results identified, as evidence to satisfy a criterion so that his application could proceed and be considered. It did not matter for the purposes of s 57(1)(c) that the plaintiff provided the means by which the results could be obtained rather than the results themselves.
The facts of this case are unusual. The plaintiff knew the first test results constituted information which did not support his application, but he was obliged to identify them, as the only evidence he had on the question of competency, in order that the application proceed. Nevertheless the objects of s 57(1) and (2), which inform the operation of s 57(1)(c), are met. The plaintiff knew of the relevance, indeed the importance, of the first test results to his visa application when he informed the prospective decision-maker of them.
No obligation on the part of the delegate arose under s 57(2) of the Migration Act with respect to the first test results. They were not relevant information within the meaning of s 57(1). The application must be dismissed with costs. These costs are to include the costs of the application for remitter which was determined in this Court on 1 November 2012.