Case: NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205
Outcome: considered
I am prepared to assume, in the appellant's favour, that the fact that the claim of political interference with the police investigation was made in support of the original applications but not reiterated at the hearing before the Tribunal constitutes "information" for the purposes of s 424A(1) of the Act . However, the Tribunal is only bound to provide particulars of information "that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review." Information will not be "a part of the reason" for affirming a decision unless it is established that the information "contributed in some way, which renders it an operative causal link, to the decision itself": see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 256 [182] ; NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 224 [79] . 16 A written submission was made to the Tribunal on behalf of the appellant. Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal's attention was directed to the appellant's statement in support of her protection visa application. Part of the submission read: "She has also been politically involved as can be seen from the statement she made in support of her protection visa application." As already noted, one aspect of the appellant's political involvement was her work for the UNP which it was said led to the interference by a political opponent. She thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The Tribunal was, therefore seized of the political interference claim. Was it also seized of the "information" that the claim had not been reiterated during the hearing which it conducted? Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-13 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party." See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] . Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute "information" for the purposes of s 424A.