New Information Provided Must Be Considered by Immigration Assessment Authority (IAA)
In FKO17 v Minister for Home Affairs, the Federal Court of Australia allowed an appeal to an applicant on the basis that Immigration Assessment Authority (IAA) has failed to consider new information provided by the appellant and his dependants (wife and children).
The appellant is a citizen of Sri Lanka who travelled to Australia with his wife and four children by boat, and arrived at Christmas Island. The appellant applied for a Safe Haven Enterprise Visa which was refused by a delegate of the Minister and subsequently by Immigration Assessment Authority (IAA) upon review.
The FCCA dismissed the application for judicial review, and the appellant appealed that decision to the Federal Court.
During the review process of the IAA, the IAA sent out a copy of its Practice Direction to the applicant which stated that the appellant can provide submissions and new information. To this, the appellant provided the following new information:
· that he had concealed facts and not given a full account of his involvement with the EPDP (Eelam People’s Democratic Party in Sri Lanka), because it had been involved in atrocities;
· the appellant denied any personal involvement in such atrocities, but stated that he was concerned that he would be seen as a former member of EPDP responsible for such atrocities;
· provided in his statement further information about his membership of and involvement with the EPDP; and
· New statement of his wife including of his two eldest children
The Migration Act imposes restrictions on the capacity of the Authority to consider “new information”.
Section 473DB sets out a primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to the Authority under s 473CB without accepting or requesting new information, and without interviewing the referred applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection. To this rule, there are exceptions…
Section 473DC(3) permits the Authority to get new information by inviting a person to give new information to the Authority. In this case, by its Practice Direction the Authority invited the appellant to give it new information.
However, s 473DD of the Act mandates that the Authority must not consider new information given to the Authority by a referred applicant unless:
473DD Considering new information in exceptional circumstances
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i. was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
ii. is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Grounds of Appeal
1. The FCCA erred in finding that the Authority considered new information in accordance with s 473DC and 473DD of the Act.
2. The FCCA should have found that the Authority overlooked the new information which was critical to claims made by the applicant.
Decision of the Federal Circuit Court
The Court held that material error was found in Authority’s error in stating that the appellant had not provided any further information or evidence. It would have been a different story if the there had been a mere absence of information, but the appellant had simply failed to previously provide further information…
Had the Authority considered that the new information was credible, that may have been relevant to whether it considered that exceptional circumstances existed for the purposes of s 473DD(a).
And had the information been considered, the Authority may have come to a different conclusion in relation to the appellant’s credibility and in relation to his claims in support of his application for a protection visa.
On this ground, there was a constructive failure to exercise jurisdiction of the same order as that identified by White J in BVZ16 v Minister for Immigration and Border Protection.
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 FKO17 v Minister for Home Affairs  FCA 98 (12 February 2019)
 2018] HCA 16; (2018) 353 ALR 600 at .
  FCA 958; (2017) 254 FCR 221 at ,