Federal Court (Full Court): s 473DD provides that IAA must not consider new information unless certain preconditions are satisfied. But does that provision expressly or impliedly empower IAA to consider new information? Can it be said that "the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the [IAA] in deciding whether 'exceptional circumstances' exist", pursuant to s 473DD(a)? What factors is IAA "required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD"? Can the "matters concerning the substance or merits of the new information" sometimes be relevant for the purposes of s 473DD(a)? Is IAA "required to take into account or have regard to the matters advanced by the applicant as establishing either" ss 473DD(b)(i) or (ii)?
The questions to the Full Court of the Federal Court were as follows:
Question 1: Section 473DD of the Migration Act 1958 (Cth) provides that the Immigration Assessment Authority (IAA) must not consider new information unless certain pre-conditions are satisfied. But does that provision expressly or impliedly empower the IAA to consider new information?
Question 2: Can it be said that "the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the [IAA] in deciding whether 'exceptional circumstances' exist", pursuant to s 473DD(a)?
Question 3: What factors is the IAA "required to consider in reaching its state of satisfaction or non-satisfaction of the twin requirements of s 473DD"?
Question 4: Can the "matters concerning the substance or merits of the new information" sometimes be relevant for the purposes of s 473DD(a)?
Question 5: Is the IAA "required to take into account or have regard to the matters advanced by the applicant as establishing either" ss 473DD(b)(i) or (ii)?
DERRINGTON AND STEWARD JJ answered those questions as follows: