Tag Archives: IAA

Whether a document can be ‘constructively’ before a delegate such that it is not ‘new information’

In DTK17 v Minister for Immigration and Border Protection [2018] 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: [38]).

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.

Failure of Secretary to provide to IAA relevant documents

In AKK17 v Minister for Immigration (2017) 327 FLR 343 at [59]-[60] 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).