Federal Court: in the context of a review by the Immigration Assessment Authority, were the photos of the scarring previously shown by the Appellant at an interview to a delegate "new information" for the purposes of s 473DC of the Migration Act 1958? Did the fact that the photos were taken many months after the interview make any difference? Further, if the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions?
The Appellant applied for a protection visa and a delegate of the Minister conducted an interview in relation to that application.
At the interview, the Appellant showed the delegate some scarring on his abdomen, "which he claimed was a result of the kidney problems and surgery upon both of which he relied as to why he should be granted a [protection] visa".
A delegate refuse to grant the Appellant a protection visa. As the Appellant was an "unauthorised maritime arrival", the matter was referred to the Immigration Assessment Authority (IAA) for review pursuant to Pt 7AA of the Migration Act 1958 (Cth).
The Appellant sent the IAA photos of scarring in his abdomen that were taken "many months" after the interview with the delegate.
The IAA refused to take into consideration the photos as it found that: they were "new information" pursuant to 473DC; and that there were no grounds for accepting them pursuant to s 473DD. Those provisions read as follows:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The IAA affirmed the delegate's decision, after which the Appellant applied to the Federal Circuit Court (FCCA) for judicial review of that decision.
The FCCA dismissed the judicial review application and the Appellant eventually applied to the Federal Court (FCA) for appeal of the FCCA's decision. A Full Court of the FCA (FCAFC) heard the appeal.
In reality, the FCAFC heard an appeal from 2 decisions of the FCCA together, as those decisions involved a father and his son, but we refer to the appellant father as the "Appellant" for the purposes of this article.
The questions to the FCAFC were as follows:
Question 1: If the photos of the Appellant's abdominal scarring had been taken contemporaneously with the delegate interview, would those photos have constituted "new information" under s 473DC of the Act?
Question 2: Did the fact that the photos were taken many months after the interview make any difference in answering whether they constituted "new information"?
Question 3: If the delegate ruled upon the eligibility of both primary and secondary applicants through a single decision record, does it mean that the IAA could not make separate decisions? Relevantly, subsection 36(2) of the Act read as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
The FCA answered those questions as follows: