Case: NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195
Outcome: referred to
The present case is on all fours with NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195. The appellant in NBKT provided written submissions to the Tribunal in support of her application for review (which consisted in a letter from her advisers and a statement by herself), expanding upon the claims stated in her protection visa application and introducing further claims. In NBKT Young J (with whom Gyles and Stone JJ concurred) held that by filing written submissions with the Tribunal that expressly referred to and incorporated the statement of grounds which were attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application. There was therefore little doubt that she intended the Tribunal to look at the visa application and its attachments. Young J held that this was a sufficient basis for the conclusion that the information was given by the appellant in that case for the purposes of the review and was excepted by s 424A(3)(b) from the duty of disclosure. 38 The appellant's statement in his application for review and in his written submissions indicate he intended the Tribunal to look at the visa application and the statement in it and to supplement that statement by reference to the application for review and written submissions. 41 In NBKT Young J considered in obiter whether testimony at the Tribunal hearing was given by an applicant for the purposes of s 424A(3)(b) in circumstances where it consisted in responses to questions asked by the Tribunal member. Young J agreed with the approach taken by Heerey J in VWBF . 42 NBKT is Full Court authority that where an applicant adopts a protection visa application at a Tribunal hearing, whether by volunteering such adoption, or in answer to a question, the applicant gives the information in the protection visa application to the Tribunal. 43 The appellant claims that the Tribunal should have sought evidence from, or relating to, Mr Meng, his former migration agent, because he was responsible for entering incorrect information in the statement in the protection visa application. 44 For the reasons set out above the Tribunal did not have a duty to obtain evidence. There could be no non-compliance with s 424 of the Act in respect of the Tribunal's failure to obtain evidence from or about Mr Meng. 49 I am of the opinion that the appellant's express invitation to the Tribunal, in his application for review ("Section D Your reasons for making the application") to "Please read my statement submitted to the Immigration Department" constituted that statement in its entirety as "information" which the appellant "gave" for the purpose of his application. Accordingly s 424A(3)(b) of the Act had application: NBKT v Minister for Immigration and Multicultural and Indigenous Affairs at [63]. Furthermore his statement in his written submissions to the Tribunal, referred to above that he would like to provide further information, underlined his intention that the Tribunal should consider his earlier statement for the purposes of his application.