Federal Court. Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information” (i.e. information that is not capable of being believed)? If so, can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the holding of concerns about the veracity of the new information for the purposes of 473DD of the Migration Act 1958 (Cth) the same as concluding that the new information is not “credible personal information”, that is that the new information is not capable of being believed?
Question 2: If the answer to Question 1 is "yes", can it be said that, in fact, "the mere conclusion of “concerns” about the new information necessarily means that the information was capable of being believed"?
Question 3: Does the respondent in a judicial review application need to raise the materiality of an error for it to be in issue?
Question 4: In determining whether to allow a ground of appeal not agitated in the court below in the form of a ground of judicial review, can it be said that, while "Minister is the subject of some prejudice as a result, in that the Minister does not then have a right of appeal, that prejudice is insignificant compared to the prejudice the appellant would suffer is leave to raise ground 1A is refused. In this regard it is also relevant that"?
Question 5: In determining whether to allow a ground of appeal not agitated in the court below in the form of a ground of judicial review, is it relevant that the respondent has had the opportunity to make written and oral submissions about the new ground?
Question 6: In determining whether to allow a ground of appeal not agitated in the court below in the form of a ground of judicial review, is it relevant that, "while there is no right of appeal, the Minister may seek special leave to appeal to the High Court [from the FCA's decision]"?
Question 7: In determining whether to allow a ground of appeal not agitated in the court below in the form of a ground of judicial review, is it relevant that "the prejudice to the [respondent] in respect of costs can be ameliorated by not making any order disturbing the costs order below"?
The FCA answered those questions as follows: