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[2018] FCA 52
Federal Court of Australia
2018-02-08
Griffiths J
Original judgment source is linked above.
Introduction 1 This is an appeal from an ex tempore judgment and orders of the Federal Circuit Court of Australia (FCCA) dated 6 June 2017. The decision is reported as CVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 1203. The primary judge dismissed the appellant's amended application for judicial review of a decision of the Immigration Assessment Authority (IAA). 2 On 5 September 2016, the IAA affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (protection visa). The delegate's decision was affirmed because the IAA found that the appellant did not satisfy either ss 36(2)(a) or (2)(aa) of the Migration Act 1958 (Cth) (the Act).
Summary of background facts 3 The following summary of the background facts draws substantially on the primary judge's reasons for judgment and the IAA's reasons for decision dated 5 September 2016. 4 The appellant, who is a citizen of Sri Lanka, claimed to fear harm if he were returned to Sri Lanka on the basis of him having previously been detained, beaten and the subject of extortion by a political and paramilitary group. He claimed to fear harm because he was a Tamil from the north of the country, because of his membership of the particular social groups of Tamil businessmen and failed asylum seekers, and because of his imputed pro-LTTE political opinion. 5 The appellant's protection visa application is dated 20 January 2016. It was received by the Department in mid-February 2016. After the delegate decided on 7 July 2016 to reject the appellant's claim for a protection visa, the case was sent to the IAA for review under Pt 7AA of the Act. 6 The appellant's case may be broadly summarised as follows: (a) The appellant is a Tamil and a Hindu from the Northern Province of Sri Lanka and was born in the Jaffna district. (b) In 2007, while operating a liquor store in the Jaffna district, members from a Tamil political and paramilitary group called the Eelam People's Democratic Party (the EPDP) and the Sri Lankan Army (SLA) detained and tortured the appellant for three to four days and threatened to kill him if he did not pay 150 lakhs. They later agreed to accept 100 lakhs. (c) The appellant was allowed to contact his wife during his period of detention. His mother sold his liquor shop and licence, raising 40 to 43 lakhs. His wife raised 17 to 20 lakhs by selling some jewellery. (d) The appellant's friend, KV, took the 60 lakhs to a secret location to secure the appellant's release, and signed a guarantee stating he would pay the balance of the amount, being 40 lakhs. (e) The appellant was taken to a field and was pushed out of a moving vehicle, during which he injured his shoulder. (f) The appellant's identity card was taken, and the men threatened to kill his family if he told anyone what had happened to him. (g) The appellant reported the incident to Grama Sevaka (a local government agency) and was told nothing could be done. He was issued a new identity card which he received in 2007. (h) The appellant relocated to Colombo and worked as a chef in a Tamil food shop. The appellant claimed that while he was in Colombo, his friend KV told him that armed men had contacted him and asked him to pay the balance of the money. The appellant claimed that KV told the men he did not know of the appellant's whereabouts, and was later shot and killed. (i) The appellant claimed the men who were after him had come to the food shop at a time when he was not working and not in attendance. He said he knew who these men were, after the owner of the shop and an assistant described their appearances. (j) After these events, the appellant travelled to India, using his own passport, where he remained until 2009. (k) The appellant returned to Sri Lanka in 2009 and commenced a new business. He alleged that at the time, a Tamil businessman, who was well-off like him, was targeted by paramilitary groups and the army. The businessman's son was also abducted and killed after he was asked to pay a large sum of money and the police took no action. (l) The appellant was afraid after this incident and moved to Kilinochchi and opened a restaurant. Sometime in October 2011, the appellant was approached by men, including one whom he recognised as torturing him in 2007. He was given eight days to pay the outstanding 40 lakhs and was bashed. (m) The appellant handed the restaurant over to a friend and went into hiding for a few days until he left Sri Lanka. The appellant said that he left Sri Lanka by plane to Malaysia in October 2011, where he remained for a few days before travelling by boat to Indonesia. (n) The appellant left Indonesia by boat in November 2012 and travelled to Australia by sea. (o) In around 2014, while in Australia, the appellant's wife informed him that unknown persons had approached her at a bus stand in Jaffna, asking for the appellant and stating he owed them money. She subsequently moved houses due to fear. (p) The appellant fears that he will be seriously harmed or killed by the army or members of the Tamil paramilitary groups if he returns to Sri Lanka, because he owes the army or Tamil paramilitary group 40 lakhs.
The IAA's reasons for decision 7 The key findings made by the IAA are as follows. 8 The IAA accepted that the appellant operated a liquor shop in 2007, was targeted for extortion and detained by the EPDP and that officers of the SLA may have been present. The IAA accepted that this forced the appellant (or his mother) to sell his business / licence to pay some of the extortion amount and was a catalyst for him to leave Jaffna. 9 The IAA accepted that KV was a close friend of the appellant and facilitated his release during the 2007 extortion. It did not accept that there was an outstanding extortion amount owed to the EPDP, that KV acted as a surety in relation to that amount or that KV was murdered. The IAA considered the appellant's evidence regarding KV to be "in several respects unconvincing" (at [18]). It said that it was not clear why KV would provide an ongoing surety for the appellant, if there was no prospect or plan for how it would be paid. 10 At [21] to [24] of its reasons for decision the IAA did not accept that the EPDP tracked the appellant to his shop in Colombo, or that the visit prompted him to leave for India and return his family to Jaffna. The IAA considered that it was implausible that he would leave on his own for India and return his family to the area where the risk from the EPDP originated and was at its highest (see at [22]). 11 The IAA accepted that the appellant went to India, returned in 2009 and opened a store in Jaffna where he lived for a little less than a year [24]. The IAA accepted that security threats in Jaffna remained present and this may have been a catalyst for the appellant and his family to move from the Northern province to Kilinochchi. However, it did not accept as plausible the appellant's claims to have avoided detection by living discreetly whilst in Jaffna and travelling between Jaffna and Colombo at a time when movement of Tamils in the country was scrutinised closely. It did not accept that the EPDP had any ongoing interest in the appellant after 2007 or that he was confronted, assaulted and threatened by them at his new location in Kilinochchi [27]. 12 The IAA found the risk of harm to the appellant on the basis of being a wealthy Tamil business owner was remote, having regard to country information which suggested the EPDP's power was diminishing. The IAA accepted the appellant was seriously mistreated in 2007 on the basis of his Tamil ethnicity or because he was a Tamil businessman but was satisfied the situation had improved since the end of the civil war in 2009 having regard to country information [33]. The IAA was not satisfied the appellant would face a real chance of harm on the basis of his Tamil ethnicity or his inability to speak Sinhalese. 13 In relation to the appellant's claim to fear harm on the basis of an imputed pro-LTTE political opinion, the IAA noted the appellant did not claim to have been involved with the LTTE, and found the appellant had no connection or association with LTTE nor would he be imputed with a pro-LTTE political opinion. The IAA had concerns with two documents provided to the IAA by the appellant, one being a letter from the Sri Lankan police which did not have an addressee, and a letter purportedly from a member of the Sri Lankan Parliament. It was concerned with how the documents related to the appellant's claims. It was not clear to the IAA what prompted the letter from the police, and there was no suggestion that the appellant had any profile as a person connected to the LTTE. It concluded that the "limited probative value" of the documents was outweighed by the IAA's findings regarding his credibility and the implausibility of his other claims [46]. 14 Regarding the appellant's claim to fear harm on the basis of being a failed asylum seeker, the IAA noted that the appellant had departed Sri Lanka legally, had been able to travel freely through Sri Lanka in the past and did not have an LTTE-associated profile. The IAA was satisfied that any brief detention and questioning that the appellant would experience on return to Sri Lanka would not constitute serious harm, and that his status as a failed asylum seeker would not impute him with any political opinion. 15 The IAA was not satisfied that the appellant met the criteria for the grant of the visa under s 36(2)(a) of the Act. For similar reasons, the IAA was not satisfied that the appellant faced a real risk of significant harm under s 36(2)(aa) of the Act if returned to Sri Lanka.
The primary judge's reasons for decision summarised 16 The appellant was represented by counsel below and raised the following grounds in his amended originating application (without alteration): 1. The applicant claimed that in 2007 he fled to India because the EPDP had recently found the applicant in Colombo and demanded that he pay some money to them (CB 43, 58, 131 [73], 180 [22]) The Immigration Assessment Authority ("the IAA") accepted that the applicant travelled to India in about 2007, rejected the applicant's explanation for travelling to India in 2007, but did not otherwise consider and make a finding concerning why the applicant travelled to India. In the circumstances, the IAA fell into jurisdictional error. 2. The applicant's agent provided a submission to the IAA reminding the IAA of the need to consider the applicant's claims cumulatively. The IAA did not consider whether, considering the applicant's claims cumulatively or collectively, he had a well-founded fear of persecution. If so, the IAA fell into jurisdictional error. 17 The primary judge rejected both grounds for reasons which are contained in the following extracts from his Honour's reasons for judgment: Ground 1 38. Mr Zipser of counsel submitted in relation to Ground 1 that there had not been an intellectual engagement with the applicant's claim to fear harm in relation to the extortion that he had faced from the EPDP in respect of his reasons for travelling to India and that this constituted a jurisdictional error. A fair reading of the Authority's reasons reflects an intellectual engagement with the applicant's claims and it was open to the Authority to make adverse findings in relation to the applicant's credibility. It was not necessary for the Authority to accept the applicant's evidence as to why he left for India and it was not necessary for the Authority to make a finding of fact as to the applicant's actual reason for going to India. 39. It was open to the Authority to reject that the EPDP had tracked the applicant to Colombo and to reject that the claimed visit prompted him to leave for India. The Authority was under no obligation to accept uncritically the applicant's claims and evidence. The Authority did not have to have rebutting evidence before holding that the particular assertion was not made out. The Authority set out comprehensive reasons for rejecting the applicant's claims that his departure to India was prompted by a visit by the EPDP. That finding was open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 1. Ground 2 40. In relation to Ground 2, Mr Zipser of counsel submitted that the Authority had failed to consider the applicant's claims cumulatively. I accept the first respondent's submission that the reference to having considered the totality of the applicant's circumstances and the reference to considering all the circumstances are to the same effect as having considered the claims cumulatively. Further, the Authority expressly referred to having considered the claims singularly and cumulatively in relation to the issue of complementary protection. 41. The Authority correctly identified the relevant law in relation to the requirements of s.5H(1), including having a well-founded fear of persecution and the work done by s.5J. The Authority made a finding in relation to that well-founded fear in holding that the applicant did not meet the requirements of the definition of "refugee" in s.5H(1). On the face of the Authority's reasons the Authority made that finding having considered the claims cumulatively. No jurisdictional error is made out by Ground 2.
The appeal 18 The appeal has had an unusual procedural history. It was originally listed for hearing on 24 November 2017. Shortly before that day, the appellant emailed the Minister's legal representative and said that he was "very sick and unable to attend the court hearing on 24 November 2017". He attached a medical certificate dated 21 November 2017, issued by Dr Ranjini Krishna from Aiya Medical Centre, which simply stated that the appellant was receiving medical treatment for the period 21 November 2017 to 27 November 2017 and "will be unfit to continue his usual occupation". The appellant also provided copies of a Pathology and Ultrasound Request issued by the same doctor and dated 21 November 2017, which requested an ultrasound of a particular part of the appellant's body. The Court granted an adjournment of the hearing until 10.15am on 1 December 2017, which was after the period covered by the medical certificate. 19 The appellant emailed the Court Registry on 24 November 2017 and stated that "my health condition deteriorated and I am in severe pain and I am also referred by my GP to the Psychologist for counselling and management of trauma related issues". On 28 November 2017 the appellant sent another email to the Court Registry, attaching a further medical certificate dated 27 November 2017 by Dr Krishna. As with the initial medical certificate, it stated that the appellant was receiving treatment for the period 27 November 2017 to 11 December 2017 inclusively and "will be unfit to continue his usual occupation". The appellant also provided a copy of a referral issued by Dr Krishna to the Westmead Hospital Emergency Department which stated that the presenting problem was "unusual vertigo, unsteady gait and vague back pain". The appellant also provided a copy of a letter from a psychologist, Poonkulali Govintharajah, from KidPsych. The letter had no addressee and stated: [The appellant] has continued counseling (sic) in order to process the trauma and other related issues he had experienced whilst living in Sri Lanka. At present he continues to experience anxiety and depression. His current symptoms are being exacerbated by the uncertainty of his future and safety of his wife and children in Sri Lanka. 20 By email dated 29 November 2017, the Court Registry informed the parties that the appeal had been adjourned to 10:15 am on 12 December 2017. The appellant was advised by the Registry that if he wished to seek a further adjournment of the appeal, he needed to file and serve before the hearing date adequate medical evidence that specifically addressed his capacity to attend the hearing and conduct his case on 12 December 2017. 21 On 6 December 2017, the Court Registry sent an email to the appellant which related to another appeal and wrongly advised the appellant that his appeal would be heard on 1 February 2018 at 10:15 am. On Saturday, 9 December 2017, the appellant sent an email to the Court Registry and referred to the email from the Court Registry which stated that his hearing would be on 1 February 2018. He said that he was "very sick" and unable to attend Court on 12 December 2017. He said that he was "severally affected by Vertigo viral infection and suffering unable to stand due to unbalance" (sic). He asked that his appeal be deferred to March 2018. He attached a medical certificate from the same doctor which stated that the appellant was receiving medical treatment for the period 11 December 2017 to 26 December 2017 and that he "will be unfit to continue his usual occupation". The certificate is dated 8 December 2017. 22 In view of the erroneous information provided by the Court Registry to the appellant concerning the hearing of his appeal, the 12 December 2017 hearing date was vacated. The Court made a formal order on 11 December 2017 vacating the hearing scheduled for 2.15 pm on 12 December 2017 and listing the appeal for hearing for a half a day commencing at 10.15 am on 7 February 2018. A copy of these orders was emailed to the parties on 11 December 2017 using the same email address as previously. The appellant was informed by a separate email sent on 11 December 2017 to the same email address as previously that the hearing would proceed at 10:15 am on 7 February 2018 and that if he requested a further adjournment he was required to provide adequate medical evidence which identified any medical condition and why that condition affected his capacity to conduct his case. 23 The appellant represented himself and was assisted by an interpreter at the hearing. He sought an adjournment on the basis that he said that he had recently started work and had some money and wished to retain a barrister or lawyer to present his case. The Minister opposed the adjournment on the basis that the matter had already been adjourned three times and the appellant provided no satisfactory explanation for having delayed in retaining legal assistance. The adjournment was refused. I accept the Minister's submissions that the explanation for the delay in retaining legal representation was not satisfactorily explained even though the appellant was asked four times to describe the steps which he had taken. Furthermore, as the history of the matter set out above reveals, there have been three previous adjournments, albeit for medical and other reasons. It is desirable that there be finality in the litigation. 24 The notice of appeal contained three grounds of appeal (without alteration): First Ground of appeal 1. The appellant travelled from Sri Lanka to India where he stayed until the end of the civil war in Sri Lanka in 2009: CB 42, 43, 58 [19] and [20]. The appellant then returned to Sri Lanka: CB 58 [20], 177. The appellant claimed that in 2007 he fled to India because the EPDP had recently found the appellant in Colombo and demanded that he pay some money to them (CB 43, 58, 131 [73], 180 [22]). The Immigration Assessment Authority (IAA) accepted that the appellant travelled to India in about 2007 and returned in 2009 following the cessation of the civil war: CB 180 [24]. "I have concerns with the applicant's evidence in relation to his decision to leave for India ... I find it implausible that he would leave for India on his own and return his family to Jaffna knowing how serious the risks from the EPDP had become ... I do not accept that if these events genuinely occurred that he would leave the country and return his family to the area where the risk from the EPDP originated and was its highest ... Given these findings, I do not accept that the EPDP tracked the applicant to Colombo or that the visit prompted him to leave for India and return his family to Jaffna." 2. The appellant's complaint is that, although the IAA rejected the appellant's explanation for travelling to India in 2007, it did not otherwise consider and make a finding concerning why the appellant travelled to India. 3. The question why the appellant travelled to India in 2007 was an important issue before the IAA. On the appellant's case, that the fact that he travelled to India was consistent with, or corroborated, his claimed fear of persecution by the EPDP. The appellant's complain is that, in order for the IAA to properly consider the appellant's claim, it must make a finding as to why the appellant travelled to India, and it is insufficient for the IAA to merely reject the appellant's explanation for why he travelled to India without making a positive finding as to why he travelled to India. Yet the IAA did not make a finding as to why the appellant travelled to India in 2007. 4. In WZAQU v Minister (2013) 140 ADL at [12]-[13] Flick J stated: [12] In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is "the reality, and not the appearances, which matters": compare Minister for Immigration and Ethnic Affairs Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595; 144 ALR 567 at 594; 48 ALD 481 at 506 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in "an active intellectual process directed at the representation or submission" Tickner v Chapman (1995) 57 FCR 451 at 462; 133 ALR 226 at 238 (Ticknef) per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 (NAJT). Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that "an active intellectual process" was required: NAJT at [46] per Hill; see also at [212] per Madgwick J. [13] A conclusion that a decision-maker has failed to consider a claim or part of a claim is a conclusion to be reached by reference to the reasons for decision. It may be that some reservation should be exercised before such a conclusion is reached where the reasons that have been provided are "otherwise comprehensive": WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD; [2003] FCAFC 184 ... 5. In the present case, the fact that the IAA did not make a positive finding as to why the applicant travelled to India supports a conclusion that it did not properly consider his claim. The Federal Circuit Court Judge Street erred by not finding there was jurisdictional error in the Authority's decision on this basis. Second Ground of appeal 6. The appellant's agent provided a submission to the IAA reminding the IAA of the need to consider the appellant's claims cumulatively: CB 163-164. On the question of whether the IAA considered the appellant's claims cumulatively, the closest finding by the IAA is in paragraph 63 at CB 188 commencing: "Considering the totality of his circumstances, I find the applicant would not face a real chance of serious harm on the basis that he is a failed asylum seeker ... " 7. In W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21] French J stated: "It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a convention reason, the Tribunal must have regard to the whole case advanced by the applicant-Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case, these were described in the submissions put to Katz J, as 'risk factors'. They were causative factors which might collectively engender the relevant risk. That is not the same as a cumulative concept of persecution itself which appeared to underpin the applicant's submissions. Authorities cited on behalf of the applicant did not case much light on the submissions in this respect. The observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295 related to the requirement that the delegate ' ... consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were to be returned to China." 8. There is some ambiguity in interpreting the IAA's finding in paragraph 63. However, on one interpretation of the finding, the IAA did not consider whether, considering the applicant's claims cumulatively or collectively, he had a well-founded fear of persecution. If so, the IAA fell into jurisdictional error. Third Ground of appeal 9. The evidence before the Authority indicated that the situation in Sri Lanka was fluid. The Authority failed to consider the fluidity of the situation in Sri Lanka, including the real possibility that the Sri Lankan authorities would increase restrictions and discrimination placed on Tamils returning to Sri Lanka. In the circumstances, the Authority fell into jurisdictional error. The Federal Circuit Court erred by not finding there was jurisdictional error in the Authority's decision on this basis. 10. The Authority did not accept "there is a real risk that [the appellant] would be subjected to cruel, inhuman or degrading treatment or punishment intentionally inflicted" for specified reasons. The Authority erred in its construction of the term "intentionally inflicted" in the definition of "cruel or inhuman treatment or punishment" in s 5(1) of the Migration Act. This was a jurisdictional error. The Federal Circuit Court should have found this was a jurisdictional error. 11. In November 2016, the High Court granted the applicant in SZTAL v Minister for Immigration and Border Protection the High Court granted the applicant special leave appeal from the Dull Federal Court decision. The appeal was heard by the High Court on 5 April 2017, and the High Court has reserved its decision. In the event the appeal succeeds, the appellant's ability to raise this point at a later stage is preserved. The parties' submissions summarised 25 Directions were made on 21 July 2017 for the parties to file and serve written submissions. The appellant did not file any written submissions. His oral submissions may be summarised as follows. He said that he continued to fear persecution if he were returned to Sri Lanka and that his wife and family have been moving from place to place within that country. He said that he was expecting a favourable decision on his appeal. When asked whether he wished to say anything further in relation to his three grounds of appeal the appellant simply repeated that he was expecting a favourable outcome. 26 The Minister filed a written outline of submissions. Those submissions are largely reflected in the reasons given below for rejecting each of the three grounds of appeal so it is unnecessary to summarise them. Disposition of the appeal 27 (a) Ground 1: In essence, the appellant contends that the primary judge erred in not finding that the IAA fell into jurisdictional error in not considering and making a finding regarding why he left Sri Lanka and travelled to India in 2007 when it rejected his explanation for having gone there. 28 The IAA explained at [22] to [24] of its reasons for decision why it rejected the appellant's claim that his departure to India was prompted by a visit from the EPDP. These findings are consistent with the IAA's reasons for decision at [16] and [19] where it stated that it did not accept the appellant's claims and evidence relating to certain events after the alleged extortion, including that the appellant continued to owe a residual debt to the EPDP after 2007. The IAA found the appellant's evidence to be unconvincing in respect of his claim that the EPDP tracked him down in Colombo and presented at his workplace in Colombo on only one occasion. It also questioned how it was possible that the appellant was subsequently able to arrange his departure to India, and his family's return to Jaffna, without being discovered [at 21]. 29 The IAA's rejection of the appellant's evidence in relation to why he decided to leave Sri Lanka for India was reasonably open to it based on the evidence before it. As the Minister submitted, the IAA was under no obligation to accept uncritically any and all allegations made by the appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; 52 FCR 437; 124 ALR 265 at 278). Further, the IAA does not have to have rebutting evidence available before holding that a particular assertion by an appellant was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; 34 ALR 347; 34 ALD 347 at [7]). No appealable error has been demonstrated in the primary judge's finding that it was not necessary for IAA to make a finding of fact as to the appellant's actual reason for going to India (at [38] of the judgment). It was sufficient that the IAA explained why it did not accept the appellant's claim. 30 For these reasons, ground 1 is rejected. 31 (b) Ground 2: The appellant contends that the IAA did not consider the appellant's claims cumulatively in determining whether or not he had a well-founded fear of persecution. The appellant contends that the primary judge erred in not finding this was a jurisdictional error. 32 I reject this ground. No appealable error has been shown concerning the primary judge's finding at [40] of the reasons for judgment that the IAA's reference to having considered the totality of the appellant's circumstances (at [63] of its reasons) is to the same effect as having considered the claims cumulatively. 33 The IAA confirmed that it had undertaken a cumulative assessment of the appellant's claims and circumstances in various parts of the reasons for decision. For example, at [62], the IAA explicitly stated that it had considered "all the circumstances" in finding that there was not a real chance that the appellant would face serious harm on the basis that he was a "failed asylum seeker, returnee, any actual, imputed or suspected political profile, or for any other reason related to this aspect of his claims". At [67], the IAA accepted that while the appellant may face a degree of societal discrimination on the basis of his ethnicity, there was no suggestion that the discrimination would amount to the death penalty, arbitrary deprivation of life or torture when considering the information before it "singularly or cumulatively". Similarly, at [68] the IAA found that any brief detention or questioning of the appellant would not constitute significant harm whether considered "singularly or cumulatively". 34 Ground 2 is rejected. 35 (c) Ground 3: As the Minister correctly submitted, the contentions raised by this ground were not run below and leave is required. 36 For reasons which appear immediately below, the proposed ground lacks merit and leave should be refused (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48]). Even if such leave were granted, the ground would have to be rejected for the same reasons. 37 First, I accept the Minister's submissions that there is no material before the Court that shows the claim that the situation in Sri Lanka was "fluid", including the possibility of heightening discrimination against returning Tamils, was expressly articulated to the delegate or IAA or that the material arose before the IAA such that it should have been considered (see NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [13]). There was also country information to support the IAA's findings at [53] and [54] of its reasons concerning the diminishing presence of the EPDP and the reformist agenda of the Sri Lankan government. 38 Secondly, the appellant's claim that the IAA erred in its construction of "intentionally inflicted" for the purposes of the definition of "cruel or inhuman treatment or punishment" as defined in s 5(1) of the Act must be rejected in the light of the High Court's recent decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936; 347 ALR 275. 39 I would refuse leave to raise ground 3. Conclusion 40 For these reasons, the appeal will be dismissed and the appellant ordered to pay the Minister's costs, as agreed or assessed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
CVJ16
Minister for Immigration and Border Protection
[1994] FCA 1253
[1994] FCA 301
(1997) 191 CLR 559
(1995) 57 FCR 451
(2005) 147 FCR 51
(1996) 185 CLR 259