ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

The applicant, ABF17, sought remedies under section 476 of the *Migration Act 1958* (Cth) in relation to a decision by the Immigration Assessment Authority (the Authority) affirming a decision not to grant a Temporary Protection visa. The core of the dispute concerned whether the Authority had correctly applied section 473DD of the Act when considering new information provided by the applicant. The matter was heard by Judge Manousaridis in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the Authority identified the wrong issues and whether it applied section 473DD of the Act on the basis that it could decide not to consider new information without first determining if the requirements of section 473DD(b) were satisfied. Specifically, the court had to consider the proper sequence and conditions for the Authority to assess new information under section 473DD, which involves both exceptional circumstances justifying consideration (s 473DD(a)) and specific criteria relating to the nature of the information (s 473DD(b)).

The court's reasoning, informed by the High Court decision in *AUS17 v Minister for Immigration and Border Protection* [2020] HCA 37, clarified the mandatory process for assessing new information under section 473DD. The Authority must first assess whether the new information meets the criteria in section 473DD(b) (i) or (ii). Only if one or both of these criteria are met should the Authority then consider whether the requirement of exceptional circumstances in section 473DD(a) is satisfied. The court found that the Authority's approach did not constitute jurisdictional error, as it had not failed to take account of a mandatory relevant consideration, nor was there evidence that any alleged misapplication was material to the decision.

The application was dismissed, and the applicant was ordered to pay the first respondent's costs in the amount of $7,206.