s 473DC: footnotes “before the Minister”?

Federal Court. Delegate's decision to refuse to grant Appellant a protection visa contained footnote references to documents that were not discussed in delegate's decision. Those documents were adverse to Appellant's claims. IAA, on review, discussed and relied on those documents. Appellant argued to the Federal Court that: "primary rule" under s 473DC was that the IAA conducts a review on the papers by reference to the material "before the Minister"; those documents were not before the Minister, as they were not discussed by delegate, but merely footnoted; thus, those documents were "new information" as defined under s 473BB, which meant that IAA was limited as to the circumstances in which it could consider them.

The question to the Federal Court (FCA) was whether the footnoted documents were "before the Minister" for the purposes of s 473DC of the Migration Act 1958 (Cth) or whether they were "new information" as defined under s 473BB.

The FCA answered that question as follows:

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