Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; [2006] 156 FCR 419
Outcome: considered
On 18 August 2006 the hearing of this matter was adjourned pending delivery of the decision of the Full Court of this Court in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; [2006] 156 FCR 419 which considered the nature of the Tribunal's obligations under s 424A of the Act. The hearing was again adjourned on 13 February 2007 to 28 May 2007 so that a copy of the transcript of the Tribunal's hearing could be provided to the Court. 10 At the hearing on 28 May 2007 the appellant sought leave to file an Amended Notice of Appeal which claimed as follows: '1. The Refugee Review Tribunal breached s 424A(1) of the Migration Act 1958 (Cth), in that the information provided by the Appellant in his Statutory Declaration sworn 10 February 2003 in support of his protection visa application was not republished to the Tribunal and accordingly that information does not fall within the exception in s. 424A(3). ' For the reasons set out hereunder the Court granted leave to the appellant to rely on the Amended Notice of Appeal. 11 The Minister submits that NBKT determined that for the purposes of s 424A(3)(b) no distinction should be drawn between the circumstance in which an appellant provides information to the Tribunal 'in chief' rather than orally in response to questions asked by a Tribunal member during a hearing before the Tribunal. Accordingly, to satisfy the requirement of s 424A(3)(b) of the Act, it is sufficient for the appellant to provide information orally to the Tribunal, and there is no requirement that such information be provided in writing. 13 The appellant submits that NBKT establishes that if the information relied upon by the Tribunal was communicated by an applicant by way of responses to questions asked by the Tribunal concerning the protection visa application, the exception provided by s 424A(3)(b) of the Act will apply if the nature of the information is uncontentious, foundational or basic. Conversely, the exception in s 424A(3)(b) will not apply if the nature of the information relied upon by the Tribunal is contentious, complex and diverse. 15 The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10] . However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, ' exceptional circumstances ' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings. 17 In SZFXG the Full Court considered whether s 424A(3)(b) of the Act applied in respect of a historical fact, namely the date of the appellant's arrival in Australia, and held that the exception did apply to such technical details. The decision of the Full Court in NBKT adds a further refinement to the principles established by the authorities considered in SZFXG . The Court in NBKT rejected the narrow approach to s 424A and clarifies the circumstances in which the exception provided by s 424A(3)(b) may operate.