SZVCZ v Minister for Immigration and Border Protection

Federal Court of Australia (Full Court)|2017-08-18|Before: Logan J, Markovic J, Siopis J, Markovic JJ

The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SIOPIS J: 1 I have had the advantage of reading the draft reasons for judgment of each of Logan J and Markovic J. The draft reasons for judgment of Markovic J set out in detail the background and arguments advanced by each of the appellant and the first respondent. I, like Logan J, gratefully adopt her Honour's draft reasons for judgment in these respects, and the abbreviations used by her Honour. 2 I agree that the appeal should be dismissed because, for the reasons given by Markovic J, the Asserted Information is to be characterised as information falling within the "information" described in s 424A(3)(a) of the Migration Act 1958 (Cth). 3 In my respectful view, once it is determined that the Asserted Information is of a nature that falls within s 424A(3)(a) it follows that it is not information falling within s 424A(1) of the Migration Act. This is because it is necessary to construe s 424A as a whole, and s 424A(3) declares that to be the case. The consequence is that once the second ground of appeal fails on the grounds that the Asserted Information falls within s 424A(3)(a), axiomatically, the first ground of appeal also fails on the grounds that it is not information to which s 424A(1) applies. 4 Accordingly, the appeal is dismissed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

LOGAN J: 5 I have had the privilege of reading in draft the reasons for judgement of Markovic J. I agree that this appeal must be dismissed. That is because, for the reasons given by her Honour, I agree that what she terms the "Asserted Information" falls squarely within the exception in s 424A(3)(a) of the Migration Act 1958 (Cth) (the Act). 6 I respectfully disagree, for the reasons which follow, that the Asserted Information was not "information" for the purposes of s 424A(1) of the Act. In these reasons, I gratefully adopt the summary of the course of proceedings, issues and submissions of the parties offered by Markovic J, and, for consistency, her Honour's various abbreviations. 7 A number of propositions about s 424A are settled. 8 One is that, "the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case": SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR), at [17]. As in that case, the "reason, or a part of the reason, for affirming the decision that is under review" was that the appellant was not a person to whom Australia owed protection obligations under the Convention. The alternative, "part of the reason" in s 424A(1)(a) necessarily means that the "information" to which that paragraph refers need not, in itself, supply the reason for a conclusion that an applicant is not one to whom Australia owed protection obligations under the Convention. It is sufficient, to adopt a description employed in SZBYR, at [18], if it is a "relevant step" towards rejection of the claim for the visa. 9 Another is that s 424A depends upon the Tribunal's ""consideration", that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review": Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507, at [24]. 10 Yet another is that, in respect of s 424A(1)(a), "information" "does not encompass the Tribunal's subjective appraisals, thought processes or determinations": VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549, at 24 (citing earlier authority in the Court), approved by the High Court in SZBYR, at [18]. 11 Yet as Allsop J (as his Honour then was), Heerey J agreeing, observed in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, at [95], "the distinction can become very fine". I consider that this is just such a case. 12 The verb "would", the subjunctive of "will", meaning "the feeling or expression of a conditional or undecided desire or intention" (Oxford English Dictionary, Online Edition), is employed in s 424A(1)(a). As was observed in SZBYR at [17], it forms part of a verb cast in the future conditional tense, "would be". To me this means that an item either taken alone or in conjunction with others need not carry with it an inevitability of the rejection, denial or undermining of an applicant's visa claim, only that the Tribunal "considers" that there is such a potentiality. Adopting this construction is in harmony with the overtly expressed purpose of s 424A(1)(b) in respect of information to which s 424A(1)(a) applies, which is to "ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review". The presence of the word "why" in s 424A(1)(b) means that the Tribunal's thought processes are not irrelevant, only that their disclosure to an applicant is, subject to the exceptions found in the section, dependent upon the existence of "information" for the purposes of s 424A(1)(a). 13 Each item in the Asserted Information had been sought out, copied and retained by the Tribunal. It is not hard to see why. Each might form a relevant step in a chain of reasoning as to the absence of satisfaction as to a well-founded fear of persecution on the basis claimed by the appellant. Inferentially, the Tribunal must be taken to have "considered" that, potentially, these items might form part of the reason for affirming the decision that was under review. Why else copy and retain them? That inference is open even putting aside, as SZBYR at [17] apparently mandates, the reasons for decision which the Tribunal subsequently published. 14 It does not, with respect, matter that, in itself, an item might be "neutral". Indeed, it is what the Tribunal, not this Court, "considers" which is pertinent. This apart, the presence of the alternative "part of the reason" in s 424A(1)(a) demonstrates that neutrality if viewed in isolation does not prevent an item from being "information" for the purposes of s 424A(1)(a). The use of "the reason, or a part of the reason", according to the Tribunal's consideration, as a premise in s 424A(1)(a) recognises that a particular item of information, considered alone, might not supply a basis for the rejection, denial or undermining of an applicant's visa claim, even though, considered by the Tribunal in conjunction with other items of information, it has that potential. This type of analytical approach is hardly novel. Fact finding (here, "satisfaction") in administrative and also judicial decision-making is often the product of weighing up various items of evidence. Nor is this process confined to public administration or the exercise of judicial power. For example, known as the "All-source Approach" it is, and long has been, the norm in the intelligence officer's craft - "The most useful and complete assessments are usually achieved by fusing data from multiple sources" - Australian Army, Land Warfare Doctrine, LWD 2-0, Intelligence, 2014, Chapter 1, paragraph 12d (https://www.army.gov.au/sites/g/files/net1846/f/lwd_2-0_intelligence_full.pdf - declassified version accessed, 1 June 2017). 15 In reviewing a decision of the Minister or his delegate about a protection visa application, the Tribunal makes, materially, an evaluative judgement, on the basis of the whole of the information before it (which may include evidence orally given by an applicant or others at a hearing), as to whether it is satisfied that an applicant is a person to whom Australia has protection obligations under the Convention. It is hardly subversive of that evaluation and consistent with an evident purpose of s 424A if, in making that evaluative judgement, the Tribunal has the benefit of such comment, if any, as an applicant may care to make in respect of information which it considers would at least be a part of the reason, for affirming the decision that is under review. 16 For these reasons, all of the "Asserted Information" was, in my view, "information" for the purposes of s 424A(1)(a). It is just that none of it was "specifically" about either the appellant or any other person. It was just about a class of persons who were attendees at schools run by the Christian church in Pakistan generally or at Forman Christian College in particular. One way of describing that class is Old Boys or Old Girls of such schools or that school. That being so, all of the Asserted Information fell within s 424A(3)(a). That meant that the Tribunal was not subject to any obligation under s 424A. As it happened, the Tribunal did put the Asserted Information to the appellant for comment in the course of the hearing. It is hardly to be criticised for taking this eminently fair step. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

MARKOVIC J: 17 The appellant is a citizen of Pakistan and a Sunni Muslim. He first arrived in Australia on 29 June 2011 on a sub-class TR 676 tourist visa granted on 18 June 2011 for a single entry of three months. He departed Australia on 20 September 2011. On 14 September 2012 the appellant returned to Australia on a second sub-class TR 676 tourist visa issued on 31 July 2012 for a single entry of one month. On 11 October 2012 the appellant lodged an application for a Protection (Class XA) visa (Visa). 18 On 2 August 2013 a delegate of the first respondent (Minister) refused to grant the Visa to the appellant. The appellant applied to the second respondent, then the Refugee Review Tribunal (Tribunal), for review of the delegate's decision. On 26 August 2014 the Tribunal affirmed the decision of the delegate not to grant the appellant the Visa. 19 The appellant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court of Australia (Federal Circuit Court). On 4 November 2016 that application was dismissed: SZVCZ v Minister for Immigration & Anor [2016] FCCA 2840 (SZVCZ). It is from that order that the appellant now appeals. 20 At issue in this appeal is the operation of s 424A of the Migration Act 1958 (Cth) (Act) and whether the primary judge erred in finding that certain information was not "information" for the purposes of s 424A.

the appellant's claims 21 The appellant's claims for protection were set out in a statutory declaration made on 23 October 2012. 22 The appellant claimed that three generations of his family, starting with his maternal grandfather, have suffered persecution from fundamentalist Muslim groups because of their association with Christians. He claimed that he has been seriously harmed and that he fears returning to Pakistan because he believes that he will face further persecution. 23 The appellant claimed that his family is Muslim but that his maternal grandfather, his grandfather's children and he had attended Christian schools. His grandfather developed close associations with the Christian educators and in 1982 donated land to the Baptist mission, as did his mother and his mother's cousin. The appellant claimed that, after the donations of land were made, fundamentalist Muslim groups turned against his family and campaigned for a social boycott. From the late 1980s their campaign was stepped up. The appellant referred to the following events: in 1988 religious extremists burned down the appellant's family's dairy shed; in 1994 fundamentalist groups laid siege to a house in which the appellant and members of his family were holidaying for two days, firing guns until the police came to rescue them; at school the appellant was bullied and abused; in 2004 the appellant was attacked by extremist gang members with long beards. He was on a motorbike when he was stopped, pulled off the motorbike and beaten until he lost consciousness. The appellant claimed that his assailants had said that he was supporting Christianity and that he was a "Murtad" (an infidel); in 2008 the appellant's neighbour, who was associated with the extremists and who had an affiliation with the local religious school, together with other extremists and students, attacked the appellant's home. They assaulted the appellant, his mother, grandfather and sister, while saying that the appellant and his family were converts to Christianity; in 2009 extremists broke into the appellant's house, stole valuables and made a cross on the house; and in or about February 2011 the appellant and his mother were stopped on their way to the market and accused of being American spies and of having converted to Christianity. They were taken to the police station and were beaten by the police. 24 After the events of 2011 the appellant's mother decided that they should leave Pakistan. The appellant's mother had siblings living in Australia and New Zealand so they planned to travel to Australia. His mother and sisters departed first. The appellant then applied for his visa and, while waiting to leave, kept a low profile. 25 By the time the appellant arrived in Australia his mother and sisters had gone to New Zealand. At his uncles' suggestion he applied to go to New Zealand but his application for a visa was refused. The appellant said that it was clear that his uncles in Australia did not want to support him and they told him that he could not stay. Although he did not wish to return to Pakistan, he felt that he had no choice. 26 The appellant claimed that when he returned to Pakistan in September 2011 he suffered in the same way as he had previously. He felt isolated without his family, all of whom had left Pakistan. In 2012 the appellant applied for his second visa to Australia, fearing for his life after a story spread that a Christian girl had burned the Koran.

the Tribunal 27 On 12 March 2014 the Tribunal invited the appellant to attend a hearing to give evidence and present arguments relating to the issues in his case. 28 The appellant attended the hearing. In the course of the hearing the following exchange took place between the Tribunal member and the appellant: MEMBER: Christian schools are considered among the best in Pakistan. APPELLANT: There are extremists in that country who don't like that and they just create trouble or problems. MEMBER: Christian schools are extremely popular with Muslim families. APPELLANT: No, the situation in Pakistan is very bad. All those incidents which have taken place in last few years with the Christians. MEMBER: Pakistan's most prominent leaders including the current Prime Minister Nawaz Sharif attended Christian schools. APPELLANT: But when you look at the common man their problem because of these issues are different than a person of his status. MEMBER: You've said that your maternal grandfather attended Forman Christian College in Lahore. APPELLANT: Yes. MEMBER: It celebrated its 150th anniversary last year. APPELLANT: The college? MEMBER: The college. Among the more than 2000 guests were two of Pakistan's five provincial governors. APPELLANT: I'm not aware of that. MEMBER: The point I'm trying to make, [appellant], is that the picture that you're trying to draw of problems your family had because your maternal grandfather donated some land to the Christian mission back in 1982 is a little difficult to accept. 29 Those questions appear to have arisen from the content of two articles accessed on 8 April 2014, which the parties accepted were sourced by the Tribunal: the first article, titled "Christian schools closed in Pakistan", included: Pakistani Christians closed missionary schools yesterday in protest after a Muslim mob torched more than 100 Christian homes following allegations of blasphemy. The schools are considered among the best in Pakistan and are extremely popular with Muslim families, with pupils taught in English in a disciplined and effective learning environment. (emphasis added) the second article, titled "Pakistan's Christian Schools Thrive Under Support of Muslim Leaders", included: Although the Christian population is barely 3 million, or less than 2 percent of Pakistan's population, Christians have had a large impact on the country's education. Many of Pakistan's most prominent leaders - including the current prime minister, Nawaz Sharif, the assassinated prime minister, Benazir Bhutto, and former President Pervez Musharraf - attended Christian schools. Christian schools directly influenced the children in Pakistan for a long time - and despite the recent increase in violence, they have managed to both survive and thrive. Forman Christian College celebrated its 150th anniversary last year, and when Ahmed visited the school in November, he saw the resiliency of the Christian schools in action: "Besides the 750 graduating students and more than 2,000 guests gathered on the campus of Forman ... were the university's American rector and two of Pakistan's five provincial governors." (emphasis added) 30 The Tribunal had difficulty accepting that the appellant had a well-founded fear of persecution if he returned to Pakistan because his grandfather and mother had donated land to a Christian mission in 1982. The Tribunal accepted that the appellant's grandfather, uncle and mother had donated land to the Christian mission, but it did not accept that any of the events that he described were linked to those donations. It found that they were unrelated incidents. The Tribunal did not accept that, if the extremists had been as upset by the donation of land in 1982 as the appellant claimed, they would have waited until 2008 to attack the family home or that the family would have continued living at the same address after the attack. The Tribunal also noted that the appellant continued to live at the family home after the other members of his family had left Pakistan and for almost a year on his return to Pakistan in September 2011. 31 Central to the issues in this appeal is [19] of the Tribunal's decision record, where it said: As I put to [the appellant], I consider it relevant that Christian schools are considered among the best in Pakistan and are extremely popular with Muslim families, that Pakistan's most prominent leaders including the current Prime Minister, Nawaz Sharif attended Christian schools, that Forman Christian College, which he has said that his maternal grandfather attended, celebrated its 150th anniversary last year and that among the more than 2,000 guests were two of Pakistan's five provincial governors. [The appellant] said that there were extremists in the country who did not like this. He repeated that the situation in Pakistan was very bad and he referred to incidents which had taken place with Christians in the last few years. He said that the situation of common men was different from the situation of someone like the Prime Minister and he was not aware of the celebrations for the 150th anniversary of Forman Christian College. However, as I put to him, I consider that this information makes it difficult to accept that his family had the problems he claims because they donated land to a Christian mission in 1982. 32 A footnote to this paragraph of the Tribunal's decision directs the reader to the two articles referred to at [29] above. 33 The Tribunal also had difficulty accepting the appellant's claim that he was accused of being a spy or a Christian convert because of his short visit to Australia in 2011. The Tribunal noted that the Department of Foreign Affairs and Trade had advised that many Pakistanis have relatives living in Western countries; that those living abroad return to Pakistan frequently to visit relatives; and that those persons are not at any increased risk because they have spent time in Western countries. Nor was there any evidence that individuals would be subject to discrimination or violence because they spent time in Western countries. 34 The Tribunal did not accept that the appellant had the problems he claimed because his family donated land to the Christian mission in 1982. Nor did it accept that as a result of having donated land, clothes, money and other goods to the Christian mission or having attended Christian schools the appellant and the other members of his family were perceived as having converted to Christianity. While the Tribunal accepted that some of the incidents referred to by the appellant had occurred, it did not accept that they were the work of extremists who objected to the fact that his family had donated land to the Christian mission in 1982. 35 The Tribunal concluded that it was not satisfied that the appellant was a person in respect of whom Australia has protection obligations and therefore that he did not satisfy the criterion in either ss 36(2)(a) or 36(2)(aa) of Act.

Federal Circuit Court 36 The appellant's sole ground of review before the Federal Circuit Court concerned the nature of certain information. The primary judge identified two issues for determination: first, whether that information was "information" within the meaning of s 424A(1) of the Act; and, secondly, if so, whether the information was of the sort referred to in s 424A(3)(a) of the Act and thus excluded from the operation of s 424A(1). 37 The information in issue was that referred to in [19] of the Tribunal's decision record. In particular, the appellant contended that the statements were information to which s 424A(1) applied. Those statements were that "the current Prime Minister, Nawaz Sharif, attended Christian schools"; and "that among the more than 2,000 guests" who had attended the 150th anniversary "were two of Pakistan's five provincial governors" (Asserted Information). He contended that, unless the Tribunal dealt with the Asserted Information in accordance with s 424AA of the Act, it was required to comply with s 424A(1). 38 Before the primary judge and before this Court the Minister accepted that the Tribunal did not do what s 424A(1) of the Act would require it to do, nor what s 424AA would permit it to do, in relation to the Asserted Information. Hence, the two issues identified at [36] above arose for determination. 39 The primary judge first considered s 424A(1) of the Act and the expression "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review". He referred to his own decision in SZQQA v Minister for Immigration and Border Protection (2014) 293 FLR 243; [2014] FCCA 1923, the decision of a Full Court of this Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 and the decisions of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) and Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (SZLFX). The primary judge concluded that the information covered by s 424A(1) "must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant's claim for protection, or is evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant's claim for protection": SZVCZ at [18]. 40 The primary judge considered what the Tribunal had said to the appellant at the hearing based on the transcript, which was in evidence, and the Tribunal's reasons. Having done so, the primary judge concluded that the Asserted Information was not information within the meaning of s 424A(1) of the Act: SZVCZ at [22]. This was because the information was not about the three individuals the Tribunal had identified. Rather, the Tribunal referred to those individuals "as examples of members of the class of 'Pakistan's most prominent leaders'": SZVCZ at [20]-[21]. 41 The primary judge then considered whether, if he was wrong in his conclusion about whether s 424A(1) applied, the Asserted Information would, in any event, come within the exception in s 424A(3)(a) of the Act. His Honour concluded that the Asserted Information was about the class of persons of which the Tribunal identified those persons to be members, namely, "Pakistan's most prominent leaders", and thus came within the exception in s 424A(3)(a). The primary judge said that that was so because the Tribunal mentioned those three persons in order to provide an example of members of "Pakistan's most prominent leaders": SZVCZ at [26].

the appeal 42 The appellant relies on an amended notice of appeal which raises two grounds. The first is that the primary judge erred by finding that none of the Asserted Information was information within s 424A(1) of the Act. The second is that the primary judge erred by finding that s 424A(3)(a) applied to all of the Asserted Information. Particulars are provided for both grounds.

Statutory scheme 43 The issues in the appeal concern the application of s 424A of the Act, which relevantly provides: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or …

Principles 44 The construction of s 424A of the Act and the circumstances in which the obligation under s 424A(1) is enlivened were considered by the High Court in SZBYR. There a majority of the Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said at [17]-[18]: 17 Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the tribunal", or "the tribunal's published reasons". 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. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. 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 on the facts of the case. Here, the appropriate criterion 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. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". 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. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. 18 Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (footnotes omitted) 45 In SZLFX the High Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ) considered the operation of s 424A of the Act in connection with a file note made by an employee of the then Refugee Review Tribunal. That file note recorded a telephone conversation concerning Falun Gong activities at Belmore Park, where the first respondent claimed to practice Falun Gong. The first respondent was not given notice of the existence of the file note. At [22] the High Court acknowledged that "for s 424A(1)(a) to be engaged, the material in question should in its terms contain a 'rejection, denial or undermining' of the review applicant's claim to be a refugee". The Court also endorsed the view of a Full Court of this Court in SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 (Dowsett, Bennett and Edmonds JJ) that s 424A depends on the Tribunal's "'consideration', that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review": at [24]. 46 In Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298 (SZHXF) a Full Court of this Court (Tamberlin, Gyles and Stone JJ) considered s 424A(3)(a) and whether the information in question in that case was information about the first respondent or another person. The Court said at [19]: In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant "information" is "just about a class of persons of which the applicant or other person is a member". The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 563 that the reference to the "class of persons" in s 424A(3)(a) "is not another criterion to be met". Rather, the reference "is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it": see also VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at 95 (per Kenny J) and 99 (per Downes J); NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17]. (original emphasis) 47 In other words, the reference to a "class of person" in s 424A(3)(a) is not itself a criterion to be met in order for the exception to apply. The criterion is that the information is not specifically about the applicant or another person.

Ground 1: is the Asserted Information "information" for the purposes of s 424A(1)? 48 The appellant submitted that [19] of the Tribunal's decision includes at least three distinct propositions: first, "that Christian schools are considered among the best in Pakistan and are extremely popular with Muslim families"; secondly, "that Pakistan's most prominent leaders including the current Prime Minister, Nawaz Sharif, attended Christian schools"; and, thirdly, "that Forman Christian College, which he has said that his maternal grandfather attended, celebrated its 150th anniversary last year and that among the more than 2000 guests were two of Pakistan's five provincial governors". The appellant contended that the Tribunal relied on this information to make a finding that it was "difficult to accept that [the appellant's] family had the problems he claims because they donated land to a Christian mission in 1982". The appellant noted that this information was put to him during his oral hearing without compliance with the procedures under ss 424A or 424AA, a matter that, as I have already observed, is not in dispute. 49 The appellant's primary submission was that the Tribunal's decision record should be taken at face value. The appellant submitted that: (1) in relation to the two provincial governors' attendance at the 150th anniversary of Forman Christian College, contrary to the findings of the primary judge, the Tribunal did not refer to the two provincial governors as examples of Pakistan's most prominent leaders. There was nothing in the Tribunal's evidentiary record to suggest that provincial governors are in the same class of prominence as Prime Minister Sharif, the late Ms Bhutto or the former President Musharraf. The information about their attendance at the 150th anniversary was considered distinctly by the Tribunal in its decision record and put to the appellant as a different proposition to that concerning Prime Minister Sharif and other persons who attended Christian schools. There was no evidence that the two provincial governors attended Christian schools as students and there was no evidence about the other three provincial governors. The Tribunal must have relied on the Forman Christian College information to connect the information about the governors' apparent support for that school directly to the appellant's claims based on his family. There was no need for the Tribunal to refer to the appellant's grandfather in this context if that was not the case; and (2) in relation to the reference to Prime Minister Sharif, the Tribunal referred to him to give some content to the very ambiguous phrase "Pakistan's most prominent leaders". The reference to Prime Minister Sharif had further significance than just the broader, ambiguous class. The inclusion of that information indicated that the information in [19] of the Tribunal's decision record was not relied upon to prove some broader proposition that "Pakistan's most prominent leaders attended a Christian school" or that "Christian schools were prominent and well respected in Pakistan". The primary judge's conclusion at [22] of SZVCZ, that if there was any information that the Tribunal considered would be within s 424A(1) then it was that "Pakistan's most prominent leaders attended a Christian school", was incorrect and was not reasonably open on the Tribunal's decision record. 50 The appellant submitted that the Tribunal considered that the Asserted Information undermined his claim that his family was persecuted because of their donation of land to the Christian mission. He submitted that that is why the articles were obtained; why the three propositions were put to the appellant at the hearing; and why those propositions were distinctly referred to by the Tribunal in its decision. The appellant further submitted that the Asserted Information was based on evidentiary material and documentation; was not the Tribunal's subjective appraisals, thought processes or determinations; nor relied upon to show gaps or inconsistencies in his claims; but was relied upon to contradict his claims. 51 The Minister submitted that the Asserted Information was not information for the purposes of s 424A(1) of the Act. He submitted that to determine whether particular information comes within the meaning of "information" in s 424A(1) requires focus on whether the Tribunal considered that the information would be the reason or part of the reason for affirming the decision under review. The Minister further submitted that the Court would need to be able to infer that the Tribunal member, at some point prior to his decision, turned his mind to the Asserted Information and considered that it would be the reason or part of the reason for affirming the decision under review. The Minister noted that, while the Tribunal referred explicitly to the information concerning Prime Minister Sharif's schooling and the provincial governors' attendance at the Forman Christian College anniversary, neither of those items of information were, on a proper reading of the Tribunal's reasons, the reason or part of the reason for its decision. 52 The Minister submitted that the Asserted Information was neutral in character but assumed significance, ultimately adverse significance, for the determination of the appellant's claims. It was information that, shorn of analytical context, did not come within s 424A(1) of the Act. That is, the Minister submitted that the fact that the current Prime Minister attended a Christian school or that the provincial governors attended the anniversary of Forman Christian College was information that would not, in its terms, necessarily have any positive or negative impact on the determination of the appellant's claims. However, the Asserted Information assumed significance when placed in the context of the Tribunal's view that Christian schools were popular with Muslim families. The Minister submitted that the Asserted Information did not in its terms constitute a denial, rejection or undermining of the appellant's claims. 53 The operation of s 424A(1)(a) and, more particularly, whether the obligation therein is enlivened is to be determined in advance and independently of the Tribunal's particular reasoning on the facts of a case. The obligation under s 424A(1) will only be engaged where there is information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. As the majority of the High Court said in SZBYR, the reason for affirming a decision that is under review depends upon the criteria for the making of the decision. The Tribunal does not operate in a statutory vacuum. Its role is the making of administrative decisions based on criteria found elsewhere in the Act. Critically, for s 424A(1) to be engaged, the information must in its terms contain a rejection, denial or undermining of an applicant's claims. 54 The appellant's claims are set out at [21] to [26] above. A fundamental aspect of his claims was that, after members of his family donated land to the Baptist mission in 1982, the Muslim community turned against his family. As set out above, while the Tribunal accepted that some of the events referred to by the appellant occurred, it did not accept that they were linked to his family's donation of land. 55 The Asserted Information was, in summary: first, that many of Pakistan's most prominent leaders, including Prime Minister Sharif, the assassinated Prime Minister, Benazir Bhutto, and the former President, Pervez Musharraf, attended Christian schools; and secondly, that two of Pakistan's five provincial governors attended the celebration by Forman Christian College of its 150th anniversary. 56 That information was not of dispositive relevance to the claims advanced by the appellant before the Tribunal: see MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 (Heerey J) at [27]. Rather, it was, in its terms, neutral. It did not contain a rejection, denial or undermining of the appellant's claims, nor did it support the appellant's claims, including his claim to fear harm because of his family's association with Christian educators and because his family donated land to the Baptist mission. 57 The Asserted Information was, as the Minister submitted, of the same nature as the information considered by the Full Court in SZHXF. That is, it was a source of information that the Tribunal considered to be generally reliable and which it then used to weigh and assess evidence about the claims advanced by the appellant. The consequences of that assessment could have supported the claims made by the appellant or it could have undermined them. As the Full Court said in SZHXF at [13]: … Whatever the conclusion, this process of assessment cannot properly be described as materially undermining the applicant's claim. Rather, it is a process which allows the Tribunal to investigate and evaluate the claims advanced by the applicant by weighing his or her evidence against another reliable source of information. Although information derived from such sources is used as part of the Tribunal's process of consideration of the evidence advanced by an applicant, it is not of itself "information" within the meaning of s 424A of the Act, which is required be disclosed to the applicant. 58 The appellant submitted that if a Tribunal member considers that information would in its terms be the reason or part of the reason for affirming a decision then s 424A(1) is engaged. He further submitted that in the present case the Tribunal member did not consider the Asserted Information to be neutral: the Tribunal member sourced it on 8 April 2014; he then put it to the appellant at the hearing; and he referred to it in his decision record at [19]. But that approach places too much emphasis on the process adopted by the Tribunal and the use that the Tribunal subsequently made of the information, as opposed to the character of the information and how the Tribunal assessed it prior to its decision. 59 The character of the Asserted Information was not such as to undermine the appellant's claims to fear persecution in Pakistan because of his family's association with Christian schools and the donation of land to the Baptist mission. At the hearing, the Tribunal member put the Asserted Information to the appellant. It did so for the purpose of giving him an opportunity to comment on it and not in an attempt to comply with s 424A of the Act. The reference to the Asserted Information at [19] of the Tribunal's decision record does not change its character. 60 In my opinion there was no error in the primary judge's finding that the Asserted Information was not information for the purposes of s 424A(1) of the Act.

Ground 2: does s 424A(3)(a) of the Act apply to the Asserted Information? 61 While in light of my conclusion in relation to ground 1 it is not necessary for me to consider this ground, I do so for completeness. 62 The appellant submitted that the primary judge's conclusion that the Tribunal considered the information about Prime Minister Sharif and the two governors to be information about a class of Pakistan's most prominent leaders was incorrect on the face of the Tribunal's decision record; that the information about the three men was considered specifically; and that s 424A(3)(a) did not apply. The appellant further submitted that the primary judge erred in assessing the application of s 424A(3)(a) on the basis of his Honour's "perceived purpose" for which the Tribunal mentioned the information. He submitted that this erroneous approach ignored the patent specificity of the information and involved "pure speculation" about the intentions of the Tribunal. He contended that the information was specifically about three persons, the positions they held and what they did. 63 The appellant submitted that to construe the information as information "about a class of persons of which the … other person is a member" would adopt a construction of s 424A(3)(a) that could potentially render the words "another person" or "other person" otiose. He contended that the reference to "another person" or "other person" in s 424A(3)(a) means that s 424A(1) was intended to apply to information that is not about an applicant. He contended that almost all persons other than an applicant could be identified as relevant to the Tribunal's determination due to their membership of some class, however narrowly and ambiguously described. The appellant further contended that the phrase "class of persons" in s 424A(3) means "groups of persons whose membership can be objectively determined based on general criteria other than the fact of membership" and that the "information" about such a class of persons must be common to or generally applicable to all members. The appellant submitted that the class of "Pakistan's most prominent leaders" has such ambiguity that it cannot be a class of persons within the meaning of s 424A and that the Court could only speculate about who the Tribunal intended to include as a member of such a class. 64 The appellant submitted that, while it was unclear from the Tribunal's decision record, it might be accepted for the purposes of argument that the three men were relevant to his claims for protection because of their political authority and association with Christianity. The appellant submitted that the Tribunal relied upon that information as information that undermined or made the appellant's claims less likely and did not rely upon it to prove anything about a general class to which the appellant or those other persons belonged. He further submitted that Prime Minister Sharif was relevant not only because he was a leader who attended a Christian school but because he was a current Prime Minister with unique power within Pakistan to protect or persecute the appellant. He submitted that the two governors were relevant not only because they were provincial governors but because they attended the anniversary of a school that the appellant's maternal grandfather attended. The appellant said that the information that formed the basis of his complaint in the Federal Circuit Court was specifically about those three men and not "just about a class of persons". 65 The Minister submitted that the primary judge appropriately directed his attention to whether the identified information was specifically about "an applicant or another person" and that, in accordance with the authorities, his Honour was correct in not additionally asking whether the identified information was only about a class of persons of which the appellant or another person was a member. The Minister further submitted that there was no basis to the appellant's submission that the Tribunal relied on the information concerning the Prime Minister because "he was the current Prime Minister who had unique power within Pakistan to protect or persecute the appellant" or that it relied on the information about the governors because they attended the anniversary of a school attended by the appellant's maternal grandfather. 66 The Minister submitted that, consistently with the primary judge's interpretation of the Tribunal's findings, the reference by the Tribunal at [19] to Prime Minister Sharif was by way of example of a "prominent leader" who had attended a Christian school and that, properly construed, the information was not specifically about Prime Minister Sharif but about a class of persons of which he was a member. Similarly, in referring to the governors, the Tribunal did not name them because who they were was not significant and the information was not specifically about them as individuals. The Minister contended that simply because a person is referred to in a report or an article does not mean that the report or article is "about" or "specifically about" that person. 67 In my opinion, the Asserted Information falls squarely within the exception in s 424A(3)(a). It is clearly information that is not specifically about the appellant or another person. Contrary to the appellant's submission, there is no basis upon which it can be said that the Tribunal relied on the information concerning Prime Minister Sharif "because he was the current prime minister who had unique power within Pakistan to protect or persecute the appellant". Nor is there any basis for the appellant's submission that the Tribunal relied on the information about the two governors because "they attended the anniversary of a school in 2013 that the appellant's maternal grandfather attended". Neither the Tribunal's reasons at [19] nor the articles from which the Asserted Information was drawn support that conclusion. Rather, the Tribunal's reasons at [19] demonstrate that the reference to Prime Minister Sharif and the two provincial governors was in the context of their being "prominent leaders". 68 The Asserted Information is similar in character to the information considered by the Full Court in SZHXF. The Full Court held at [22] that reference by the Tribunal to prominent figures in the Ahmadi faith, such as Mirza Ghulam Admad, Jesus Christ and the prophet Muhammad, was not information for the purposes of s 424A(3)(a) of the Act because reference to those figures and any material about how they were perceived by the Ahmadi faith was not information about those figures themselves. It was information about how others perceived such people and the role that such perceptions played in the lives of those who held them. 69 In the present case the Asserted Information was information about prominent leaders in Pakistan who were associated with Christian schools. It was not information specifically about Prime Minister Sharif and the two provincial governors. Those persons were referred to by way of example. 70 The primary judge did not err. He was correct to find that the Asserted Information was not specifically about another person but about a class of persons, prominent leaders.

Conclusion 71 In my opinion, the appellant has not established any error in the decision of the primary judge and the appeal should be dismissed with costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Migration Act 1958(Cth)ss 424A, 424A(1), 424A(3)(a)

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