Eem17 v Minister for Immigration and Border Protection

The appeal in Eem17 v Minister for Immigration and Border Protection involved the appellant challenging the Federal Circuit Court's decision to dismiss his appeal against the refusal of his application for a protection visa. The appellant argued that the Immigration Assessment Authority had erred in considering "new information" without determining whether the conditions in section 473DD of the Migration Act 1958 (Cth) were met, thereby affecting the fairness of the review process. The Federal Circuit Court had dismissed the appeal, but the appellant sought further review in the court.

The legal issue central to this appeal was whether the Authority's consideration of the "new information" provided by the appellant after the original decision was made constituted a jurisdictional error. Specifically, the court had to determine if the Authority was required to follow the process outlined in section 473DD before considering any new information not previously available to the decision-maker. The appellant argued that the Authority failed to undertake the necessary steps to assess if the new information could be considered, which was a critical procedural requirement.

The court found that the Authority did indeed consider "new information" that was not available to the delegate at the time of the initial decision. This information included arguments and evidence regarding the appellant's involvement with the Australian Tamil Congress (ATC) and related fears of harm if returned to Sri Lanka. The court highlighted that the Authority did not follow the statutory requirements of section 473DD to determine whether the new information could be lawfully considered. This omission was deemed a jurisdictional error, affecting the fairness and legality of the review process. Consequently, the court allowed the appeal and set aside the decision of the Authority, remitting the matter for redetermination according to law. The Minister was also ordered to pay the appellant's costs of the appeal.