4.2 The parties' submissions
44 It was not in issue that, regardless of any breach of procedural fairness by the delegate in determining the issue of relocation by reference to Mazar-e-Sharif, the fact of its decision refusing to grant the appellant the protection visa was sufficient to enliven the IAA's power and obligation to review the decision. Nor was it disputed that the IAA's decision affirming the delegate's decision had legal force and effect by virtue of s 473CC(2)(a) of the Act irrespective of any jurisdictional error by the delegate: see Plaintiff M174 at [52] and [70] (Gageler, Keane and Nettle JJ).
45 As mentioned, the appellant's challenge to the IAA's decision focused upon its reasons at [7] for finding that the new Taskera information did not meet the criteria in s 473DD, namely:
7. These claims [i.e. the new Taskera information] were not made to the delegate and I consider them to be new information. The information adds to the basis on which the applicant's claims were made before the delegate. No explanation has been provided as to why these claims were not provided to the delegate, or why they may be considered credible personal information. At the protection visa interview, the applicant was given an opportunity to provide to response [sic] to the information before the Department regarding the details of the money transfers the applicant had made to Kabul. The applicant provided a response. The applicant was asked at the end of the protection visa interview whether he had anything else to add and whether he would like to provide any further comment on the information before the Department. The applicant provided a response. He reiterated his claims that he had no family in Kabul. The applicant was represented at the protection visa interview. The representative provided two post interview submissions addressing the issue on which the new claims are based. The representative did not put forward the explanation now being advanced. I am satisfied that the applicant was given an opportunity to present his [sic] all his claims. The applicant has presented his claims with the assistance of a representative. The applicant has not satisfied me that the information could not have been provided prior to the decision being made or that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicants' [sic] claims. Having regard to all the circumstances, I am also not satisfied that there are exceptional circumstances to justify the consideration of this new information.
46 The appellant contends that there are two errors in the Authority's approach to the appellant's explanation of how the funds transfer operates, and, in particular, how the Taskera was used as a "password" for the agent to obtain the funds:
29. First, the Authority has focused exclusively on the Appellant's failure to provide the information earlier, in finding that the Appellant does not meet subsection (b)(ii) of section 473DD.
30. It appears that the IAA has interpreted "not previously known" as not previously known to the Applicant, which the IAA seems to consider is a sufficient basis to reject the information.
31. This can be inferred from the IAA's lack of satisfaction that the requirements of sub-section (b)(ii) are met; there are two other requirements, that the information be "personal" and that it be "credible". The information is obviously "personal".
32. Similarly, it appears to reach the level of credibility required for admissibility; if it were admitted, it would be open to the Authority to weigh the explanation up and reject it, however, if it forms the basis for rejecting its admission, some explanation would be required.
33. Second, it appears that the IAA's consideration of "exceptional circumstances" has focused exclusively on the conduct of the [appellant] in failing to put the explanation forward when his matter was being considered by the delegate. There is no evidence that the IAA has considered the significance of the information, or its centrality to the questions of relocation and credibility.
34. The result is that the IAA has misconstrued the relevant power, or asked the wrong question, and thus erred in the exercise of its jurisdiction.(emphasis in the original)
47 As to the first issue, it was not in issue that it is unnecessary for the purposes of satisfying the criterion in s 473DD(b)(ii) to establish that the appellant did not know the information in question. It is sufficient if the Minister did not previously know it: see Plaintiff M174 at [33]-[34] (Gageler, Keane and Nettle JJ); see also BBS16 at [106] (the Court). Nor did the Minister take issue with the appellant's submission that the new Taskera information was "credible" and "personal" information for the purposes of s 473DD(b)(ii). As such, while the Minister formally submitted that the decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 as to the proper construction of the word "credible" in s 473DD(b)(ii) was not correctly decided, the Minister accepted that it was unnecessary to decide that question in the present case.
48 However, relying upon the decisions of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (BVZ16) and the Full Court in BBS16, the appellant submitted that:
(1) "exceptional circumstances" in s 473DD(a) are broader than simply the issues raised in s 473DD(b), and must be given their ordinary meaning to mean circumstances which are unusual or out of the ordinary having regard to all of the circumstances; and
(2) whether there are "exceptional circumstances" for the purposes of s 473DD(a) cannot be considered completely independently of the matters raised in s 473DD(b).
49 As such, the appellant submitted that there is an overlap between the question of whether the IAA erred in unduly limiting its consideration of whether there were exceptional circumstances for the purposes of s 473DD(a) and the question of whether the IAA erred in failing to consider whether the new Taskera information, as credible personal information, may have affected the consideration of the appellant's claims.
50 The appellant contended that, contrary to these principles, the IAA's consideration of whether there were "exceptional circumstances" focused exclusively upon whether the information was new information and upon the appellant's failure to provide the information earlier when his application was being considered by the delegate. In other words, the appellant's counsel submitted that all of the sentences at [7] of the IAA's reasons "are just different ways of saying either, again, that the information was new, or that the applicant had an opportunity to provide the information … or that the applicant did provide some further information". Thus while the appellant accepted that those matters are not irrelevant, he submitted that they were "not the whole of the question."
51 It followed, in his submission, that there is no evidence that the IAA considered the significance of the new Taskera information to the appellant's claims, and the reference at [7] of the IAA's reasons to the information adding to the basis on which his claims were made before the delegate was no more than a finding that the information was new. Yet in his submission the evidence as to money transfers to Kabul was critical to the question of whether it was reasonable for him to relocate to Kabul because that evidence "would, if taken at face value, suggest that the Appellant's father and brother were in fact in Kabul, and could provide support. It was also relevant to the Appellant's credibility more generally." Thus, the appellant's counsel submitted that the significance of the new Taskera information is that "it clarifies the information provided to the delegate and it also makes it more concrete and more particular, and [it] is often the provision of particular detail which fleshes out a claim and makes it feel more real and more concrete."
52 Against this, the Minister submitted that it could be inferred from the IAA's reasons at [7] that it considered that the new Taskera information was not information that could have affected the consideration of the appellant's claims for the purposes of s 473DD(b)(ii) and that this was taken into account by the IAA in finding that the circumstances were not "exceptional" for the purposes of s 473DD(a).
53 In any event and for the same reasons, the Minister submitted that any error was not material and therefore not jurisdictional in nature (applying Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 (Hossain)). It follows that the issues on the appeal ultimately turn upon the proper construction of the IAA's reasons.