Federal Court: IAA affirmed visa refusal. Its reasons included: "The report was not before the delegate... I note that the applicant has engaged a representative to assist with the IAA process; however I am not satisfied that the mere engagement of a representative can be considered exceptional". FCA said that "EMJ17 is authority to support the submission that it can be a jurisdictional error to conclude that the absence of 'exceptional circumstances' within the meaning of s 473DD(a) means that the discretion under s 473DC cannot be exercised in favour of getting new information". Does the IAA's decision here "[display] the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist"?
The Federal Court (FCA) said as follows:
14 The Authority dealt in the following way with the submission of the appellant's solicitor that blood feuds lasted a long time (at paragraph 41):
The representative has contended that the applicant's family members have been able to live and remain in Afghanistan without in [sic] problems because the dispute is a blood feud which [sic] and that such disputes 'last for a very long long time'. I have considered the representative's contentions and the information before the delegate regarding blood feuds however I do not accept there is any plausible basis to the assertions that the dispute is a blood feud. The information indicates that blood feuds by their very nature were more likely to occur within the same ethnic group, are not personalised and that extended families living in the same area including adult males are potentially at risk. To the contrary, on the evidence before me the dispute is between two different ethnic groups and none of the applicant's family members who have remained living in the district of Jaghori including the adult males have experienced any problems. I do not accept the dispute is a blood feud.
The questions to the FCA were as follows:
In answering the question of whether the IAA's decision here "displays the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist":
Question 1: can it be said that it "would be an odd thing for the Authority to explain fully its reasoning in relation to s 473DD without any mention of its reasoning in relation to s 473DC", which supports the inference that the IAA did not consider s 473DC at all?
Question 2: can it be said that "the content of new information will often be relevant to whether there are exceptional circumstances justifying the consideration of the information", which supports the inference that the IAA did not consider s 473DC at all?
Question 3: Can it be said that "citing the report is an invitation to get it, and extracting or summarising isolated passages does not give rise to any implication to the contrary"?
Question 4: "in any event [does] 473DC ... make the discretion to get new information conditional on a request from the referred applicant"?
Question 5: Would it "be artificial for the Authority, after deciding that it could not consider the new information, to go back to consider whether to get that information"?
Question 6: Can it be said that "a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error"?
Question 7: Could it be said that the IAA "would have to consider s 473DD twice, because if it decided that s 473DD(b) prohibited it from considering new information provided by an applicant, it would then have to consider under s 473DC(1) whether it should nevertheless get the information itself, and if it did get the information, it would have to turn again to whether s 473DD(a) prohibited it from considering it"?
Federal Court answered the above question as follows:
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