FUR18 v Minister for Immigration

The applicant, FUR18, sought judicial review of the Minister for Immigration's decision to refuse their application for a Safe Haven Enterprise visa. FUR18, an unauthorised maritime arrival, claimed to fear harm in Afghanistan due to their identification as a trans-amorous queer member of the LGBTIQ community. The core of the dispute concerned the interpretation and application of the "exceptional circumstances" threshold under section 473DD(a) of the *Migration Act 1958* (Cth) and whether the decision-maker adequately considered new information provided by the applicant. The matter was heard by Judge McNab in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the delegate of the Minister had applied an unduly narrow construction to the phrase "exceptional circumstances" in section 473DD(a) of the *Migration Act*. Furthermore, the court had to consider whether the delegate failed to properly consider new information that had been provided by the applicant regarding their fears of harm in Afghanistan.

Judge McNab found that the delegate had indeed applied an unduly narrow interpretation of "exceptional circumstances," failing to give sufficient weight to the specific vulnerabilities faced by the applicant as a member of the LGBTIQ community in Afghanistan. The court reasoned that the delegate's assessment did not adequately engage with the evidence of the applicant's specific fears and the potential for harm, thereby misconstruing the scope of the exceptional circumstances provision. The failure to properly consider the new information was also a critical factor in the court's decision.

The application for judicial review was allowed.