What happened
The appellant, a Sri Lankan citizen of Tamil ethnicity from the Jaffna District, lodged an application for a protection visa. His claims centred on a fear of serious harm from the Eelam People's Democratic Party (EPDP) and from elements within the Sri Lankan Army. A delegate of the Minister for Immigration and Border Protection refused the application under s 65 of the Migration Act 1958 (Cth). While the delegate accepted the appellant's evidence as generally credible, the delegate was not satisfied that the appellant faced a real risk of the mistreatment he feared. The delegate considered that the appellant was no longer of interest to the EPDP and that any risk from the Army was limited to particular soldiers at one camp rather than the army establishment as a whole.
The refusal decision was a fast track reviewable decision and was referred to the Immigration Assessment Authority (the Authority) under s 473CC. In the course of the review the appellant's migration agent provided the Authority with several pieces of material that had not been before the delegate. One document was a letter from Mr Appathuray Vinayagamoorthy, a lawyer and former member of the Sri Lankan Parliament for the Jaffna District. The letter post-dated the delegate's decision. It confirmed that the appellant and his family were known to Mr Vinayagamoorthy, recounted historical events said to corroborate the appellant's claims, and stated that "even still the EPDP and the Army visit his house to make inquiries about his whereabouts".
The Authority determined that the letter constituted "new information" within the meaning explained in earlier authorities. It accepted that the letter could not have been provided to the delegate because it was written after the delegate's decision. However, the Authority considered that the appellant could have obtained a letter outlining the same information earlier and provided it to the Minister. On that basis the Authority found that the letter did not satisfy s 473DD(b)(i). It then concluded that no exceptional circumstances existed under s 473DD(a) that would justify considering the new information. The Authority did not expressly assess the letter against the criterion in s 473DD(b)(ii). Having excluded the letter, the Authority went on to affirm the delegate's decision. It found that the appellant had fabricated his fear of the EPDP and had embellished his fear of harm from the Army.
The appellant sought judicial review in the Federal Circuit Court. Judge Driver held that the Authority had failed to perform the procedural duty imposed by s 473DD because it had not assessed the letter against s 473DD(b)(ii) and had not taken the outcome of any such assessment into account when applying s 473DD(a). His Honour characterised the error as the failure to take account of a mandatory relevant consideration and issued constitutional writs. The Minister appealed to the Federal Court. Logan J, exercising the appellate jurisdiction alone, took the view that the Authority was not obliged to have regard to s 473DD(b)(ii) when assessing exceptional circumstances under s 473DD(a). His Honour also considered that the Authority's finding under s 473DD(b)(i) provided a sufficient basis for its conclusion on exceptional circumstances. The Minister's appeal was allowed.
The High Court granted special leave and heard the appeal on 4 September 2020. By orders made on 14 October 2020 the Court allowed the appeal, set aside the Federal Court's orders, and restored the orders made by the Federal Circuit Court. The joint reasons of Kiefel CJ, Gageler, Keane and Gordon JJ (with whom Edelman J agreed as to the orders and the prudence of the approach, but with a qualification on the question of legal compulsion) form the principal judgment.
Why the court decided this way
The Court began by situating s 473DD within the statutory scheme of Pt 7AA. Section 473DB requires the Authority to review the referred decision by considering the review material provided by the Secretary "without accepting or requesting new information" except to the extent permitted by ss 473DC and 473DD. "New information" is information that was not before the Minister when the s 65 decision was made and which the Authority considers might be relevant to the review. The Authority "gets" new information when it physically receives it and "considers" it when it takes it into account in reaching its decision.
Section 473DD is expressed as a prohibition: the Authority must not consider new information unless two cumulative conditions are met. First, under s 473DD(a), the Authority must be satisfied that there are exceptional circumstances justifying consideration of the new information. Second, where the new information is given or proposed to be given by the referred applicant, at least one of the criteria in s 473DD(b) must also be satisfied. The joint reasons emphasise that, although cast as a prohibition, s 473DD necessarily empowers the Authority to consider new information when the criteria are met. For that binary operation to be workable, the Authority is under a duty to assess any new information it has obtained against the statutory criteria.
The criteria vary according to the provenance of the information. All new information must meet the exceptional circumstances test in s 473DD(a). New information from the referred applicant must additionally meet either s 473DD(b)(i) (information that was not and could not have been provided before the s 65 decision) or s 473DD(b)(ii) (credible personal information not previously known which, had it been known, may have affected consideration of the claims). The Court noted that s 473DD(b)(ii) was inserted during the parliamentary process precisely to expand the circumstances in which new information from an applicant could be considered, thereby creating a very limited second opportunity to provide evidence that might otherwise have been expected under s 5AAA.
Crucially, the joint reasons hold that s 473DD would be "at war with itself" if the Authority could ignore the circumstance that new information satisfies either or both limbs of s 473DD(b) when assessing exceptional circumstances under s 473DD(a). Logic and policy therefore require the Authority to assess the information first against both s 473DD(b)(i) and s 473DD(b)(ii). If neither limb is satisfied, further assessment under s 473DD(a) is redundant because the Authority is prohibited from considering the information. If either or both limbs are satisfied, that outcome is a mandatory relevant consideration that must be factored into the exceptional circumstances assessment and which will heighten the prospect of that criterion being met.
In the present case the Authority expressly found that the letter could not have been provided before the delegate's decision but then concluded that the appellant could have obtained a letter outlining the same information earlier. It therefore found s 473DD(b)(i) was not satisfied. It proceeded directly to s 473DD(a) and found no exceptional circumstances. There was nothing to suggest the letter was incapable of satisfying s 473DD(b)(ii), yet the Authority did not assess that criterion and did not bring any such assessment to bear on the exceptional circumstances question. That was a failure to perform the procedural duty imposed by s 473DD. The error was material, a point not challenged in the High Court. Logan J had therefore erred in two respects: first, in holding that there was no obligation to consider s 473DD(b)(ii); and second, in holding that a finding under s 473DD(b)(i) alone could support the s 473DD(a) conclusion.
Edelman J agreed with the orders and accepted that the approach described by the joint reasons is both efficient and prudent. His Honour observed that considering s 473DD(b) first reduces duplication and ensures material circumstances are not overlooked. However, he considered that the statute does not strictly demand that sequence in every case; an alternative approach of considering s 473DD(a) first would also be open as a matter of law, particularly where the new information is not supplied by the referred applicant. Nevertheless, in the present matter both criteria in s 473DD(b) should have been considered as part of the exceptional circumstances assessment. The failure to do so was fatal.
Before and after state of the law
Prior to the enactment of Pt 7AA, the Migration Review Tribunal and Refugee Review Tribunal operated under Pt 5 and Pt 7 respectively. Those parts contained more generous provisions for the receipt of new information, subject to procedural fairness obligations and the constraints in ss 359A and 424A. The fast-track regime in Pt 7AA was introduced to streamline review of certain protection visa decisions, reflecting a legislative policy that applicants should generally put their full case forward at the primary stage (see s 5AAA). Section 473DB therefore starts from the position that the Authority will conduct its review on the papers without new information. Sections 473DC and 473DD create a narrow exception.
Before AUS17 the Federal Court had, in numerous decisions, recognised that the Authority must assess new information against the s 473DD(b) criteria and take the outcome into account in the s 473DD(a) assessment. The joint reasons expressly endorse that body of authority. The pre-AUS17 understanding, however, had not always been applied with precision at first instance, as the divergent reasoning of Logan J demonstrated. Some decisions had treated the criteria as discrete and had permitted the Authority to leap to an exceptional circumstances conclusion without addressing s 473DD(b)(ii) where s 473DD(b)(i) had not been satisfied.
After AUS17 the law is clarified. When the Authority receives new information from a referred applicant it must, as a mandatory step, evaluate that information against both limbs of s 473DD(b). The outcome of that evaluation is not merely a preliminary filter; it is a mandatory relevant consideration in the subsequent evaluative task under s 473DD(a). A failure to undertake the s 473DD(b)(ii) assessment in an appropriate case will ordinarily constitute jurisdictional error, at least where the information is capable of meeting that criterion and the error is material. The decision reinforces that s 473DD(b)(ii) is not a dead letter; it has substantive work to do in expanding the gateway for credible personal information that was not previously known.
The judgment also confirms that the characterisation of the error as failure to take account of a mandatory relevant consideration remains available and useful, consistent with the approach in cases such as Minister for Immigration and Border Protection v SZMTA. The statutory construction adopted aligns the procedural duty under s 473DD with the broader scheme's emphasis on finality while preserving a limited safety valve for exceptional cases.
Key passages with plain-English translation
The joint reasons contain several carefully crafted passages that repay close attention. At what corresponds to paragraph [9] the Court states: "Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances..." In plain English this means the provision cannot be read in a way that allows the decision-maker to pretend that satisfaction of the s 473DD(b) criteria is irrelevant to the exceptional circumstances question. The statutory purpose of giving applicants a narrow second chance would be defeated.
At [10]-[11] the Court explains that logic and policy require the Authority to assess the new information first against both s 473DD(b)(i) and s 473DD(b)(ii) and only then against s 473DD(a). If either or both of the (b) criteria are met, that "is a circumstance which must be factored into the subsequent assessment". The translation is straightforward: the statute creates a logical sequence. You cannot jump to the "exceptional circumstances" question while wearing blinkers that ignore whether the information is fresh, credible and potentially decisive.
Paragraph [12] contains the ratio in its most operational form: the Authority does not perform its procedural duty "if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances ... do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account". This is the passage that practising migration lawyers now cite when advising whether a particular IAA decision is vulnerable. It makes clear that the error is not a mere technical slip; it is a failure to discharge the statutory task.
Edelman J's separate reasons add an important nuance at what would be around [25]-[28]. His Honour agrees the sequential approach is "efficient and prudent" and reduces the risk of overlooking material circumstances, but does not accept that the statute "demanded by the logic" only one sequence. The plain-English point is that while best practice is to address s 473DD(b) first when it is engaged, the legislation may permit other analytical paths provided all mandatory matters are in fact considered. In the present case, however, one mandatory matter had been omitted entirely.
What fact patterns trigger this precedent
AUS17 will be engaged whenever three elements coincide. First, the decision under review must be a fast track reviewable decision referred to the Authority under Pt 7AA. Second, the Authority must have physically received new information from, or proposed to be given by, the referred applicant (as distinct from information supplied by the Secretary or otherwise obtained). Third, that new information must be capable of satisfying s 473DD(b)(ii) (i.e. it must be credible personal information not previously known which, had it been known, may have affected the consideration of the claims).
Typical triggering scenarios include: a post-hearing or post-decision letter from a witness, friend or relative that corroborates core claims and speaks to current risk; a new medical or psychological report containing personal information about the applicant's experiences or mental state that was not previously available; or updated identity or country-of-origin documents that contain personal details not known at the time of the delegate's decision. The precedent is not triggered by country information simpliciter, because such information cannot be "credible personal information" within s 473DD(b)(ii). Nor is it triggered where the new information comes from the Secretary.
The materiality threshold remains important. If the omitted s 473DD(b)(ii) assessment could not realistically have led to a different outcome on exceptional circumstances or on the ultimate review, relief may still be refused. However, in most cases where the information is capable of bearing on credibility or risk assessment, materiality will be straightforward.
How later courts have treated it
Although the judgment is relatively recent (14 October 2020), it has already been applied in the Federal Court and Federal Circuit Court as establishing the correct approach to s 473DD. Decisions have cited the joint reasons for the proposition that both limbs of s 473DD(b) must be addressed and their outcomes fed into the exceptional circumstances assessment. Courts have found jurisdictional error where the Authority has leap-frogged to s 473DD(a) after an adverse s 473DD(b)(i) finding without considering s 473DD(b)(ii) in respect of letters of support, updated witness statements, or new medical reports containing personal information.
Subsequent authority has also noted Edelman J's qualification that the statute does not rigidly prescribe the sequence in every conceivable case, but the predominant approach has been to treat the joint reasons' method as the orthodox and safest course. No court has suggested that AUS17 overstates the statutory duty. The decision has been treated as consistent with, and reinforcing, the earlier Full Court authorities on the construction of Pt 7AA. It has not been distinguished on its facts; rather, it is routinely applied where the factual pattern matches the three elements identified above. Later courts have accepted the characterisation of the error as failure to take account of a mandatory relevant consideration, thereby keeping the door open to relief under s 476 of the Act without needing to resort to broader jurisdictional error concepts.
Still-open questions
Several questions remain live after AUS17. First, precisely how the Authority is to "factor" a positive s 473DD(b)(ii) finding into the exceptional circumstances assessment is not exhaustively spelt out. The joint reasons state that it must heighten the prospect of the criterion being met, but the evaluative exercise retains a residuum of discretion. How that weighting operates in marginal cases is yet to be fully mapped.
Second, the interaction between s 473DD and the Authority's obligation to give the applicant an opportunity to comment under s 473DE where it does decide to consider new information remains somewhat unsettled. If the Authority reaches a positive view on both s 473DD(b) and s 473DD(a) after an initial assessment, must it then put the substance of the new information to the applicant for comment before relying on it adversely?
Third, the precise boundaries of "credible personal information" in s 473DD(b)(ii) are not closed. While country information is clearly excluded, hybrid documents that contain both personal assertions and country information may require granular parsing. The Court did not need to decide whether the letter in AUS17 itself satisfied s 473DD(b)(ii); that question was left for the Authority on remittal.
Finally, the standard of materiality required to obtain relief where the Authority has omitted the s 473DD(b)(ii) step is not yet the subject of a definitive post-AUS17 appellate pronouncement. While the Minister did not contest materiality in AUS17 itself, future cases may test whether an applicant must demonstrate a realistic possibility of a different outcome on the exceptional circumstances question or on the ultimate review decision. These open questions ensure that AUS17, while a significant clarification, has not exhausted the interpretive work required by the fast-track regime.