First and second grounds
12 These grounds can be considered together. In order to understand them, it should be recorded that the Application for Review Form to be completed by an applicant contains Section G which is headed Decision to be reviewed. The respondent was required to tick one of two boxes, the first of which was "I have attached a copy of the DIMIA decision and covering letter". This box was ticked. The covering letter informed the respondent that her application had been refused, and that the reasons for decision are contained in the attached decision record. The decision record contained details of the home visit.
13 Information provided to the Tribunal by someone other than the applicant has been treated as having been given by the applicant for the purposes of an application where it has been adopted by him or her. See SZEEU (2006) 150 FCR at [91] and SZDPY v Minister for Immigration and Indigenous Affairs [2006] FCA 627 at [36] (SZDPY). Similarly, it has been held that an applicant can incorporate material by reference so that it becomes part of the information given by him or her for the purpose of the application. See for example SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 and VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271.
14 The Magistrate referred to some of these authorities before announcing his conclusion set out at [9]. They may explain his Honour's reference to whether the respondent relied on the home visit material.
15 The word used in s 359A(4)(b) is "gave" not "relied on". The "adoption" and "incorporation" cases ultimately proceed on the basis that because the applicant invited the Tribunal to take particular material into account, he or she can be taken to have given it to the Tribunal. See, for example, M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], SZEEU (2006) 150 FCR at [91] and [179] and NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [51] (NBKT).
16 The present case is not one of incorporation or adoption. The respondent attached the delegate's decision (containing the home visit material) to his application to the Tribunal. Cf SZDPY [2006] FCA at [36]. Doubtless the respondent did not rely on the home visit material in the delegate's decision. Nevertheless he "gave" the Tribunal the delegate's decision and thus gave it the information contained in the delegate's reasons. An applicant's purpose or intention that the Tribunal take some information into account may explain why information not directly given to it is taken to have been given to it by him or her. Resort to an applicant's purpose or intention has no application to a case such as the present where information is physically handed over. Adoption or incorporation cases cannot justify reading down the word "gave" so that it means "relied on".
17 Assistance in understanding the meaning of the expression "information … that the applicant gave for the purpose of the application" in s 359A(4)(b) is found in the two preceding sections. Section 358(1) provides:
An applicant for review by the Tribunal may give the Tribunal:
(a) a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b) written arguments relating to the issues arising in relation to the decision under review.
18 Section 359 provides in part:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
19 Section 358(1)(a) relates to information "the applicant wishes the Tribunal to consider". That will usually be information the applicant thinks will advance his or her case. Section 359(2) on the other hand is not confined to such information. An applicant who has given the Tribunal a written statement under s 358(1)(a) may be invited to give additional information under s 359(1) or (2). That information, if supplied, will not necessarily be information the applicant thinks will assist his or her case. The Tribunal may seek to elicit information particularising some general assertions made in the information supplied under s 358(1)(a). The response may be that the applicant is unable to provide those particulars or the response may simply not contain adequate particularisation. Thus the response may not advance the applicant's case. But it is nevertheless information the applicant has given to the Tribunal. Similarly with s 347(1)(a), which provides that any application for review must "be made in the approved form". The form may require the applicant to provide information on which he or she does not wish to rely. Any such information provided in the form is nevertheless given to the Tribunal.
20 Information need not be "volunteered" in order to be "given" for the purposes of s 359A(4)(b). It can be given in response to a question from the Tribunal rather than propounded by an applicant ab initio. In VWBF v Minister for Immigration and Citizenship (2006)154FCR 302 at [48]‑[50] Heerey J said:
48. For no apparent reason, almost all the discussion of s 424A(3)(b) in the cases proceeds on the basis that the provision uses the word 'provide'. The subsection in fact uses the verb 'to give', which simply conveys the notion of delivering or handing over (Shorter Oxford English Dictionary). If this matter were free from authority, there would be much to be said for the view that an applicant 'gave' information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered. Either way, the information is conveyed from applicant to Tribunal. If we were to read or hear 'At the trial, A gave information about fact X to the court', we would take that as equally comprehending the possibility of A giving evidence about X in chief, or in cross-examination, or in answer to a question from the judge.
49. Likewise, if an applicant says to the Tribunal 'What I said in my visa application is true' and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application.
50. Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision‑maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.
21 In NBKT (2006) 156 FCR at [53] the Full Court approved the above passage. Justice Heerey's reference to earlier authority ("free from authority") is to NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357 (NAZY), which was put forward by the unsuccessful appellant in NBKT as authority for the proposition that information must be put to the Tribunal "in chief", rather than being elicited by the Tribunal's own questions, in order to fall within the exemption in sub‑s (4)(b). The Full Court rejected this proposition at [61] and said at [52] that NAZY was a special case and did not support a proposition of such generality.
22 The word "information" in s 359A(4)(b) is thus not confined to information the applicant thinks will advance his or her case, or information upon which the applicant relies in support of the application. If what is given to the Tribunal is information, it is covered by s 359A(4)(b).
23 After the Magistrate had reserved his decision the respondent filed a supplementary submission drawing attention to the existence of an undated file note headed Record of Home Visit prepared by the officers who conducted the visit (the Record). The Magistrate described the Record as "more expansive" than the material in the delegate's decision. His Honour said at [25]:
Whilst there is no specific evidence as to whether or not the Tribunal member had regard to this document, it was part of the file referred to in the decision. Whether it is part of the reasons for the conclusions reached by the Tribunal is unclear. There is a clear inference that the Tribunal member had regard to this material, as the Tribunal member formed the view that the sponsor was attempting to mislead departmental officers, whereas the delegate had taken the view that there was only a misunderstanding in the telephone conversation.
24 The second and third sentences of the passage quoted at [29] do not sit happily together. At one and the same time it is unclear whether the file note was part of the Tribunal's reasons, though there is a clear inference that it was. In any event, the reason the Magistrate gives for drawing the inference, if that is what he did, is unsound. There is nothing in the file note that could have led the Tribunal to conclude that the sponsor was attempting to mislead the officers. Indeed, in the respondent's written submissions before the Magistrate it is conceded that "The record does not purport to reach a conclusion on this latter aspect" (ie whether the sponsor was attempting to mislead the officers). Accordingly I do not draw the inference the Magistrate may have drawn.
25 If the Magistrate drew the inference, his Honour did not make anything of it. That is to say, his Honour decided the case (as appears at [9]) simply on the basis that the attachment of the delegate's decision to the form did not show that the appellant was relying on the information about the home visit contained in it. There is no finding of breach of s 359A on the basis of the file note.
26 On the assumption that the Magistrate did draw the inference, and that it was properly drawn, the respondent contends that even if the appellant succeeds on the first and second grounds of appeal there has been a breach of s 359A because the Tribunal did not bring the file note to her attention. This must be rejected. The information that would be the reason, or a part of the reason, for affirming the decision under review, namely the home visit, had been given to the Tribunal by the respondent. The information in the file note was the same information as that contained in the delegate's decision, though somewhat amplified. The file note is not itself a reason or a separate issue.
27 The first and second grounds of appeal are made out. It is not necessary to deal with the third. The appeal is allowed. The order of the Magistrates Court is set aside and in lieu thereof it is ordered that the application for review be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.