Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
Outcome: cited
Obligations arise under s 424A(1) in respect of information that the Tribunal considers would be a part of the reason for affirming the decision under review. In the present case, for the reasons already noted, the letter played a part in the Tribunal's reasons for its decision, even if only a subsidiary part. Notwithstanding that a piece of information constitutes only a minor or subsidiary part of the Tribunal's reasons, s 424A is attracted: see SZEEU at 252 per Weinberg J and at 262 per Allsop J; and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (" NBKT ") at [31] per Young J, with whom Gyles and Stone JJ agreed. The Tribunal considered the letter in the form it took, and put the statements about the appellant's psychological condition, which it contained, out of reckoning because the letter did not state the letter-writer's clinical qualifications. The adverse credibility finding, made after the Tribunal had put this letter out of account, was central to the Tribunal's decision. The fact that the Tribunal's reasoning did not proceed in a straight-line way is immaterial. Weinberg J explained in SZEEU at 253 that: The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. 45 As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J. 46 The question whether an applicant gave an item of information for the purposes of his or her review application must be answered by reference to the particular facts of the case. As Rares J said in SZGGT at [36] and [50], these facts must be considered objectively. The nature of the information is also relevant to this inquiry: see NBKT at [59] per Young J. For example, if the Tribunal puts a specific piece of factual information to the applicant in the course of the hearing and the applicant affirms that it is true, then the conclusion may readily be reached that the applicant has given this information to the Tribunal for the purposes of the review.