BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 concerned the IAA’s exclusion of information on the sole basis that the applicant could have but did not provide it to the delegate. White J said at [46]-[47] this was an unduly narrow interpretation of ‘exceptional circumstances’.
His Honour stated:
[41] Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional…
…
[43] … exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances. (emphasis added)
His Honour also observed at [34]-[35] that the requirements in s 473DD(a) and (b) overlap, so that even though they are cumulative, the fact that information could have been provided to the delegate earlier but was not cannot be decisive. Thus, information that could have been provided earlier but was not (s 473DD(b)(i)) might nonetheless be personal information that had it been known, would have affected the decision (s 473DD(b)(ii)), and in light of that significance (or otherwise), there was an ‘exceptional’ circumstance (s 473DD(a)).
His Honour’s reasoning was endorsed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[112].
The Full Court left open the possibility that the IAA failing to consider a particular piece of information in deciding whether there were ‘exceptional circumstances’ may constitute jurisdictional error: [114].