EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (27 September 2018)

The Immigration Assessment Authority (IAA) is not required to accept or request new information, or to conduct an interview with the referred applicant; s 473DB of the Migration Act. This means that the review conducted by the IAA would be restricted to whatever material was provided to the Department previously, and you cannot freely provide further supporting evidence.

When can you provide more information to IAA?

·       Upon request from the Authority – but there is no duty that they request or accept new information

·       If the IAA finds out any new information that may form part of the reason to affirm the decision, then they must explain this to you and invite you to comment on this new information

Will the IAA consider all new information provided to them upon request?

No, the IAA cannot consider any new information unless they are satisfied that:

1.     There are exceptional circumstances to justify considering the new information; and

2.     This new information was not available to be provided before the Department made their decision and is credible personal information not previously known.

This creates a strange situation where the IAA may request new information from you and you are able to provide this new information. But following this request, they may not be able to take it into consideration unless exceptional circumstances.

This occurred in a recent case of EMJ17[1] and the effect of the laws were confirmed.

In EMJ17,[2] it was held that the discretion of the IAA to get new information from the review applicant does not turn upon whether there are ‘exceptional circumstance’. The consideration of exceptional circumstance only arises when they have received new information and they need to address whether they are prevented from considering the new information received.

So what does this mean?

There are only limited circumstances where it would be appropriate for the IAA to request for more new information and even when they have requested for more information, this does not mean they must consider it.

The process of a fast track reviewable decision at the IAA is very different to a standard AAT case. It is best practice to submit everything in full whilst the application is still at the Department.

 

At Agape Immigration, our lawyers are well trained to handle highly complex matters so book one of our lawyers to seek professional advice now by calling 02-27007200 or email us to book in a time at info@ahclawyers.com


[1] [2018] FCA 1462.

[2] Ibid at 60.