Federal Court: IAA must not consider new info unless: exceptional circumstances exist (s 473DD(a)); and new info could not have been provided to DHA or is credible personal information not previously known (s 473DD(b)). May IAA's satisfaction of s 473DD(b) contribute to its satisfaction of s 473DD(a)? Must it so contribute? If it may, but not necessarily must, so contribute, should it at least usually so contribute? If so, may lack of reference to matters in s 473DD(b) in IAA's reasons lead to an inference that those matters were not considered in determining whether s 473DD(a) was satisfied?
Section 473DD of the Migration Act 1958 (Cth) provided as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority [IAA] must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The questions to the Federal Court (FCA) were as follows:
Question 1: may the IAA's satisfaction of s 473DD(b) contribute to its satisfaction that are "exceptional circumstances to justify considering the new information", pursuant to s 473DD(a)?
Question 1: must the IAA's satisfaction of s 473DD(b) contribute to its satisfaction that are "exceptional circumstances to justify considering the new information", pursuant to s 473DD(a)?
Question 3: if the answers to Questions 1 and 2 are, respectively, "yes" and "no", should the IAA's satisfaction of s 473DD(b) at least usually contribute to its satisfaction that are "exceptional circumstances to justify considering the new information", pursuant to s 473DD(a)?
Question 4: if the answer to Question 3 is "yes" and "there [was] no indication in the reasons as to what the [IAA] understood to be comprehended by the term “exceptional circumstances” in s 473DD(a) ..., [did] the absence of any reference in [those reasons] to the factor in s 473DD(b)(i) ... suggest the [IAA] did not consider that factor was capable of informing its decisions on whether exceptional circumstances were present"?
The FCA answered those questions as follows: