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[2020] HCA 37
appellant. Appeal allowed with costs; orders 2, 3, 4 and 5 of the Federal Court made on 16 October 2019 set aside and, in their place, order that the appeal to that Court be dismissed with costs; first...
1 cited instrument linked from this judgment.
When the Immigration Assessment Authority reviews fast-track protection visa refusals it cannot normally consider new information. If the applicant supplies new information, the Authority must check two specific boxes under s 473DD(b) before deciding whether exceptional circumstances exist under s 473DD(a). The first box is whether the information could not have been given to the Minister earlier. The second is whether it is credible personal information that was not previously known and which might have affected the original decision. If either box is ticked, that fact must be taken into account when deciding if exceptional circumstances exist. In this case the Authority only checked the first box for a new support letter and ignored the second before deciding there were no exceptional circumstances. That was legally wrong. The High Court held the error was jurisdictional, allowed the appeal, and restored orders sending the matter back for proper consideration.
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2,902 words · generated 24/04/2026
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.
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.
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.
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.
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.
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.
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.
S B Lloyd SC and J B King for the appellant (instructed by Varess)
G R Kennett SC with B D Kaplan for the first respondent (instructed by Sparke Helmore Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
AUS17 v Minister for Immigration and Border Protection
Immigration - Refugees - Application for protection visa - Immigration Assessment Authority ("Authority") - Review by Authority under Pt 7AA of Migration Act 1958 (Cth) - Where delegate of Minister for Immigration and Border Protection refused to grant appellant protection visa - Where decision referred to Authority for review - Where appellant's representative supplied Authority with further materials including letter of support from third party which post‑dated delegate's decision - Where Authority considered the letter was "new information" but concluded it was not able to be considered under s 473DD - Where Authority assessed new information against criteria in ss 473DD(b)(i) and 473DD(a) but not s 473DD(b)(ii) - Whether s 473DD requires Authority to consider criteria in ss 473DD(b)(i) and 473DD(b)(ii) before considering criterion in s 473DD(a).
Words and phrases - "credible personal information", "exceptional circumstances", "fast track reviewable decision", "Immigration Assessment Authority", "mandatory relevant consideration", "new information", "referred applicant".
KIEFEL CJ, GAGELER, KEANE AND GORDON JJ. This appeal from a judgment of the Federal Court of Australia, on appeal from a judgment of the Federal Circuit Court of Australia in an application for judicial review of a decision of the Immigration Assessment Authority, turns on the construction and operation of s 473DD within Pt 7AA of the Migration Act 1958 (Cth). Section 473DD in context Part 7AA has now been surveyed on numerous occasions. Section 473CC imposes a duty on the Authority to review a "fast track reviewable decision" referred to it by the Minister for Immigration and Border Protection by which a delegate of the Minister has refused under s 65 to grant a protection visa to the "referred applicant". The Authority is required by s 473DB to perform that duty by "considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral "without accepting or requesting new information" save to the extent that the Authority "gets" new information from the referred applicant or some other person under s 473DC and goes on to "consider" that new information under s 473DD. "Information" a communication of "knowledge of facts or circumstances ... of an evidentiary nature" amounts to "new information" if the information meets two conditions. The first is that the information was not before the Minister at the time of making the referred decision. The second is that the Authority considers that the information might be "relevant" to the review, meaning that the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review. The Authority "gets" new information within the meaning of s 473DC when and if the Authority physically obtains new information. The Authority goes on to "consider" new information within the meaning of s 473DD when and if the Authority takes new information it has got into account in making its decision on the review, assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding. Section 473DD is in the following terms: "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." Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met. The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of "exceptional circumstances" justifying its consideration of that new information. New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of "credible personal information", that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known. Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i). Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided. 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 justifying consideration of that new information in order to meet the criterion specified in s 473DD(a). Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant 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 in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). As will be seen, that result was recognised and correctly applied by the Federal Circuit Court in the present case, but regrettably not by the Federal Court. The present case The appellant is a Sri Lankan citizen of Tamil ethnicity from the Jaffna District of Sri Lanka whose application for a protection visa was refused by a delegate of the Minister in a fast track reviewable decision which the Minister referred to the Authority. Central to the appellant's claims to be a person in respect of whom Australia has protection obligations were his claims to fear mistreatment at the hands of the Eelam People's Democratic Party ("the EPDP") as well as at the hands of the Sri Lankan Army. Whilst the delegate accepted the evidence provided by the appellant in support of those claims to be generally credible, the delegate found that the appellant did not face a real risk of the mistreatment he feared. That was in part because the delegate found that the appellant was no longer a person of interest to the EPDP and in part because the delegate found that the individuals within the Sri Lankan Army who might want to harm the appellant did not extend to the "army establishment" but were confined to soldiers located at a particular army camp who were colleagues of a soldier killed in a car accident in which the appellant had been involved. Under cover of a submission from his migration agent, the appellant proffered to the Authority for the purpose of its review of the delegate's decision several documents which he had not provided to the Minister in support of his application. One was a letter which post-dated the decision of the delegate. The letter was from Mr Appathuray Vinayagamoorthy, a lawyer and former member of the Sri Lankan Parliament for the Jaffna District. The letter stated that the appellant and his family were known to Mr Vinayagamoorthy and went on to recount historical events corroborative of the appellant's claims. The letter added, "[e]ven still the EPDP and the Army visit his house to make inquiries about his whereabouts". The Authority affirmed the decision of the delegate, finding amongst other things that the appellant had fabricated his claim to fear mistreatment at the hands of the EPDP and had embellished his claim to fear mistreatment at the hands of the Sri Lankan Army. The Authority recorded in the statement of reasons for its decision on the review that the letter was "new information" which it had not considered in making its decision on the review. That was for reasons which the Reviewer who constituted the Authority for the purpose of the review explained in the following terms: "I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information." Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a). In the Federal Circuit Court, Judge Driver correctly so found. His Honour ordered the issue of writs of certiorari and mandamus directed to the Authority. Exercising alone the appellate jurisdiction of the Federal Court, Logan J took the view that the Authority was not obliged to have regard to the criterion specified in s 473DD(b)(ii) in assessing the letter against the criterion specified in s 473DD(a) and also took the view that the Authority's conclusion that the letter did not meet the criterion specified in s 473DD(b)(i) was a sufficient basis for its conclusion that the letter did not meet the criterion specified in s 473DD(a). In both respects, his Honour was wrong. There being no challenge to his Honour's further finding that any misapplication of s 473DD in relation to the letter was material to the Authority's decision on the review, it follows that his Honour was wrong to allow the Minister's appeal from the orders of Judge Driver. Those orders are now to be restored. Orders The appeal is to be allowed with costs. The substantive orders made by Logan J are to be set aside. In their place, it is to be ordered that the appeal from the orders of Judge Driver is to be dismissed with costs.
EDELMAN J. The facts and legislative provisions are set out in the joint reasons of the other members of this Court. I agree with the orders proposed by their Honours. With respect, I also agree that, as a matter of policy, a prudent approach for the Immigration Assessment Authority to take is that described in the joint reasons at [11]. When considering s 473DD, in relation to new information given or proposed to be given by a referred applicant, it would be efficient and prudent for the Authority first to consider the two conditions in s 473DD(b)(i) and s 473DD(b)(ii), and only subsequently to consider s 473DD(a) if one or both of the two conditions is met. My only departure from the joint reasons is that I do not consider that such a reasoning procedure is demanded by the logic of s 473DD. In my view, an alternative approach that is equally open to the Authority as a matter of law is to consider s 473DD(a) first. If the "exceptional circumstances" criterion were not met, then there would not be a further requirement for the Authority to consider either limb of s 473DD(b) individually. This alternative approach by the Authority would align with the same manner of consideration of s 473DD(a) by the Authority where the new information is not given or proposed to be given to the Authority by the referred applicant, such as where new information is given by the Secretary. In the scenario where new information is given by the Secretary, the Authority would never turn to consider s 473DD(b) independently, although the issues raised by the two limbs of s 473DD(b) might often be considered as material circumstances in the assessment of whether there are "exceptional circumstances". This alternative approach also recognises that there will be some cases where the criteria in s 473DD(b) might not be relevant to s 473DD(a). One of those cases might be where new country information is provided to the Authority either by the Secretary or by the referred applicant. In considering whether exceptional circumstances exist, the Authority is not required to ask itself whether the country information is "credible personal information" within s 473DD(b)(ii). Plainly, country information is not personal information, which in broad terms is "information or an opinion about an identified individual, or an individual who is reasonably identifiable". The reason, nevertheless, that I consider the approach proposed by the joint reasons to be both efficient and prudent in the particular circumstance of new information given, or proposed to be given, by a referred applicant is that it reduces duplication of consideration and helps to ensure that material circumstances are not overlooked. Since s 473DD(a) will often require consideration of the two criteria in s 473DD(b) as part of all the material circumstances, a sensible and efficient approach is for s 473DD(b) to be considered first when it is engaged so that those considerations are in the forefront of the Authority's mind when considering exceptional circumstances. In this case, both criteria should have been considered by the Authority in its assessment of whether exceptional circumstances existed to justify consideration of the letter but one of them was not considered. I agree with the joint reasons that Logan J erred on this point in his otherwise comprehensive and careful judgment.
AUS17
Minister for Immigration and Border Protection
Appeal allowed with costs; orders 2, 3, 4 and 5 of the Federal Court made on 16 October 2019 set aside and, in their place, order that the appeal to that Court be dismissed with costs; first respondent to pay the appellant's costs of the appeal to this Court.