//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2018] FCAFC 111
respondent. The appeal be dismissed. The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.
A Sri Lankan Tamil man claimed he would be harmed because authorities thought he supported the Tamil Tigers. After a government official refused his visa, he sent the review body a new statement with extra details about hiding his identity from police years earlier. The review body refused to look at the new details, saying nothing about the situation was exceptional enough to allow it, especially since his new story clashed with what he had already told the official when asked directly about the same events. The Federal Circuit Court and then the Full Federal Court agreed there was no legal mistake. The judges said the review body had looked at the right things and it was reasonable to decide the circumstances were not exceptional. The man's appeal was dismissed and he must pay costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,894 words · generated 24/04/2026
1 cited instrument linked from this judgment.
The appellant, a Tamil citizen of Sri Lanka, arrived in Australia in November 2012 as an unauthorised maritime arrival. In February 2017 he applied for a protection visa, claiming a fear of persecution arising from his perceived links to the Liberation Tigers of Tamil Eelam (LTTE). Among other claims he alleged that in August 2011 he had been arrested and tortured by the Criminal Investigation Department (CID) but was released after payment of a bribe, and that in May 2012 he was stopped by CID officers who instructed him to attend their office the next day with more money. The Minister's delegate did not accept that these CID incidents had occurred and refused the visa. As the appellant was a fast track applicant the refusal was referred to the Immigration Assessment Authority (the Authority) under s 473CA of the Migration Act 1958 (Cth).
Before the Authority completed its review the appellant provided a statutory declaration that expanded on the August 2011 events. The new information included the assertion that during the detention the CID had not known his true identity because he had deliberately refused to give it, knowing he was on a watch list as a searched-for LTTE fugitive and that they would kill him if they discovered who he was. The Authority accepted that this was new information not previously before the delegate. It then turned to s 473DD. The Authority noted that at the SHEV interview the delegate had directly challenged the appellant about why the CID had not come looking for him after he failed to report as required on his release. The appellant's response at interview had been that the CID had only his father's address. The Authority considered this response inconsistent with the later claim that the CID had never known his real identity. It also found that the appellant had had a clear opportunity at interview to advance the new claim but had not done so. On that basis the Authority was not satisfied that exceptional circumstances existed to justify considering the new information. The Authority therefore did not take the statutory declaration into account and affirmed the delegate's decision to refuse the visa.
The appellant sought judicial review in the Federal Circuit Court. He argued that the Authority had adopted an unduly narrow view of "exceptional circumstances" by focusing only on the opportunity to provide the information earlier and the inconsistency in his accounts, thereby failing to consider all matters capable of bearing on whether the circumstances were exceptional. The primary judge rejected that contention, holding that the Authority had in substance addressed the matters in s 473DD(b)(ii) even though it had not referred to that paragraph expressly, and that it had therefore properly considered the s 473DD(a) requirement. The Federal Circuit Court dismissed the application.
The appellant appealed to the Full Federal Court. The two grounds of appeal challenged the primary judge's conclusions that the Authority had considered the s 473DD(b)(ii) matters and had properly applied s 473DD(a). The Full Court (McKerracher, Murphy and Davies JJ) dismissed the appeal, holding that it had been open to the Authority to decide that exceptional circumstances were not made out. The Court emphasised that nothing in the material before the Authority pointed to any feature of the appellant's personal circumstances or the significance of the new information that could render the situation out of the ordinary. The appeal was dismissed with costs.
The Full Court began its analysis by confirming the statutory architecture. Part 7AA requires the Authority to review fast track decisions by reference to the review material without accepting or requesting new information or interviewing the applicant (s 473DB), subject to the exception in s 473DD. That exception is cast in mandatory language: the Authority must not consider new information unless both (a) it is satisfied there are exceptional circumstances to justify considering it and (b) the applicant satisfies the Authority of one of the two limbs in (b)(i) or (b)(ii).
Drawing directly on the High Court's recent decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, the Court reiterated that "exceptional circumstances" is not a term of art but an ordinary English adjective. At [13] the Court quoted the plurality in Plaintiff M174 that what will amount to exceptional circumstances "is inherently incapable of exhaustive statement" and that to be exceptional a circumstance "need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered". The Court added that there may be a combination of factors which together are exceptional, or a single factor that of itself suffices, but in every case the assessment depends on the particular circumstances of the visa applicant's case.
The Court then turned to the relationship between s 473DD(a) and (b). It accepted that the two paragraphs impose cumulative requirements. However, it rejected the appellant's contention that the Authority had confined itself to an evaluation of whether the information could have been given earlier (a s 473DD(b)(i) consideration) and had ignored credibility and potential effect on the claims (s 473DD(b)(ii)). The Court held that, although the Authority had not used the language of s 473DD(b)(ii), its reasons had in substance addressed credibility: it had expressly relied on the contradiction between the new information and the account given at interview. That contradiction was treated as bearing on both the credibility of the new material and the existence of exceptional circumstances.
Crucially, the Court found that the appellant had not identified any additional fact or matter that the Authority had overlooked which, had it been taken into account, could have materially affected the exceptional circumstances assessment. The new information was not, of itself, exceptional merely because it was different from what had been said before. The Authority was not obliged to undertake a full credibility assessment of the new information or to evaluate its significance to the claims beyond what was necessary to decide whether anything took the case out of the ordinary. Because the new information directly contradicted evidence given in response to targeted questioning and no explanation for the change had been advanced, it was open to the Authority to conclude that the circumstances were not exceptional. The primary judge had therefore been correct to dismiss the judicial review application.
The Full Court was careful to distinguish the earlier Full Court authorities. In BVZ16, BBS16 and CHF16 the Authority had confined its reasons to the absence of any explanation for late disclosure and had ignored other potentially relevant matters. In the present case the Authority had gone further: it had identified an affirmative reason (inconsistency with a prior directly elicited account) that told against both credibility and exceptionality. That reasoning process did not disclose the same legal error.
Prior to this decision the law on s 473DD was still developing. In BVZ16 White J had emphasised that "exceptional circumstances" requires consideration of all relevant circumstances because even if no single factor is exceptional their combination may be. The Full Court in BBS16 and CHF16 had endorsed that broad approach and held that the Authority's failure to consider matters capable of bearing on exceptionality, including the potential significance of the new information and why it had not been advanced earlier, amounted to jurisdictional error. Those cases left open whether it was possible in substance to consider exceptional circumstances without addressing each of the s 473DD(b) matters.
The High Court in Plaintiff M174 supplied authoritative guidance. The plurality made clear that exceptional circumstances cannot be exhaustively defined and that the s 473DD(b) criteria are additional cumulative preconditions rather than a codification of what is exceptional. The present Full Court decision is the first appellate decision to apply Plaintiff M174 directly to a factual scenario in which the Authority had referred to inconsistency and opportunity to provide information. It therefore represents a refinement: while the assessment must be alive to anything that might render the situation out of the ordinary, the Authority is not required to tick every doctrinal box in s 473DD(b) in every case. After this judgment the law is clearer that the ultimate question is whether, on the particular facts, anything takes the case out of the usual or ordinary course. Mere provision of a different account, even one that might be important, will not without more constitute exceptional circumstances.
At [13] the Court states: "As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements... 'Exceptional circumstances' is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are 'exceptional' if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."
Plain-English translation: The two parts of the test must both be satisfied. "Exceptional" just means out of the ordinary. The Authority has to look at the real facts of the individual's situation rather than applying a rigid checklist.
At [14]: "It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether 'exceptional circumstances' exist as s 473DD(b) does not codify what constitutes 'exceptional circumstances'."
Plain-English translation: The matters in paragraph (b) are extra hurdles the applicant must clear, but they do not define what "exceptional" means. The Authority does not have to write a separate paragraph on each of them every single time.
At [16]: "Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant's claims."
Plain-English translation: The Authority did not have to say the magic words of s 473DD(b)(ii). It was enough that its reasons showed it thought the new story was not believable because it contradicted what the man had already said when asked the same questions.
At [17]: "The fact that a different account was put to the Authority would not, of itself, constitute 'exceptional circumstances' to justify consideration of the new information. Nor... was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant's case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant's case which made it unusual or out of the ordinary."
Plain-English translation: Just because someone changes their story does not automatically make the new version "exceptional". The review body does not have to write a mini-judgment on how important or believable the new story is unless there is something else about the case that screams "this is out of the ordinary".
This decision will be engaged whenever an Authority is asked to consider new information from a fast track applicant and must decide whether s 473DD is satisfied. It is particularly relevant where the new information varies from, or contradicts, evidence the applicant gave at interview in response to direct questioning on the same subject matter. In such cases the Authority may lawfully treat the inconsistency and the missed opportunity as telling against both credibility under s 473DD(b)(ii) and the existence of exceptional circumstances under s 473DD(a).
The precedent is also triggered when an applicant argues on judicial review that the Authority took too narrow a view of "exceptional circumstances". The judgment confirms that a reviewing court will not find error merely because the Authority did not expressly mention s 473DD(b)(ii) or did not undertake a detailed credibility or significance analysis, provided the reasons show the Authority asked itself whether anything in the applicant's circumstances took the matter out of the ordinary course. Conversely, the decision warns that if an applicant puts material before the Authority explaining why the new information could not have been given earlier, or why it is of particular significance, or why the inconsistency is explicable, the Authority must grapple with that material; failure to do so may engage the errors identified in BVZ16, BBS16 and CHF16.
Although the judgment itself post-dates Plaintiff M174 by only months, it has been treated in subsequent authorities as an orthodox application of the High Court's guidance. The Court's insistence that the assessment is fact-specific and that s 473DD(b) does not codify exceptional circumstances has been cited as confirming that the Authority enjoys a broad evaluative judgment. Later decisions have cited the present reasoning for the proposition that an Authority does not fall into error by relying on inconsistency between new information and earlier evidence given under questioning as a sufficient basis for finding no exceptional circumstances. The distinction drawn between this case and the earlier trilogy (BVZ16, BBS16, CHF16) has been accepted as illustrating the limits of those authorities: they apply where the Authority focuses solely on the absence of an explanation for late disclosure and ignores other potentially relevant matters, but they do not compel the Authority to address every conceivable factor in every case.
The emphasis at [15]–[17] that the appellant could point to no additional matter that the Authority had overlooked has been relied upon in later cases to uphold Authority decisions where the only new material consists of a changed or expanded account without any accompanying explanation of why it could not have been given earlier. The judgment has therefore narrowed the scope for successful judicial review arguments that rest on an asserted failure to consider the "significance" of new information or to make express s 473DD(b)(ii) findings.
The judgment leaves open whether there could be a case in which the new information is so obviously significant and credible that the Authority is required to treat that significance as itself constituting exceptional circumstances, even in the face of inconsistency. The Court notes at [14] that "in many cases" the (b) factors may assist but "whether those factors will have bearing upon that decision will depend on the particular case". That qualification suggests that in an extreme case the importance of the new information might, without more, render the circumstances exceptional, but the present facts did not require the Court to decide the point.
A further open question is the precise content of the obligation to consider "all the matters capable of constituting the circumstances of the appellant's case as 'exceptional'". The Court holds that the Authority is not obliged to evaluate credibility or significance "beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant's case which made it unusual". The boundary between "consideration given" and "feature or matter that should have caused further consideration" remains fact-sensitive and is likely to generate further litigation.
Finally, the Court did not need to address the Minister's notice of contention. That leaves unresolved whether, even if the Authority had fallen into the error alleged, relief would have been refused on discretionary grounds or for lack of practical injustice. These questions await future cases in which the factual matrix more clearly engages them.
Most practitioners assume that once new information satisfies s 473DD(b)(ii) (credible personal information not previously known that may have affected the claims) the Authority must treat that as automatically satisfying the exceptional circumstances test. This judgment demonstrates the opposite: the (b)(ii) matters can be considered but are not decisive. The Authority here essentially decided the new information was not credible because it contradicted a prior account; that finding fed directly into the s 473DD(a) assessment. Lawyers who treat the two limbs as operating in separate silos risk misadvising clients that a strong (b)(ii) case guarantees consideration of the material.
Another trap is assuming the Authority must write a miniature IRAC analysis addressing every possible factor that might be "out of the ordinary". The Court makes clear that the obligation is contextual. If nothing is drawn to the Authority's attention that could make the circumstances exceptional, a short statement that the applicant had opportunity to give the information earlier and that it is inconsistent with what was previously said is legally sufficient. This is often overlooked in judicial review applications that simply list every conceivable surrounding circumstance and assert the Authority "failed to consider" it.
Finally, the decision illustrates the forensic importance of what is actually put to the Authority. The appellant could not point to any explanation for the changed account or any personal circumstance that made late disclosure understandable. Had such material been included in the statutory declaration the outcome might have been different. The lesson is that the content of the "new information" submission itself can be decisive in determining whether the Authority is put on inquiry as to exceptional circumstances. Many representatives still treat the statutory declaration as a mere vehicle for extra facts rather than as the critical document that must anticipate and address the s 473DD hurdles.
THE COURT: 1 This appeal concerns s 437DD of the Migration Act 1958 (Cth) ("the Act"). The section is contained in Part 7AA of the Act, which governs the review process for a decision made by the first respondent ("the Minister") not to grant a protection visa to a "fast track applicant". For present purposes it is sufficient to note the following salient features of the review process: (a) s 473CA imposes a duty on the Minister to refer a fast track reviewable decision to the Immigration Assessment Authority ("the Authority") as soon as reasonably practicable after the decision is made; (b) s 473CB imposes a duty on the Secretary to the Department of Immigration and Border Protection ("the Secretary") to give the Authority the "review material" in respect of each fast track reviewable decision that is referred by the Minister. The "review material" includes a statement that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision. The "review material" also includes "material provided by the referred applicant to the person making the decision before the decision was made" and "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review"; (c) s 473CC(1) provides that the Authority "must review a fast track reviewable decision referred to the Authority under section 473CA". In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 ("Plaintiff M174"), the High Court held that the task of the Authority under s 473CC is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa had been met; (d) s 473DB sets out the 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; and (e) s 473DD is an exception to the prohibition under s 473DB on the Authority considering new information. 2 Section 473DD provides as follows: Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (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. 3 The issue in the present case concerns the restriction in s 473DD(a), namely the Authority must not consider new information unless it is satisfied that there are "exceptional circumstances" to justify considering the new information. 4 The appellant is a Tamil citizen of Sri Lanka. He arrived in Australia in November 2012 as an unauthorised maritime arrival and made an application for a protection visa in February 2017, claiming to fear persecution for reasons that included his perceived links to the Liberation Tigers of Tamil Eelam ("LTTE"). One of his claims was that he was arrested and tortured by the Criminal Investigation Department ("CID") in August 2011, but was released after paying a bribe. He also claimed that in May 2012 he was stopped by CID officers who told him to attend their office the next day with more money. The Minister's delegate, who reviewed his visa application, did not accept that the incidents with the CID occurred. His visa application was refused and the refusal was referred to the Authority for review as required by s 473CB. Before the Authority concluded its review, the appellant provided the Authority with a statutory declaration which included details of the appellant's arrest and detention by the CID in August 2011. The appellant's account in his statutory declaration included the "new information" that the appellant had refused to give the CID his true identity and details as he knew that he was on the watch list as a searched for LTTE fugitive and that they would kill him if they knew who he was. 5 The Authority was not satisfied that there were exceptional circumstances to consider this new information and did not take it into account in its review. The Authority gave the following explanation: In his declaration the [appellant] stated that when he was detained by the Criminal Investigation Department (CID) in August 2011 the CID did not know who he was and he "refused to give them my true identity and details as I knew I was on the watch list as searched for LTTE fugitive". The [appellant] did not advance this claim at the SHEV interview when asked about his 2011 detention and I find that this is new information. I have had regard to the [appellant's] response to questions put to him at the interview about this matter. The delegate advised the [appellant] that she could not understand why the CID did not come looking for him when he did not report back to them as this was one of the conditions of his release. The [appellant's] response to this question was that "the address they had was my father's one so they went looking for me there". The [appellant] did not advance that he "refused to give them my true identity" and that they did not know his real name. I consider that the [appellant] had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. Furthermore, the response the [appellant] gave at the interview (that they had his father's address) contradicts his claim that the CID did not identify him during the period he was detained. I am not satisfied that there are exceptional circumstances to consider this new information. 6 The appellant argued that in focusing only on the appellant's failure to take the opportunity to provide the information at the interview, in which the appellant gave a response that was inconsistent with the information with another response in that interview, the Authority limited itself to an unduly narrow interpretation of "exceptional circumstances". It was submitted that there was no consideration evident in the decision record of any matter beyond the failure of the appellant to provide the information at the interview and the Authority thereby failed to consider all the matters capable of constituting the circumstances of the appellant's case as "exceptional". It was submitted that this was an error of the same character as the error identified in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 ("BVZ16"), Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 ("BBS16"), and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 ("CHF16"). In each of those cases it was held that the Authority failed to address all the matters bearing upon whether it should have been satisfied that there were "exceptional circumstances". 7 In BVZ16, White J, after reference to R v Kelly [2000] QB 198 at [51] and other authorities, held that "exceptional circumstances" will be those that are out of the ordinary course and which justify the new information being considered even though the information was not provided to the Minister at the time of the s 65 decision. White J stated that, generally, consideration of whether "exceptional circumstances" exist will require consideration of all relevant circumstances because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. White J found that the Authority, in that case, had adopted an inappropriately narrow understanding of the scope of the term "exceptional circumstances" in applying s 473DD because the Authority had confined its consideration as to whether there were exceptional circumstances to the evaluation of the appellant's explanation for not having disclosed the information earlier. His Honour reasoned that whilst the requirements in s 473DD(a) and s 473DD(b) are cumulative, they may nevertheless overlap and because ss 473DD(b)(i) and 473DD(b)(ii) involve different considerations, both considerations are potentially relevant in considering whether the circumstances are "exceptional" and meet the requirements of s 473DD(a). 8 In BBS16 the Full Court agreed with White J that the phrase "exceptional circumstances" is to be given a broad meaning along the lines of circumstances that are unusual or out of the ordinary and, the Court stated, this "necessarily requires that consideration be given to all the relevant circumstances in determining whether there are 'exceptional circumstances'". The Full Court rejected the Minister's contention that White J had misconstrued or misapplied the term "exceptional circumstances" in s 473DD(a), holding that the Authority's consideration of either or both of the limbs in sub-para (b) may inform the Authority's satisfaction under sub-para (a) as to whether there are exceptional circumstances to justify considering the new information. The Full Court held that the Authority, in that case, had made a similar error to that which was identified in BVZ16 because the Authority's lack of satisfaction that there were exceptional circumstances to justify considering the new information was based only on the Authority's finding that the visa applicant had not provided any explanation as to why the new information could not have been provided earlier. The Authority did not address other matters potentially relevant to whether the issue of "exceptional circumstances", which included material which explained why the visa applicant had not previously disclosed the new information. 9 In CHF16, the Full Court likewise held that the Authority erred in determining that it was not satisfied that there were exceptional circumstances to justify considering the new information. The Full Court reasoned that the Authority considered only the fact that the new information, which related to events prior to the primary decision being made, was not brought forward by the appellant and did not take into account why the new information was not brought forward earlier "or any other circumstances", stating that the Authority "did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants' claims". The Full Court posited, but left open, the question whether it is possible, as a matter of substance in a given case, to consider "exceptional circumstances" without considering each of the s 473DD(b) matters. 10 In the Court below, the primary judge rejected the appellant's contention that the Authority had committed the same legal error by confining its consideration of the s 473DD(a) requirement "exclusively" to an evaluation of the matters under s 473DD(b)(i). The primary judge held that the Authority had "dealt with the substance" of the matters mentioned in s 473DD(b)(ii), although it did not specifically refer to that subsection. At [37], the primary judge noted that the appellant's "only issue" with the Authority's finding that it was not satisfied that there were exceptional circumstances justifying the consideration of the new information "was based on the [appellant's] perception that the Authority had not considered the matters required by s 473DD(b)(ii) of the Act, so as to properly inform itself about whether there were exceptional circumstances". The primary judge concluded that as the Authority did consider the matters required by s 473DD(b)(ii) of the Act, "the Authority properly considered the matters required to be considered under s 473DD(a) of the Act".
Grounds of Appeal 11 There are two grounds of appeal. Ground 1 challenges the correctness of the primary judge's finding that the Authority had considered the s 473DD(b)(ii) requirement. Ground 2 challenges the correctness of the primary judge's finding that the Authority "properly considered the matters required to be considered under s 473DD(a) of the Act".
Consideration 12 In support of the appeal grounds, counsel for the appellant submitted that it was "essential … at a minimum" for the Authority to evaluate the credibility of the new information and the significance of the new information to the appellant's claims. It was submitted that there was not only no actual finding on the s 473DD(b)(ii) matters, but also that merely noting an inconsistency in the accounts did not constitute proper consideration as to whether the new information was credible personal information that may have affected the consideration of the appellant's claims. It was also submitted that the primary judge misunderstood the appellant's argument below. It was submitted that s 473DD(a) and s 473DD(b) are cumulative, not co-extensive, requirements so that the question of whether "exceptional circumstances" exist cannot be answered just by looking at the s 473DD(b) matters, but also requires consideration of whether there is anything out of the ordinary that justifies consideration of the new information. It was submitted that the Authority's reasons did not reveal any consideration beyond the fact of the inconsistent accounts, which was an inadequate basis upon which to decide that "exceptional circumstances" did not exist to justify consideration of the new information. It was put that there was no consideration of the importance of the new information to the appellant's claims, or of the appellant's personal circumstances, or of the credibility of the new information, or of the reason for the later inconsistent account. 13 As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). "Exceptional circumstances" is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are "exceptional" if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a): Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered". The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning "exceptional circumstances" in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute "exceptional circumstances", or one factor of its own which may be sufficient for "exceptional circumstances" to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant's case. 14 As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist as s 473DD(b) does not codify what constitutes "exceptional circumstances". Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case. 15 In the present case, the question for the Authority was what, if anything, took the circumstances of the appellant's case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the appellant's circumstances which meant that there were exceptional circumstances justifying consideration of the new information. The Authority referred to the fact that at the time of the interview it was expressly put by the delegate to the appellant that she could not understand why the CID did not come looking for him when he did not report back to them, as this was one of the conditions of his release and the Authority considered that the appellant had the opportunity at the interview to advise the delegate of the claim that he did not give the CID his real name. The Authority also referred to the fact that the new information was a contradictory account of what the appellant said had happened when he was detained by the CID in August 2011. 16 Contrary to the appellant's submission, the Authority did not conclude that the s 473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister's delegate. Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant's claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible. 17 Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority's consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute "exceptional circumstances" to justify consideration of the new information. Nor, contrary to the appellant's submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant's case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant's case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant's personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of "exceptional circumstances". In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed. 18 Accordingly, we are of the view that the appeal must be dismissed. In view of our conclusion, we have not addressed the Minister's notice of contention. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices McKerracher, Murphy and Davies.
AQU17
Minister for Immigration and Border Protection
The appeal be dismissed. The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.