Bau18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an application for judicial review brought by the applicant, a citizen of Sri Lanka, against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant had applied for a Safe Haven Enterprise Visa (SHEV) based on fears of harm if returned to Sri Lanka due to his Tamil ethnicity, imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), and his participation in protests in India. A delegate of the Minister initially refused the visa, and this decision was affirmed by the Administrative Appeals Tribunal (the Authority). The case was heard by Emmett J.

The primary legal issues before the court were whether the Authority erred in its decision to affirm the refusal of the SHEV. Specifically, the court was required to consider whether the Authority had properly exercised its discretion in refusing to have regard to new information provided by the applicant in a submission dated 10 May 2017, pursuant to section 473DD of the *Migration Act 1958* (Cth). Further, the court had to determine if the Authority had adequately considered the applicant's claims regarding his risk of harm in Sri Lanka, including his alleged LTTE affiliations, activities in India, and concerns arising from a data breach by the Australian Government, in light of the protection provisions under section 36(2)(a) and section 36(2)(aa) of the Act, as well as the complementary protection provisions.

Emmett J's reasoning focused on the Authority's assessment of the applicant's claims and its decision regarding the new information. The Authority had found aspects of the applicant's claims regarding LTTE affiliations to be vague and fabricated, and his involvement in protests in India to be of "very low level". It concluded that these claims, along with concerns about a data breach and his status as a returning asylum seeker, did not establish a real chance of suffering significant harm or persecution. Crucially, the Authority determined that it was not satisfied that the new information met the criteria under section 473DD, and therefore did not have regard to it. The Authority ultimately found that the applicant was not entitled to protection under either section 36(2)(a) or section 36(2)(aa) of the Act.