Case: NBKT v Minister for Immigration and Multicultural Affairs (2006) ALD 333
Outcome: considered
In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 93 ALD 333, Young J (with whom Gyles and Stone JJ agreed), after reviewing a number of authorities concerning the application of s 424A of the Act, said at [59]-[62]: These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific 'information' for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence-in-chief rather than in answer to questions posed by the Tribunal. In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the tribunal at the hearing. The tribunal's questions arose naturally from the appellant's application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies. The appellant expressly stated the date of her arrival in Australia to the tribunal at the hearing. I do not accept the appellant's argument that s 424A(3)(b) cannot apply because the date was given in response to a question posed by the tribunal. The mere fact that the tribunal elicited a response from the appellant, which confirmed an uncontentious detail of her application, does not render the information incapable of falling within the exemption in s 424A(3)(b). It is not inconsistent with NAZY or SZEEU to hold that the exemption applies in such circumstances, given the nature of the information and the context in which it was communicated. I also find that the appellant 'gave' the date of her arrival in Australia and the approximate date of her protection visa application via her visa application and the written submissions provided to the tribunal by the appellant's adviser. The appellant affirmed that the details of her application were correct. The written submissions contained a statement which expressly referred to the appellant's statement attached to her protection visa application. In that statement, which was dated 17 November 2004, the appellant said that she 'came to Australia on strength of a 457 working visa on 12.3.99'. Thus, for the purposes of s 424A(3)(b) , the information was given in the written submissions: VWBF at [51]. On the basis of that approach, the first respondent contended that such information as the Tribunal relied upon was information given to the Tribunal by the appellant at the hearing so as to fall within the exemption in s 424A(3)(b) to the operation of 424A(1). 30 Clearly, s 424A(3)(b) must be carefully applied according to its terms. It exempts from the operation of s 424A(1) information which the appellant gave to the Tribunal for the purpose of the application to the Tribunal. And the observations of Young J in NBKT [2006] FCAFC 195 ; 93 ALD 333 indicate that the question of fact as to whether particular information has been given to the Tribunal may sometimes be a difficult one, and sometimes the line between giving information to the Tribunal and between adverting in a general way to a collection of material (such as the material presented to the first respondent in support of an application for a protection visa) in a hearing before the Tribunal may be a fine one. Each case must be looked at on its own particular facts. By way of a comparison with the facts in NBKT [2006] FCAFC 195 ; 93 ALD 333, in SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138 at [69] Jessup J concluded that the fact that that appellant's protection visa application contained a particular explanation for the death of his mother, which differed from that advanced by him at the hearing before the Tribunal, was a part of the reason for the Tribunal affirming the decision under review. The fact that he had conveyed that particular explanation in his protection visa information was accepted to be "information" within the terms of s 424A(1) of the Act and had not been given by that appellant in that case to the Tribunal. Consequently, his Honour concluded that there had been a failure to comply with s 424A(1) of the Act.