Tag Archives: new information

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 not ‘new information’ for the purposes of the IAA.

It is notable that 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). 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.

‘Exceptional circumstances’ is not limited to whether the applicant could have provided the information earlier

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].