ETZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BACKGROUND TO THE APPEAL 1 The appellant appeals from a decision of the Federal Circuit Court of Australia. 2 The appellant was born in Sri Lanka. He arrived in Australia on 24 December 2012. He was interviewed at Christmas Island. A further interview occurred on 22 January 2013. He was invited, in April 2013, to apply for a temporary protection visa or a Safe Haven Enterprise visa and duly lodged an application. 3 In 2017, the appellant was invited to attend an interview with a Department officer. He participated in that exercise, but on 3 November 2017, a delegate of the Minister refused to grant him a visa. The delegate's decision noted the appellant's assertion that since he had left for Australia, the appellant's father had informed him that the Sri Lankan police and Sri Lankan Army (the SLA) had attended the family home. 4 The delegate's decision to refuse the visa was referred to the Immigration Assessment Authority for review on 8 November 2017. On 30 November 2017, the appellant's migration agent provided a submission to the Authority. The submission contained new information that was not before the delegate, including country information reports from 2015-2017, a medical report of 2014, a report in the Guardian newspaper of 2016, various 2017 media references, and photographs showing the appellant attending ceremonies in Australia to commemorate Tamils who died in the Sri Lankan civil war. 5 The Authority examined all of the material, but determined that none of it should be taken into account as it could not be satisfied that the requirements of s 473DD(b)(i) or s 473DD(b)(ii) of the Migration Act 1958 (Cth) had been met. It did, however, take into account a Department of Foreign Affairs and Trade report published on 23 May 2018 containing updated country information. In August 2018, it affirmed the delegate's decision. 6 The appellant's claims were summarised by the Authority as follows (at [17]): • In December 2008, while working for his father fishing he was abducted by cadres of the Liberation Tigers of Tamil Eelam (LTTE). He was taken to an LTTE training camp and detained for around three months. He was given a uniform and photographed wearing the uniform. He was issued a photographic identity card. He was trained by the LTTE until he managed to escape and returned home. • In 2010 - 2011, he was caught up in a fight between two gangs of youths and he was arrested by the police and detained for approximately 15 days. He was released on condition that he report to the police on a regular basis after that. • Following his release, some of the youths who he had fought with bribed an army officer to shoot him as a way of scaring him. The officer did not shoot him. • He travelled to Dubai on a work visa. He lived in Dubai for around 10 - 11 months before returning to Sri Lanka. • Shortly after his return to his village in 2011, the Sri Lanka Army (SLA) searched his house one day and when he was asked for his ID, the old photograph of him in LTTE uniform fell out of his wallet and he was immediately detained on suspicion of having an LTTE past. The SLA took him to their camp nearby and detained him for 45 days. He was questioned repeatedly about the period of time that he trained with the LTTE and beaten repeatedly. His left knee was badly injured in one of the beatings. • He managed to escape from the SLA camp when the camp guards were not watching him and he returned home to his family. • He went into hiding in Colombo for several weeks until his father arranged for him to join a boat venture to Australia. • Since his arrival in Australia, the local police and the SLA have searched for him [back in Sri Lanka]. • The youths he fought with and the corrupt army officer will all search for him and harm him if he returns to Sri Lanka. • He fears he will be harassed and detained by the SLA on account of his Tamil ethnicity. 7 The Authority addressed each of these claims in turn (at [18]-[35]) and rejected the vast majority of them, finding the appellant to be a 'wholly unreliable witness' (at [39]). 8 The appellant sought judicial review in the Federal Circuit Court, where he was given the opportunity to explain orally the matters said to give rise to each of the grounds of review in the Federal Circuit Court. Each of the grounds was considered by the primary judge and rejected. 9 The three grounds of review in the Federal Circuit Court were: 1. Jurisdictional error 2. Bias based on conscious or unconscious prejudie [sic] by ignoring relevant materials. 3. Identifying a wrong issue or a wrong question. 10 His Honour took ground 1 as relating to the Authority's refusal to accept new information the appellant wished to place before it. His Honour found no jurisdictional error in the approach of the Authority (at [28]-[32]). Ground 2 was treated as raising bias and failure to take into account relevant material. The primary judge found (at [33]-[34]) that there was no evidence to indicate that the Authority did not bring an open mind to the review and the mere fact that adverse factual findings were made by the Authority did not raise an inference of bias. His Honour accordingly dismissed ground 2, as well as ground 3 noting that in the absence of particulars, it was impossible to detect any error in the Authority's approach to the relevant criteria under s 36(2)(a) and s 36(2)(aa) of the Act. 11 None of those grounds is advanced in this appeal from the Federal Circuit Court's decision. The appellant seeks to raise a single new ground.