CHV16 v Minister for Immigration

This matter concerned an application to review a decision of the Immigration Assessment Authority. The applicant sought to challenge the Authority's determination that there were no exceptional circumstances justifying the consideration of new information provided by the applicant. The dispute centred on whether the Authority had lawfully applied section 473DD of the Migration Act 1958 (Cth) and whether its failure to consider relevant material constituted a jurisdictional error.

The primary legal issue before the court was whether the Immigration Assessment Authority erred in its application of section 473DD of the Act. Specifically, the court was required to determine if the Authority failed to consider whether the new information or the applicant's circumstances satisfied it that exceptional circumstances existed, thereby justifying the consideration of that information. This involved assessing whether the Authority had given adequate consideration to all relevant circumstances in its determination.

The court reasoned that the Authority's approach to section 473DD was flawed. While acknowledging that the Authority is not required to provide reasons for the exercise of its discretion under this section, the court found that in this instance, the Authority had provided reasons which allowed for inferences to be drawn about what it considered material. The Authority's stated reason for not being satisfied that exceptional circumstances existed was the absence of submissions, despite the applicant having made relevant submissions. Crucially, the Authority failed to consider the relevance of a published article, the *Doherty* article, which the applicant contended supported his claims of a real risk of harm upon return. The court found that the Authority did not engage with this information at all, despite it being open to the Authority to see it as supporting the applicant's claims. This failure to consider relevant material, in circumstances where the applicant had presented arguments for exceptional circumstances, constituted a jurisdictional error.

The court found that the Immigration Assessment Authority had committed a jurisdictional error by failing to properly consider the applicant's circumstances and the new information in accordance with section 473DD of the Migration Act 1958 (Cth). The application for review was therefore granted.