Federal Court. In other to consider "new information", the IAA must, among other things, be "satisfied that there are exceptional circumstances to justify considering the new information" (s 473DD(a)). Can it be said that, if a decision-maker states that "there is already substantial material before me regarding [the applicant's claims] and I have accepted his claims", that would, "by itself, exclude the possibility that there are exceptional circumstances to justify considering 'new information'"? Or can it be said, on the contrary, that the "decision-maker's statement that [it had] accepted the claims of the ... [applicant had] a number of dimensions to it" in the circumstances of this case? With respect, does this Federal Court decision stand in contrast with the High Court's majority judgements in Hossain and SZMTA in 2 respects?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, if a decision-maker states that "there is already substantial material before me regarding [an applicant's claims] and I have accepted his claims", that would, "by itself, exclude the possibility that there are exceptional circumstances to justify considering 'new information'"? Or can it be said, on the contrary, that the "decision-maker's statement that [it had] accepted the claims of the ... [applicant had] a number of dimensions to it" in the circumstances of this case?
Question 2: Can an error be jurisdictional despite not being material to the decision?
Question 3: Does a judicial review applicant bear the onus of establishing that an error, had it not been made, could have led to a different outcome? Or, on the contrary, can it be said that, if it is "simply not possible to say" whether or not the absence of the error could have made a difference to the outcome, "it follows that it is not possible to say that the [error was not material]” and that, therefore, the error was material?
The FCA answered those questions as follows: