If there was ever a need for authority for the proposition that what an applicant says or writes is still ‘evidence’, and that there is no legal requirement for evidence to be corroborated before it can be accepted (and the increasing trend in Tribunal and IAA decisions suggests there is such a need), see NAKD v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 321 per Hill J at .
In DTK17 v Minister for Immigration and Border Protection  FCAFC 170 there was discussion of whether a particular document was constructively before the delegate so as to render it not ‘new information’ for the purposes of the IAA. The impugned document was an ‘issues paper’ concerning Hazaras in Afghanistan. The Full Court held that such a document was not ‘before the Minister’ (or a s 65 delegate) such that it was ‘new information’ for the purposes of the IAA.
There appears not to have been any argument about the significance of s 499 (if the document was such a document which a s 499 direction required the delegate to consider). If the document was required to be considered pursuant to a direction made under s 499, the answer as to whether the document was ‘new information’ may be different (unless the test is confined to a document which is literally before the person, which appears to be what the Full Court intimated: ).
The Full Court’s rejection of the argument also does not answer the question of whether a document incorporated by reference in another document that was actually before the delegate, is itself constructively ‘before the Minister’ for the purposes of s 473DC.
The two limbs of s 473DD(b) are expressed as alternatives: CSR16 v Minister  FCA 474 at . Justice Bromberg there went on to conclude that “all that the ‘credible’ element of s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”:  FCA 474 at . “It is only at the deliberative stage of its review”, said his Honour, “that the Authority will be required to determine whether or not the ‘new information’ is true”.
A particularly egregious example of unreasonableness is Abboud v Minister  FCA 185 in which the Tribunal made arbitrary assumptions as to how a gay person ought to behave. The Tribunal has now on several occasions rejected persecution claims on the basis of sexuality through means of suggesting the applicant is involved in a gay ‘conspiracy theory’. Patently, such approach is unreasonable, irrational or demonstrative of failing to engage with the material before it. The entire Abboud decision is worth reading in order to expose the audacity of the Tribunal’s reasoning, but see especially -.
Frequently a decision-maker will leap to a conclusion that an applicant has been ‘inconsistent’ in his or her account. Frequently also, a decision-maker will bandy this label of ‘inconsistency’ incorrectly.
Often, in truth something may not be ‘inconsistent’. For example, the omission of making a particular claim at interview 1 does not mean it is an ‘inconsistency’ if raised in interview 2: see AVQ15 v Minister  FCAFC 133 at .
Also, just because there is an ‘inconsistency’ (assuming that word is used correctly), it does not follow that a credibility issue emerges. For example, a minor inconsistency cannot be transformed into a reason to disregard the whole of an applicant’s claims: see AVQ15 v Minister  FCAFC 133 at ; Minister for Immigration and Citizenship v SZRKT  FCA 317; 212 FCR 99 at .
Further, special attention needs to be given to the circumstances in which an applicant is giving evidence, before leaping to a conclusion of ‘inconsistency’ (or for that matter, adverse credit). Thus, if an applicant warns that he or she is only giving a ‘summary’ which is ‘not an exhaustive statement’ and will be giving more detail at a later stage, a failure to appreciate that qualification may create a jurisdictional error: see AVQ15 v Minister  FCAFC 133 at , , , .
The proposition that representations in relation to a s 501 cancellation attempt are not ‘mandatory relevant considerations’ is highly doubtful if not at least reductionist. See the discussion in Viane v Minister  FCAFC 116 per Rangiah J - and Colvin J at -. What matters is (or perhaps a better characterisation than ‘mandatory relevant consideration’ is) whether the relevant aspect which was not considered could amount to a ‘representation’, in which case it must be considered.
See also Hay v Minister  FCAFC 149 per Colvin J.
As to what is required to show that there has been a consideration, see Minister for Immigration and Border Protection v Maioha  FCAFC 216 at :
What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection  FCA 1333 at  per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being “apt to encourage a slide into impermissible merit review”: Minister for Immigration and Citizenship v SZJSS  HCA 48; 243 CLR 164 at  citing Swift v SAS Trustee Corporation  NSWCA 182; 6 ASTLR 339 at . Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.
In AKK17 v Minister for Immigration (2017) 327 FLR 343 at - it was suggested that this might be an error depending on the nature of the document which the Secretary does not provide, notwithstanding the Secretary’s obligation under s 473CB(1)(b) to do so in respect of all documents before the delegate which were provided by the applicant.
Although inconsistent with the imperative language in s 473CB(1), it would appear that this decision is consistent with the requirement that an error have done kind of materiality in order for it to be a jurisdictional error (see eg Hossain v Minister for Immigration (2018) 92 ALJR 780).
In Carrascalao v Minister  FCAFC 107 the Court inferred that the Minister did not actually consider the material he was obliged to, before making his formulaic decision. The judgment discusses two cases in which the evidence showed that the Minister had at most about half an hour to consider hundreds of pages of material, which of course, he would not have done in that time.
The error was failing to give proper, genuine and realistic consideration to the merits of the cases. The Full Court explained:
129. … 43 minutes represents an insufficient time for the Minister to have engaged in the active intellectual process which the law required of him in respect of both the cases which were before him.
The Minister was also the subject of a Jones v Dunkel inference arising from the failure of one of the central characters, his Chief of Staff, to give any evidence:
130. Seventhly, the inferences which we have drawn from the material above in concluding that the Minister did not engage in the requisite active intellectual process, is reinforced by the fact that neither he nor his Chief of Staff gave evidence. Accordingly, we would apply the principle in Jones v Dunkel  HCA 8; 101 CLR 298 which, we note, was also applied in the particular circumstances in the Douglas case at 61-62 and in other judicial review cases referred to therein. As the Full Court observed in the Douglas case at 62:
The application of the rule requires… that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel at 308. The question then is what inferences were open on the evidence.
131. In considering whether the rule of evidence in Jones v Dunkel applies here, we have taken into account the multiple statements made by the Minister in his statement of reasons to the effect that he had considered, noted, accepted, recognised or had regard to various matters, as well as the concluding statement which appears in both statements of reasons that the Minister had “given full consideration to all of the information before me in this case” (emphasis added). The Minister may subjectively have believed these matters, including his claim to have given full consideration to all the information before him in both cases but, for the reasons set out above, we do not consider that his subjective belief is determinative when, for the reasons given above, the Minister did not have sufficient time to engage in the active intellectual process required by law before deciding to cancel the two visas.
MZAFZ is not dead yet. In Minister for Immigration and Border Protection v CQZ15  FCAFC 194 at  the Full Court confirmed the possibility that an applicant might want to (and be entitled to) demand production of documents covered by an invalid s 438 certificate, because those documents might show denial of procedural fairness or apprehended bias.
BVZ16 v Minister for Immigration and Border Protection  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 - this was an unduly narrow interpretation of ‘exceptional circumstances’.
His Honour stated:
 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…
 … 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 - 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  FCAFC 176 at -.
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: .