The Minister’s recycled argument that there is ‘no duty to give reasons’ in respect of s 473DD, and that it is not permissible to infer from what is not referred in reasons that the thing not referred to was not considered, was rejected in AUS17.
Although not subject of express analysis, this can be the only consequence of the reasoning of the plurality.
After confirming that s 473DD(b)(i) and (ii) are mandatory relevant considerations for s 473DD(a), the plurality said at [17]-[18]:
17. The Authority affirmed the decision of the delegate, finding amongst other things that the appellant had fabricated his claim to fear mistreatment at the hands of the EPDP and had embellished his claim to fear mistreatment at the hands of the Sri Lankan Army. The Authority recorded in the statement of reasons for its decision on the review that the letter was "new information" which it had not considered in making its decision on the review. That was for reasons which the Reviewer who constituted the Authority for the purpose of the review explained in the following terms:
"I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information."
18. Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).
In the Minister’s written submissions in AUS17, the recycled argument relating to the absence of a duty to give reasons in respect of a s 473DD decision appears at [46] and [51].
At the hearing, the following exchange also occurred:
EDELMAN J: Do you accept that, conversely, if there were circumstances that were so glaring or important that a failure to mention those circumstances might justify an inference that those circumstances had not been considered?
MR KENNETT: That may occur . …
See also the written reply submissions at [9] which contend that s 473DD findings are always material to the eventual decision and so therefore there is actualy a ‘duty’ to give reasons in respect of s 473DD, and the plurality at [6].