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.