Information vs Material where it is stored

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Can it be said that "a recording of a previous interview with a visa applicant during which the visa applicant explains her or his claims, and the factual narrative which supports them, is likely always to be “relevant” to a review by the Authority under Part 7AA"?

Question 2: Can it be said that, "where a recording of an interview is not available to the Authority (whether having been lost, deleted or corrupted), or where for some different reason there is an “informational gap”, then the question for the Authority is whether it is necessary for the purposes of the lawful and not unreasonable discharge of its review task to remedy the “informational gap”, and if so how"?

Question 3: In a case where there is an "informational gap", may it be open to the Authority to conclude that there is no need to exercise any power available to it?

Question 4: In answering Question 3, will much "depend on the centrality of the “informational gap” to the particular review being undertaken by the Authority"?

Question 5: Can it be said that s 473CB(1) requires the Secretary to give the Immigration Assessment Authority (IAA) to give the media or record in which that information is stored or located, as opposed to the information itself?

Question 6: Does the phrase "any other material" in s 473CB(1)(c) serve the additional purpose of not confining "review material" to the "material" before the delegate? In other words, does the phrase extend to "material in the possession of the Secretary but, at the point of it being given to the Authority, not known to the applicant and not known to the delegate"?

Question 7: Can it be said that the "information" provided to the delegate "could never be" new information within the meaning of s 473DC(1)?

Question 8: Does medium in which information is stored need to be a "hard copy" medium in order to constitute "material" within the meaning of s 473CB?

Question 9: In BVC20, the FCA held that, although "information provided by an applicant orally during an interview, for example, is not a tangible item or thing", it would nevertheless "plainly be “material” for the purposes of s 473CB". If the answer to Question 5 is "yes", is it possible to reconcile that answer with BVC20 by implying into the scheme of Part 2 Division 3 and also in the "review on the papers" mechanism created by Part 7AA of the Migration Act an obligation to "create a permanent record of information given to the delegate by a visa applicant – whether that be because the delegate has been shown a digital photograph without being given a hard copy (BVC20) or because of the need to record what a visa applicant says in an interview (this appeal)"?

Question 10: In BVC20, the FCA held that the visa applicant had "provided" the digital photograph to the delegate, by showing it to her. The FCA went on to hold: "The problem for the Secretary was that a copy of the photograph was not in the Secretary’s possession or control. That problem was not necessarily the appellant’s fault. The problem was as much the product of the fact that the delegate did not take appropriate steps to ensure that a record or copy was made and retained of all the material that was provided by the appellant during the interview. That was the delegate’s responsibility". The FCA then suggested a "workaround" for that problem: the IAA could have simply asked for the Secretary to "provide it with a copy of the photograph, given that it was part of the review material that should have been sent to the Authority pursuant to s 473CB". Would a better approach bee to "see the delegate as having a responsibility to ensure that he or she maintains a proper record of what is given to him or her by a visa applicant in support of their visa application, taking into account the visa applicant’s right in s 55(1) of the Act"?

Question 11: If the answer to Question 10 is "yes" and either no record is made or an incomplete or inaccurate record is created, may this on any review then lead to a contravention of s 473CB(1), depending on the facts?

Question 12: Will it be for the IAA "itself to determine the significance of any such gap to the conduct of its review, acting reasonably and rationally" and what should be done about the fact of missing material?

Question 13: Can it be said that, "if the Authority determines there is an “informational gap” which needs to be filled in order for it to conduct its review lawfully, then the reality that an interview may involve a visa applicant giving a narrative which overlaps with aspects of what she or he told a delegate, will not prevent the exercise of the interview power"?

Question 14: If the IAA conducts its own interview in order to fill lan "informational gap", can it be said that the "words spoken to the Authority, the demeanour and reactions of a visa applicant, ... are all capable of rendering the interview as a whole, "new information"?

Question 15: Would a corrupted recording "properly be considered as falling within the statutory concept of “review material”", within the meaning of s 473CB?

Question 16: Is there a "qualitativeand legal difference between an “interview” in Part 7AA and a “hearing” in Part 7"?

The FCAFC answered those questions as follows: