EAT17 v Minister for Home Affairs

In the case of EAT17 v Minister for Home Affairs, the applicant, a Sri Lankan national, appealed against a decision of the Federal Circuit Court to dismiss his application for judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse his application for a Safe Haven Enterprise visa. The applicant alleged he had suffered serious harm at the hands of the Criminal Investigation Department (CID) in Sri Lanka due to his imputed association with the Liberation Tigers of Tamil Eelam (LTTE). The IAA affirmed the delegate's decision that the applicant did not face a real risk of serious harm in Sri Lanka, finding that the risk was localised to Trincomalee and the applicant could relocate to live with his parents. The applicant contended the IAA erred by failing to consider exercising its discretion under s 473DC of the Migration Act 1958 (Cth) to obtain further information, made its decision on a different basis to the delegate, and did not consider whether it would be reasonable for the applicant to relocate within Sri Lanka. The Minister for Home Affairs opposed the appeal, contending that the IAA did not make a factual error in finding the applicant's parents lived in Jaffna, and the error was irrelevant to the IAA's decision.

The primary issue before the court was whether the IAA erred in failing to consider exercising its discretion to obtain further information, made its decision on a different basis to the delegate, and did not consider whether it would be reasonable for the applicant to relocate within Sri Lanka. The court found that the IAA did not make a factual error in finding the applicant's parents lived in Jaffna, but the error was irrelevant to the IAA's decision. The court held that the IAA's decision was based on the finding that the harassment of the applicant by the CID and extortion demands on his aunt were primarily localised criminal actions by the CID in Trincomalee, and this had occurred five years prior to the IAA's decision. The court also held that the lack of any evidence from the applicant as to what he might have said to the IAA about relocating to live with his parents or elsewhere in Sri Lanka meant that the absence of the asserted error could not realistically have resulted in a different decision by the IAA.

The appeal was allowed, the order of the Federal Circuit Court was set aside, and the matter was remitted to the IAA for determination according to law. The first respondent was ordered to pay the costs of the appellant, to be assessed if not agreed.