Federal Court of Australia

EMZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1052

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal by EMZ18 from an order made by the Federal Circuit and Family Court of Australia (the Federal Circuit Court) (EMZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 9). The Federal Circuit Court made an order that the appellant’s amended application for judicial review filed on 15 June 2020 be dismissed.

2    The background to this matter was described by the Immigration Assessment Authority (the IAA) in the following way. The appellant is a citizen of Sri Lanka and he claimed to be a Tamil Hindu born in the Northern Province. He left Sri Lanka and arrived in Australia in November/December 2012. On 15 June 2017, he lodged an application for a Safe Haven Enterprise visa. In essence, his claims were based on his association with his LTTE brother-in-law who was killed in 2007 because he harboured LTTE weapons and the appellant’s subsequent interrogation about that matter, and the appellant’s recently diagnosed schizophrenia and the harm he faces upon return as a result of that condition.

3    On 27 June 2018, a delegate of the Minister refused the application on the basis that he was not satisfied that the appellant faced a real chance of persecution (s 36(2)(a) of the Migration Act 1958 (Cth) (the Act)) or a real risk of significant harm (s 36(2)(aa) of the Act) upon return to Sri Lanka. The delegate’s decision was referred to the IAA for review.

4    On 15 August 2018, the IAA affirmed the delegate’s decision not to grant the appellant a protection visa. The appellant brought an application for judicial review in the Federal Circuit Court. In his amended application for judicial review filed on 15 June 2020, the appellant raised four grounds in support of his application.

The Decision of the IAA

5    The IAA addressed the appellant’s claim for refugee status (s 36(2)) and for complementary protection (s 36(2)(aa)).

6    The definition of refugee is set out in s 5H of the Act. In the case of the appellant, who is a citizen of Sri Lanka, he claims that he is a refugee because he is outside Sri Lanka and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. His case is that he has a well-founded fear of persecution because he fears being persecuted for reasons of his membership of a social group, being persons who suffer from a severe mental illness, and there is a real chance that if returned to Sri Lanka, he would be persecuted for that reason. The appellant claims the real chance of persecution relates to all areas of Sri Lanka. He must establish (and claims he has) that the persecution involves serious harm to him and systematic and discriminatory conduct. The IAA rejected the appellant’s claim insofar as it related to his connection with his brother-in-law or past questioning and that aspect of its decision was not challenged in the appellant’s amended application for judicial review. For reasons I will give, it is not necessary to refer to the provisions dealing with complementary protection.

7    The claims the appellant made concerning his mental illness were summarised by the IAA as follows:

•    He is a single Tamil Hindu who was born in Jaffna and lived in Vavuniya and Colombo. He worked as a mason. He suffers from schizophrenia, diagnosed in early 2017.

…

•    He suffers serious mental health problems and sees a psychologist fortnightly and is on intramuscular and oral medication. Without the medication he suffers from severe psychotic episodes and hallucinations and has been hospitalised twice. Without the medication his condition will worsen. He fears being ostracised by society and unable to access the care he needs. He fears when interrogated he will not be able to respond satisfactorily due to his mental health problems, defend himself against accusations and will be detained and tortured. Due to his mental health issues he finds it extremely difficult to work and he would be dependent upon his family.

…

•    It was submitted the applicant will be unable to access medical treatment because it is plagued by poor funding, scarcity of resources, highly stigmatised. A report by psychiatrist found in a sample of persons with mental illness all had experienced harm from inability to access care, social exclusion, derogatory insults and throwing of rocks. Social stigma and lack of awareness of available treatment options prevent many from accessing medical help. There was a lack of available services and community based services were on an adhoc basis. It was submitted the applicant has consistently reported to deny having a mental illness and is unlikely to voluntarily seek assistance. In a rural area his condition will be dismissed as religious phenomenon and he will not receive support and care needed, particularly since his condition was not diagnosed until 2017. It was submitted psychiatrists are scarce and the medication the applicant is prescribed is unavailable in Sri Lanka. It was submitted without the medication his condition deteriorates with hallucinations and has led him to behave violently. It was submitted that the harm the applicant will suffer as his medical condition deteriorates amounts to significant harm. Further, the social attitudes against people with a mental illness would impact on his ability to subsist as he would be unable to work, at risk of social ostracism, homelessness, physical harm and destitution. It was submitted to return the applicant to Sri Lanka in light of his mental health problems would be to return him to inhuman and degrading treatment or punishment.

•    It was submitted the government’s failure to provide adequate mental health services amounts to a knowing omission and it is appropriate to infer an intention to inflict pain or suffering. It was submitted the harm the applicant faces arises from the specific lack of access to mental health services and two specific drugs, both of which are unavailable in the rural dominated area of Batticaloa which are necessary to prevent him from suffering severe pain and harm.

8    The IAA accepted that the appellant suffers from schizophrenia and that that mental illness requires treatment and that in the past, that had included two hospitalisations in 2017. The IAA found that the appellant had only superficial insight into his illness upon discharge from the Lyell McEwin Hospital in 2017. The IAA found that the appellant currently receives three medications and some community support which is needed to maintain good mental health and good functionality in the community. The IAA noted that the medical discharge summary prepared upon the appellant’s discharge from the Lyell McEwin Hospital indicated that the appellant’s mental health was exacerbated by alcohol and drug use and a referral was made regarding education concerning that matter. Furthermore, the IAA noted that the discharge plan in the medical discharge summary indicated that there was a need to improve the appellant’s English literacy and communication skills and to do that with a view to the appellant independently managing his own illness.

9    The IAA considered the country information in the material referred to it. The IAA did not accept that the appellant faced harm or targeting by authorities or others due to his mental illness. It acknowledged that mental health services in Sri Lanka may not be to the Australian standard and that they may be scarce. The IAA said that the country information supported the conclusion that since the appellant’s departure, the Sri Lankan government was addressing this and increasing services, including the provision of services in the north and east.

10    The IAA noted that in May 2014, the World Health Organisation reported that hospitals in Sri Lanka were generally well staffed and equipped to meet the growing curative health demands of the community and that the expansion of mental health services is a priority in the Ministry of Health, particularly those in post-conflict areas. A statement by the Director of Mental Health was to the effect that they had set up mental health clinics in all districts to identify patients who may have mental illnesses, including schizophrenia, and they have now trained medical officers to identify and treat patients under the supervision of consultant psychiatrists. Further, the IAA noted that there is universal free health care and that the Sri Lankan State Pharmaceutical Corporation provides medication for schizophrenia.

11    The IAA also noted that according to a report of the World Health Organisation in 2017 titled “Decentralizing provision of mental health care in Sri Lanka”, Sri Lanka’s mental health policy 2005–2015 called for implementation of comprehensive community bases and decentralised service structure. The report noted significant improvements had been made with new cadres of mental health workers, trained medical officers (mental health), a doctor program that requires a mandatory placement in a district hospital and medical officers (mental health) focal points to assist provincial government services. The report noted that there had been an increase in domiciliary care, mental health promotion in schools and community health education. Community psychiatric nurses have also been trained and deployed who administer depot medications under medical advice and provide mental health education. A number of mental health volunteers (4,367) also support care and raising mental health literacy in the community. There are 80 organisations island wide in all 25 districts. It noted that typically ongoing care is provided via a multidisciplinary team of medical officer, psychiatric nurse and social worker. The report also noted that despite these achievements, more improvements were needed and would be targeted in the new mental health policy for 2017–2026. The report also noted that delay in recognising the illness and seeking treatment was common due to stigma.

12    The IAA considered that the country information indicated that there had been significant improvements in mental health provision and access and education and that these improvements continue. It acknowledged that the country information indicated that there may be a shortage of psychiatrists, but said that training had increased and additional support is provided from increased training, numbers and deployment of medical officers (mental health), psychiatric nurses and multidisciplinary teams to assist in care and education. Again, the IAA noted that while the standards may not be the same as they are in Australia and resources more limited, particularly in rural areas, the country information does not support the proposition that the appellant would be denied services or unable to access services for any of the reasons in s 5J(1) of the Act.

13    The IAA noted a reference by the appellant’s representative to a sample survey of mentally ill persons who said they had all been harmed in some way such as by being unable to access services, being the subject of derogatory insults, being ostracised or having rocks thrown.

14    The country information before the IAA included “roar.media” articles which also referred to the stigma associated with mental illness in Sri Lanka, but at the same time, noted that in 2016, a Footsteps to Freedom walk was planned across the country to spread awareness of mental health and combat and find freedom from stigma and shame. The articles commented on the way two psychologists will conduct workshops for communities and the military schools and their accommodation was provided by the military. The articles noted that whilst existing services are poorly funded, that did not mean that they were lax. Health care workers in tertiary and psychiatric hospitals and other mental health facilities do their best to alleviate the burden of mental health problems.

15    The IAA accepted that, based on the country information, the appellant may face some social stigma due to his mental illness. It also noted that steps were being taken to reduce the stigma and increase awareness. The IAA accepted that the stigma of mental illness can lead to delay in diagnosis, but said that that did not affect the appellant because he had been diagnosed in Australia and is on medication. In the circumstances, he did not, therefore, face a delay in diagnosis. The IAA said that whilst it accepted that the appellant may face some social stigma such as name calling or some ostracisation, particularly when unwell, it did not accept that that amounted to serious harm. Furthermore, the IAA did not accept that the appellant would be unable to access services, or that he faces homelessness or serious harm. The IAA did accept that if the appellant was unmedicated, he will become unwell, in the sense of psychotic, and possibly aggressive which may require police assistance to take him to hospital. The IAA considered, however, that with medication compliance, the appellant can remain well. The IAA said that even if the appellant was to become unwell, it did not accept that he faced serious harm as Sri Lanka has inpatient treatment availability also.

16    The IAA said that it did not accept that the appellant faced a real chance of serious harm if he were to come in contact with police or authorities for his behaviour due to his mental illness. The appellant’s illness has been diagnosed and he has paperwork that explains his condition, behaviour when unwell and his medication. The IAA considered that this would assist the appellant if he did encounter police because of his behaviour or when unwell. In addition, the country information is to the effect that there are mental health care workers, doctors and organisations who can assist and continue to assist in management of persons with mental illnesses and education generally.

17    The IAA said that it had considered the submissions about the appellant being attacked generally because of behaviour due to his mental illness. It said that it considered that while medication compliant, the appellant can remain well. If he were to become unwell, the IAA considered that he would have the support of mental health care workers and organisations who could assist with his management, including his admission to hospital. The IAA did not accept that he faced a real chance of serious harm in this respect. Furthermore, the IAA did not accept that even if unwell, and therefore without the insight to seek treatment, the appellant could not access care in circumstances where he had the support of his family and doctors and health clinicians trained in identifying the illness and treating it.

18    With respect to medications, the IAA noted that two of the appellant’s current medications are not available in Sri Lanka. However, according to the Sri Lankan State Pharmaceutical Corporation, it has anti-psychotic medications for schizophrenia. In addition, country information referred to by the delegate indicated that unavailable specific medication may be obtained and requests made to purchase are assessed by the Ministry of Health. The IAA did not accept that the appellant could not obtain medication to treat his schizophrenia or access services.

19    The IAA accepted that the appellant may find work difficult if unwell. He had worked in Sri Lanka as a mason from 2005 until 2012. He has not worked in Australia. There was no medical evidence that he could not work and his medical discharge summary in May 2017 noted that his psychosis had “mostly resolved”. A letter from a Dr Alfred Kc Hoh of the Blakeview Medical Centre dated 29 January 2018 expressed the opinion that the appellant’s medication compliance was essential for him to maintain a good mental health plan and good functionality in society and he needed a good mental support network. The IAA noted that the appellant had the support of his family. He had confirmed that he was in regular contact with his sister and his mother. His parents and other married siblings also live in Sri Lanka. The appellant referred to an overseas uncle who provided assistance to his family. The IAA did not accept that the appellant’s capacity to subsist will be threatened.

20    The IAA expressed the conclusion that having considered the appellant’s circumstances and the country information, it did not accept that the appellant faced a real chance of persecution by reason of his mental illness.

21    The IAA essentially repeated its findings with respect to the appellant’s mental illness when considering the appellant’s claim for complementary protection pursuant to s 36(2)(aa) of the Act. There is one matter which the IAA explained in more detail in this context and that relates to what may occur if the appellant has contact with the police. In relation to that matter, the IAA said the following (at [86]):

I have considered the submissions regarding the applicant behaving aggressively or psychotically and therefore being arrested or coming into contact with police authorities in Sri Lanka. I am prepared to accept that this may occur in the future if not medication compliant, as it has occurred in Australia. I note in Australia it is not uncommon for police to be called when a psychotically ill person becomes aggressive. This is for the persons and other person’s safety. However, I do not accept that coming to the attention of police due to his behaviour, if unwell means he faces a real risk of significant harm. The applicant’s illness has now been diagnosed and he has paperwork that explains his condition, behaviour when unwell and his medication. I consider this will assist him if he does encounter police because of his behaviour or when unwell …

22    The IAA reached the conclusion that none of the social stigma and difficulties the appellant may face due to his mental illness, individually or cumulatively, amounted to significant harm within s 36(2)(aa) and s 36(2A) of the Act.

The Grounds of Judicial Review and the Decision of the Federal Circuit Court

23    The appellant’s first ground of judicial review before the Federal Circuit Court was that the IAA failed to conduct a review by failing to consider whether any law of Sri Lanka, that may lead to detention or other adverse action for reasons of the appellant being a member of a particular social group, namely, those with severe mental health issues, was “appropriate and adapted”, such that it did not amount to discrimination, qualifying as persecution within s 36(2)(a) of the Act.

24    There are eight particulars in this ground. Two forms of harm are referred to in the particulars and they are as follows: (1) action taken by the police or other authorities by way of detention or other adverse action against the appellant by reason of his behaviour whilst in a psychotic state or other state caused by his mental illness; and (2) adverse action against the appellant by the community by reason of the appellant’s behaviour caused by his mental illness and which the authorities take no action to prevent.

25    The appellant’s second ground of judicial review was that the IAA erred in considering whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group, being persons with severe mental health issues, by asking itself the wrong question, or failing to apply the correct test. It is alleged that the question whether the appellant could, would or should manage his condition was irrelevant to a consideration of whether the appellant faced a real chance of serious harm for reasons of his membership of a particular social group. The IAA failed to take into account the motivation and perception of the persecutors in relation to people with mental health issues. It failed to apply the correct test which was whether there was a real chance that the appellant would be persecuted for reasons of his membership of a particular social group of people suffering mental illness, such that it failed to exercise its jurisdiction.

26    The appellant’s third ground of judicial review was that the IAA failed to conduct a review according to law in that it engaged in an illogical and unreasonable reasoning process. In essence, the allegation made by the appellant is that the IAA made a number of findings without explaining the basis upon which it made those findings. The findings related to the availability of medication in Sri Lanka, the appellant’s ability to access services and accommodation in Sri Lanka, the appellant’s ability to access the support of mental health care workers and organisations, the appellant’s ability to obtain the support of his family, the appellant’s ability to remain medication compliant, how the possession of paperwork that explains his condition and behaviour would assist the appellant when he may be psychotic and the paperwork is in English, the failure by the IAA to address the risk the appellant would face serious harm from those who do not know that he suffered from a mental health condition, and the failure by the IAA to take into account the impact and the logistics of his transition from Australia to Sri Lanka.

27    The fourth ground of judicial review was that the IAA failed to conduct a review according to law by misapprehending the evidence presented to it. The particular complaint in this ground was that the IAA had erroneously found that the appellant had said during his arrival interview that he had never been arrested or detained by the Criminal Investigation Department or the police. This ground was rejected by the Federal Circuit Court and is not pursued in this Court.

28    The primary judge in the Federal Circuit Court began his reasons in relation to the first ground of review by outlining the appellant’s submissions and referring to Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 (Chen Shi Hai); and AJZ17 v Minister for Home Affairs [2019] FCA 1485 (AJZ17).

29    The primary judge said that the appellant had not put before the IAA evidence of laws in Sri Lanka which may lead to the appellant’s detention or other adverse action. The primary judge said that it was the appellant’s responsibility to put before the IAA all material relevant to his claims (at [21]). The IAA was under no statutory obligation to act as the appellant’s advocate, “or otherwise make out the applicant’s case by necessarily researching a plethora of Sri Lankan laws which might or might not be found to be discriminatory in operation toward the applicant” (at [22]). Furthermore, there was no obligation on the IAA acting reasonably to get and consider new information in this respect acting under s 473DC of the Act. It was the appellant’s responsibility to put forward evidence of a law of Sri Lanka which would have operated in a discriminatory way against him (at [23]).

30    The primary judge said that in the alternative, and even if the IAA has erred in failing to conduct its own research as to what law of Sri Lanka may have discriminated against the appellant, it could not be said that any such error was material having regard to the IAA’s finding that the appellant did not face a real chance of serious harm if he was to come into contact with the police or government authorities as a result of any of his behaviour caused by his mental illness (at [24]). In this context, the primary judge referred to the decision of the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. The primary judge said that furthermore, it could not be said that “no other rational or logical decision maker could not have made the same decision as the Authority” (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130], [131] and [135]).

31    The primary judge found that in other respects the IAA had addressed the appellant’s claims. The IAA referred to the fact that the appellant may face some social stigma due to his mental illness, but did not accept that that stigma and its consequences amounted to serious harm. The IAA was entitled to find that the appellant did not face a real chance of persecution if he returned to Sri Lanka.

32    The primary judge said that the decision in AJZ17 was distinguishable from the case before him. In that case, there was evidence that the legal system in Kenya did not recognise mental health disorders. That was not the position in the case before the IAA. There was evidence that as early as 2010, it was recorded that Sri Lanka’s progress in the mental health sector was commendable and that Sri Lanka had achieved a significant improvement in human resources, development and expansion of resources and facilities (at [29]).

33    The primary judge rejected Ground 1 of the application for judicial review.

34    The primary judge said that there was no merit in Ground 2. He said that in light of the findings of the IAA that there were mental health services available to the appellant in Sri Lanka and he had the ability to access anti-depressant and therapeutic drugs in Sri Lanka, there was no real chance that the appellant would be harmed or attacked by members of the community (at [32]).

35    As to the appellant’s third ground of judicial review, the primary judge held that there was no merit in the appellant’s allegation that the IAA engaged in a reasoning process that was illogical and unreasonable. The primary judge said that he agreed with the Minister’s statement of the relevant legal principles in his written submissions as follows (at [34]):

(a)    In relation to illogicality, the illogicality demonstrated must be extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one which reasonable minds may come to different conclusions.

(b)    Caution should be exercised when considering the rationality or logicality of a decision, as such arguments can “too readily be used to conceal what is in truth simply an attack of the merits” of a decision.

(c)    In relation to unreasonableness, a decision which lacks an evident and intelligible justification is unreasonable.

(d)    A decision which no reasonable person could have arrived at, or one which is arbitrary or capricious, is unreasonable.

(e)    However, a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ. Put differently, unreasonableness is not established simply because the Court would have taken a different view of the matter.

(f)    Emphatic disagreement with a factual finding does not demonstrate any unreasonableness.

(g)    The test for unreasonableness is “necessarily stringent”, “extremely confined” or requires something “in the realm of the extraordinary”.

(h)    In relation to country information, the choice and assessment of the weight to be given to such information are factual matters for decision-makers.

(Footnotes omitted.)

36    The primary judge also made the point that the IAA’s approach to country information was confined by the principles of legal reasonableness (at [36]).

37    There was no suggestion by the appellant that the primary judge’s statement of relevant principles was incorrect. In any event, his Honour’s statement of the relevant principles is correct.

38    The primary judge said that the hurdle for an appellant to overcome was a high one and it was not overcome in this case. The primary judge said that the IAA addressed the question of the availability of drugs able to be accessed by the appellant in Sri Lanka and noted that hospitals in Sri Lanka are generally well staffed and equipped to meet community health demands and that mental health service expansion was a priority of the Ministry of Health, particularly in post-conflict areas. The IAA found that there is universal free health care and the Sri Lankan State Pharmaceutical Corporation provided medication for schizophrenia. In the circumstances, the IAA’s findings were not illogical or unreasonable. They were based on reliable country information which dealt with the treatment of mental health issues in Sri Lanka. In addition, it was open to the IAA to find that the appellant would receive assistance from his family (at [35]–[36]).

39    Significantly, the primary judge said (at [36]):

… The Authority was entitled to rely upon such country information as it considered reliable, and was unfettered within the bounds of reasonableness as to how it treated such country information.

40    With respect to whether the appellant’s health would deteriorate because of his return to Sri Lanka, the primary judge said that s 36(2)(a) of the Act was concerned with persecution inflicted on the person by others, rather than suffering illness by reason of their return to their home country, referring to CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30]–[31] per Collier J.

41    The primary judge rejected Ground 4 of the application for judicial review and he held that the IAA was entitled to make the finding it did.

42    Finally, the primary judge said that the decision of the IAA could not be considered legally unreasonable, or as one without an evident and intelligible justification and, in this context, he referred to the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [66] and [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J (at [43]).

43    The primary judge rejected any challenge to the IAA’s rejection of the appellant’s claim to complementary protection. The appellant did not pursue any complaint in this Court about this aspect of the primary judge’s decision. In any event, it would fail because I do not consider that the IAA’s findings of fact involve jurisdictional error.

44    The primary judge held that the IAA had not committed a jurisdictional error and dismissed the amended application for judicial review.

The Grounds of Appeal

45    There are six grounds of appeal.

46    The appellant’s first ground of appeal is that the primary judge misapprehended Ground 1 of the amended application for judicial review and thereby asked himself the wrong question, or failed to ask himself the correct question, or adopted an incorrect test in respect of his consideration of the ground. The essence of this ground is contained in the following particular in the ground:

(d)    The Applicant’s statements and submissions to the IAA regarding his fear of treatment by the police or authorities for reasons of his mental health issues squarely raised claims before the IAA based on the implementation or enforcement of the general criminal law in Sri Lanka such that such laws would operate in a discriminatory way with respect to a person with a mental illness by not recognising, or having regard to, the impact of mental illness on behaviour.

47    The appellant’s second ground of appeal relies on the particulars in the first and is to the effect that the primary judge erred in finding that there was a requirement on the part of the appellant to show that a particular law of Sri Lanka would lead to persecution should the appellant’s application for a visa be refused.

48    The appellant’s third ground of appeal is that the primary judge erred in his application of the principles enunciated in AJZ17. The appellant alleges that the primary judge failed to analyse or consider whether Sri Lankan criminal laws would be implemented or enforced in a discriminatory manner with respect to persons with a mental illness such that the feared treatment would constitute discrimination.

49    The appellant’s fourth ground of appeal is that the primary judge failed to take into account relevant matters, by failing to address aspects of the appellant’s argument on review. There are three particulars in this ground of appeal.

50    The first particular in Ground 4(a) is that the primary judge failed to address the appellant’s submissions that it was unnecessary for him to specify any particular law of Sri Lanka that may be implemented or enforced in a discriminatory fashion against the appellant because his claim was clear that it related to his fear of treatment by the police or authorities for reasons of his mental health issues and it therefore follows that the relevant laws would be those of general criminal law in Sri Lanka that include powers to arrest and detain people. As I will explain, the primary judge did address this matter, but in my respectful opinion, he erred in his approach.

51    The second particular in Ground 4(b) is that the primary judge accepted the Minister’s submissions that s 36(2)(a) of the Act was concerned with persecution inflicted by others, rather than a person suffering illness by reason of their return to their home country, but failed to take into account or address the appellant’s submissions in response to the Minister’s submissions that the Minister had mischaracterised the appellant’s grounds, that the appellant’s grounds were, in fact, based on the conduct of others and that, therefore, the Minister’s submissions were to the effect of conceding the appellant’s Grounds 1 and 2. As I will explain, this particular is very similar to the complaint raised in Ground 5 of the appeal.

52    The third particular in Ground 4(c) is that the primary judge failed to address the appellant’s submissions that the IAA had “cherry-picked” passages from the country information to arrive at a number of its findings in circumstances where the passages, read in context, were not reasonably capable of supporting the IAA’s findings on factual matters critical to the proper application of the considerations relevant to the appellant’s claim and the criteria in s 36(2)(a) of the Act.

53    The appellant’s fifth ground of appeal is that the primary judge misapprehended Ground 2 of the application for judicial review in that he asked himself the wrong question, or failed to apply the correct test and thereby repeated the error made by the IAA. The appellant alleges that the primary judge held that the IAA had not erred in finding that he would not be harmed by the authorities because the IAA had had regard to the mental health services available to the appellant in Sri Lanka and the appellant’s access to medication. The appellant alleges that the primary judge failed to consider whether there was a real chance that the appellant would be persecuted for reasons of his membership of a particular social group which required consideration of the motivation for the persecution, being the link between the persecution itself and the reason for the persecution. As I have said, this ground and the second particular in Ground 4 are very similar.

54    The appellant’s sixth and final ground of appeal is to the effect that the primary judge erred in holding that the IAA did not act in a legally unreasonable way in its review of the appellant’s claims. In relation to the ground, the appellant again relies on his contention that the primary judge failed to address his submission that the IAA “cherry-picked” passages from the country information to arrive at a number of its findings, in circumstances where the passages, read in context, were not reasonably capable of supporting the IAA’s findings on factual matters critical to the proper application of the considerations relevant to the appellant’s claim and the criteria in s 36(2)(a) of the Act.

The Submissions of the Parties

55    The appellant claims that he fears being persecuted for reasons of membership of a particular social group, namely, persons with a severe mental illness. He claims that the persecution which he fears involves serious harm. First, he claims that laws of general application in Sri Lanka are not appropriate and adapted to address adequately the circumstances of the appellant and, in those circumstances, those general laws result in persecution. Secondly, the appellant claims that the persecution he fears involves serious harm to him from members of the general community in Sri Lanka. The general community in Sri Lanka would not understand the appellant’s mental illness and they would attribute his conduct to religious phenomena and the like, that is to say, demonic possession. The appellant will be mistreated.

56    The appellant claims that the IAA erred in finding that, not only could he receive adequate treatment to assist him, but that, in fact, he would receive such treatment. The appellant claims that the error made by the IAA was compounded by a misapplication of s 5J(3)(b) in that, in effect, the appellant was required to mask an immutable characteristic of himself, that is to say, his mental illness.

57    It is convenient at this point to note how the appellant presented his argument to this Court in his written and oral submissions because the Minister submitted that, when properly analysed, the appellant’s complaints start with complaints about the factual findings made by the IAA and that the findings were based on, and involved an assessment of, country information. The Minister submitted that it is well established that the choice of relevant country information and the weight to be accorded to it is a matter for the body which has the fact finding function (in this case, the IAA) and the Court cannot substitute its own view as to those matters (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11]–[13]). As I understand the Minister’s submissions, they were that if the IAA’s factual findings do not involve jurisdictional error, then the other issues identified by the appellant, such as those relating to the characterisation of laws of general application, do not arise. I will return to these submissions.

58    The appellant identified his case in his written submissions (at [19]) as being that if he fell into a psychotic or delusional state, he may attract the attention of the police or other authorities and, therefore, he may attract the operation of laws that may lead to his detention or other adverse action being taken against him. This may lead to harm or persecution at the hands of the police or authorities, or harm or persecution at the hands of others, which the authorities fail to prevent. The “laws” in this proposition are (on the appellant’s argument) laws of general application, being criminal laws which authorised arrest and detention (at [21], [25], 26] and [32]). The appellant submitted that the IAA had “cherry-picked” (to use his expression) from the country information to arrive at a number of its findings, both as a separate ground of challenge (at [40]) and as a matter “compounding and underpinning other errors” (at [8]).

59    The appellant’s counsel submitted to this Court that it was “simply not a realistic and feasible interpretation of the facts” that the appellant would be able to access adequate treatment and remain well in the community and not attract stigma and opprobrium in light of the following: (1) the limitations of the Sri Lanka health system; (2) the level of availability of drugs to treat the appellant’s mental illness; (3) the limited nature of the appellant’s insight into his conduct; (4) the lack of information as to available family support; and (5) the appellant’s lack of financial means.

60    The appellant referred to the relevant paragraphs in the IAA’s decision in relation to his claim for refugee status (paras 40 to 51) and in relation to his claim for complementary protection (paras 81 to 87). The appellant referred to various findings made by the IAA and accepted as correct by the primary judge, including first, the fact that there had been recent efforts made to raise the awareness in the community in Sri Lanka of mental health issues and to move away from characterising unusual behaviour as religious phenomena and the like, with the implicit benefit of not being ostracised by reason of that behaviour. Secondly, there has been an effort to increase the availability of mental health services by additional hospitals and clinics, additional clinicians and resources. Thirdly, the IAA was satisfied that the appellant would receive adequate medication by virtue of a publicly funded pharmaceutical corporation that obtains those medications.

61    The appellant submits that his complaint on appeal is that when the actual materials relied upon by the IAA to reach those conclusions are considered, they do not point to the conclusions reached by the IAA, but in fact, point to opposite conclusions. The appellant’s counsel said the following material illustrated what he described as the salient points.

62    The appellant began by taking the Court to a document which was published by the UK Border Agency and is titled “Sri Lanka: Country of Origin Information (COI) Report” dated 7 March 2012. The Court was referred to passages indicating that there can be difficulties in obtaining the correct drugs and particular drugs may be of substandard quality. A request can be made for drugs, but if the costs cannot be met by the government, then the individual must make a contribution. The appellant submits that that cuts across “the somewhat optimistic suggestion by the Immigration Assessment Authority that the relevant drugs could be obtained”. The appellant referred to the statement that nearly 60% of the rural population relies on traditional and natural medicine for primary health care and that hospitals can be subject to severe staff and clinical shortages. Counsel referred to passages which referred to the lack of hospital infrastructure, a requirement for 31 clinics, 13 health care centres and 13 hospitals in one district where there is, in fact, one clinic, 11 health care centres and one hospital. Counsel also referred to passages indicating a lack of psychiatrists. There is said to be 55 psychiatrists spread over a population of approximately 21 million people.

63    The appellant submits that the IAA “cherry-picked” information from the reports concerning publicly funded clinics, publicly funded doctors and publicly funded drugs. The appellant submits that the fact of the matter is that the public funds available to meet the needs of the population are inadequate and that that is underscored by the comment that 60% of the population still relies upon traditional medicine.

64    The appellant also referred to another part of the report dealing with the police force which suggests that the police force is predominantly staffed by Sinhalese Sri Lankans who speak Sinhalese, not English and not Tamil. That means, so the appellant contends, that there are difficulties then in the IAA’s conclusion that the police would be able to provide assistance to the appellant.

65    The appellant also referred to an article in the Sunday Observer which contains an interview with the chief psychiatrist or chief health officer of the Sri Lankan Ministry of Health. The chief health officer states that unfortunately, due to superstitions and cultural taboos, many families with patients suffering from schizophrenia are reluctant to seek medical advice until the disease has advanced. He also notes that if people with schizophrenia are not treated, they can become violent and even kill a person who they think is trying to persecute them. There is also a statement from the chief medical officer that the main obstacles are myths and wrong beliefs which still surround the whole subject of mental diseases:

It’s part of our culture as it is in most Asian cultures. Many people think that it’s a ‘devil’s disease’ which can be exorcised by kattadiya. By the time the patient is brought to us, this long delay and pre medical intervention would have often compounded the disease.

66    The appellant referred to the “roar.media” article dated 17 August 2016 and, in particular, comments to the effect that an astonishingly large number of people choose to attribute mental health illnesses to supernatural phenomena, such as evil spirits and black magic, and that some people conceal or completely deny the existence of mental health conditions altogether because of the humiliation and disgrace associated with these conditions. Later, there is a statement to the effect that only 20% of mental health sufferers receive treatment and that one of the main reasons for this is that treatment is usually available only in the cities. There is a scarcity of trained mental health professionals in the country. In addition, mental health care in Sri Lanka is poorly funded and relies heavily on tertiary care. The appellant also referred to an article in (2017) 6 WHO South-East Asia Journal of Public Health titled “Decentralizing provision of mental health care in Sri Lanka”. In that article, it is said that a total of 4,367 mental health volunteers are supporting care and raising mental health literacy in the community. Despite these important achievements, more improvements are needed to provide more timely intervention, combat myths and stigma, and further decentralise care provision. This article refers to major challenges comprising stigma and discrimination, delay in diagnosis and therefore treatment, the unavailability of health care at the primary level, lack of medications and the fact that demand for services outstrips their supply.

67    The appellant submits that the IAA engaged in “cherry-picking” and erred in concluding that the appellant would not suffer harm by reason of membership of a particular social group of persons with severe mental health illness, the appellant would not become sick because he had and would receive adequate treatment. The appellant submits that the evidence the IAA relied on to support that conclusion simply does not do that.

68    I will need to come back to this submission and the extent to which, should it be unsuccessful, it means the other arguments advanced by appellant must be rejected.

69    With this introduction as to the factual matters, counsel for the appellant then moved to the first complaint made by the appellant which is that the primary judge did not hold that the IAA had erred in not considering whether the laws of Sri Lanka were appropriate and adapted “to not operate in a discriminatory way against the applicant”. The appellant referred to Chen Shi Hai and AJZ17 as authority for the proposition that a law of general application can operate in a discriminatory way in relation to a particular person or group of persons because of characterisation of that person or group of persons. That discrimination may amount to persecution. The appellant notes that whether the different treatment constitutes persecution is to be determined by reference to the test formulated in Chen Shi Hai (at [29]):

Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.

70    The appellant submits that it is enough for him to point to the general criminal laws of Sri Lanka and that aspect of those laws which would empower a police officer encountering a person behaving in a disruptive, abusive, violent or threatening manner to arrest and detain that person. He submits that in this respect, there is a close analogy with the case of AJZ17. Another aspect of the appellant’s complaint that the IAA and the primary judge did not apply the correct test is that the appellant is a member of a particular social group and there is a real chance he will be persecuted by the community at large. Underlying this submission is a challenge to a factual finding by the IAA that not only could the appellant have received adequate treatment, but he would receive adequate treatment.

71    The appellant’s counsel then addressed the complaint he made that the IAA’s reasoning was legally unreasonable. Again, the appellant emphasised the importance of the IAA’s findings of fact and reiterated his submission that the IAA erred in its selection of reliable country information. The appellant’s counsel emphasised the following about him and his condition: (1) he is very ill and has little insight into his illness; (2) he has absconded in the past and is not always compliant in terms of taking his medication. In terms of mental health services, the IAA failed to place adequate weight on the fact that 60% of the population rely on traditional medicine, two of his three medications are not available in Sri Lanka, there is no express evidence that he would receive family support and the finding that he would carry his medical papers with him so that he could show them to the authorities if need be is illogical and unreasonable.

72    In response to the appellant’s submissions, the Minister submitted that the IAA made findings based on relevant country information that the appellant would be well, that he would be medication compliant and that even if he was not well and became aggressive and erratic and, in those circumstances encountered the police or other government authorities, all that would happen is that they would take him to hospital. The Minister submitted that once those findings are accepted, then no other finding about the disproportionate application of a general law or for reasons of membership of a particular social group can change the outcome of what the IAA found and that is that the appellant would not face a real chance of serious harm.

73    The Minister submitted that AJZ17 is distinguishable. The applicant in AJZ17 had severe schizophrenia and he came from Kenya and Kenya did not recognise mental illness. In this case, Sri Lanka does have a mental health infrastructure, it has psychiatrists, mental health nurses, support workers, volunteer workers. It has a State corporation that provides free pharmaceutical drugs that deals with mental health issues, including schizophrenia, and if there is a particular drug that is unavailable, there was infrastructure and a process in place in which a person could request that specific drug. In the circumstances, AJZ17 and the reasoning therein is not relevant. None of the appellant’s arguments can succeed once it was found that the appellant faced no real chance of serious harm. The Minister’s counsel put the matter in the following way:

All that would happen, based on the country information and the fact that the appellant has been diagnosed, has been medicated, and is going back to a country which recognises mental health, is that he would be taken to hospital and not abused or attacked or assaulted in any way.

74    The Minister submitted that the IAA has not “cherry-picked” the country information. As I have said, he submitted that the authorities establish that the choice of country information and the assessment of the weight to be placed on such information is a matter for the Tribunal (NAHI). A Court cannot substitute its own view of the material, even if it has a different view from that reached by the Tribunal. In addition to the country information already referred to, the Minister referred the Court to a document titled “Annual Health Bulletin 2013 Sri Lanka”, Medical Statistics Unit, Ministry of Health and Indigenous Medicine and submitted that a number of the IAA’s findings were based on information in this document. To invite the Court to take a different view of the IAA’s findings is to invite the Court to engage in merits review.

75    The Minister said there was no evidence that the section dealing with concealment was relevant (s 5J(3)(b)). The fact is that the appellant was diagnosed and he was taking his medication.

76    The Minister submitted that there was no dispute about the appellant’s membership of a particular social group because he has severe schizophrenia and that that was accepted by the IAA. The critical question was whether he would be harmed by police or authorities if he was unwell and perhaps aggressive and the answer to that question was no. The Minister submitted that once one accepts that finding and there is no jurisdictional error in that finding because it was based on country information and the appellant’s own evidence, then there is no error in the IAA’s decision and, therefore, no error in the primary judge’s judgment.

77    The appellant made two points in reply. First, he submitted that whilst it is true that the Court cannot engage in merits review, the IAA must act reasonably and it does not do so if it picks all the arguments in favour of a particular outcome and does not weigh and consider the evidence and information contrary to the outcome. Secondly, he submitted that the “Annual Health Bulletin 2013 Sri Lanka” contained a number of optimistic statements, but no reference to counter-balancing factors such as those referring to the stigma facing people with schizophrenia and issues facing the Sri Lankan health system.

Analysis

78    Grounds 1, 2, 3 and 4(a) raise a similar point and are conveniently dealt with together. The same may be said of Grounds 4(b) and 5 and then Grounds 4(c) and 6.

Grounds 1, 2, 3 and 4(a) of the Notice of appeal

79    It is convenient to start with an analysis of the decision in AJZ17.

80    The first ground of judicial review in AJZ17 was summarised by the Court as follows (at [26]):

… the Tribunal erred by failing to consider whether any law that led the appellant to be detained by the police or authorities as a result of actions caused by his mental illness was “appropriate and adapted”, such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Migration Act …

There is a close similarity between that ground and the first ground of judicial review in this case. The first ground of appeal in AJZ17 was as follows:

The Federal Circuit Court erred by failing to find that the Tribunal erred by failing to consider whether any law that led the appellant to be detained by the police or authorities as a result of actions caused by his mental illness was ‘appropriate and adapted’, such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth).

This ground, although differently expressed, is to similar effect to the first ground of appeal in this case.

81    In dealing with the first ground of appeal in AJZ17, Moshinsky J first addressed whether the submissions and statements made by AJZ17 squarely raised a claim based on the implementation of the general criminal laws of Kenya. The appellant in AJZ17 suffered from schizophrenia and psychosis. His Honour held that the substance of the submissions and statements was that the general criminal laws of Kenya would operate in a discriminatory way with respect to a person with a mental illness by not recognising, or having regard to, the impact of mental illness on their behaviour. Justice Moshinsky summarised the submissions and statements. They included submissions and statements by the appellant and his representatives to the effect that when he cannot control his behaviour, he will be punished and put in jail. In that context, it should be noted that in AJZ17, the position was that the laws of Kenya did not recognise mental health problems.

82    Having made those observations, his Honour turned to consider whether a law of general application may be implemented or enforced in a discriminatory fashion and amount to persecution. He answered that question in the affirmative. His Honour referred to the reasons of Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 and their Honour’s reference, in turn, to Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30; (2001) 206 CLR 323. His Honour also referred to the observations of Gaudron J in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [24]–[33] and, in particular, her Honour’s reference to what she described as the second aspect of discrimination being the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference.

83    Justice Moshinsky drew the following conclusions from his analysis of the authorities (at [44]):

It is apparent from the foregoing authorities that in certain circumstances the implementation or enforcement of a law of general application may amount to persecution within the meaning of s 5J(1)(a). Where this is alleged, a preliminary question is whether the law results in discriminatory treatment. That may be the case where the law treats people who are relevantly different in a manner that is not appropriate and adapted to that difference: Ibrahim at [29]. If there is discriminatory treatment, the next stage in the inquiry is to consider whether the treatment amounts to persecution. The relevant test is whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S at [43], citing Applicant A at 258.

84    His Honour then turned to consider the approach adopted by the Tribunal in the case before him and he identified two aspects of the Tribunal’s reasoning which were as follows:

(1)    the Tribunal found that any treatment the appellant would suffer from the authorities would be due to the fact that the authorities did not recognise mental illness and would not, therefore, be because they discriminate against people with mental illness.

His Honour concluded that this reasoning proceeded on an erroneous basis, that is to say, that discriminatory treatment only encompasses differential treatment, and does not encompass a failure to treat people who are relevantly different in a manner that is appropriate and adapted to that difference; and

(2)    the Tribunal focussed almost exclusively on the question of whether the feared treatment by the public, the police and the authorities would be “for reasons of” a Convention ground, namely membership of the particular social group of mentally ill persons in Kenya. The Tribunal took the view that because the authorities in Kenya did not recognise mental illness, the treatment would not be “for reasons of” a ground referred to in s 5J(1)(a) of the Act.

85    His Honour concluded that by reasoning in these two ways, the Tribunal did not give proper consideration to whether the criminal laws of Kenya would be implemented or enforced in a discriminatory manner with respect to people with a mental illness. The Tribunal did not analyse or consider properly whether or not the feared treatment would constitute discrimination and this was an essential and preliminary step in determining whether the treatment would constitute persecution for reasons of a ground referred in s 5J(1)(a).

86    His Honour upheld the first ground of appeal on the basis that the Tribunal asked itself the wrong question, or failed to ask itself the correct question, or adopted an incorrect test, and thus constructively failed to exercise its jurisdiction.

87    The issue of whether a law of general application is discriminatory arises where the alleged real chance of persecution relates to the application or enforcement of the law. The alleged persecution must involve serious harm to the person. If those circumstances arise, consideration must be given to whether the law of general application gives rise to discrimination and, following that, persecution. If, on the facts, there is no real chance of persecution involving serious harm, then an analysis of the law of general application and its nature is not necessary. It follows from what I have said that there is an initial or preliminary question of whether, on the facts, there is a real chance of serious harm. As I understand the appellant’s case, it is that his condition of schizophrenia means that he from time to time will, or may, act aggressively and erratically, particularly if unmedicated. He faces a real chance of serious harm at the hands of the police or other authorities by way of arrest and detention under the general criminal laws of Sri Lanka.

88    I have considered the material, including submissions put forward by the appellant to the delegate and then the IAA. Although at times interwoven with his claim based on an imputed political opinion, I consider that the appellant did raise a claim of a real chance of serious harm at the hands of the police or other authorities by way of arrest and detention under the general criminal laws of Sri Lanka due to his mental illness.

89    With respect, I consider the debate before the Federal Circuit Court in this case about whether the appellant had identified a particular law which discriminated against him was misconceived. Like the applicant in AJZ17, the appellant raised a claim based on the general criminal laws of Sri Lanka. However, the appellant’s case was rejected on the facts.

90    It is at this point that this case differs from AJZ17. In AJZ17, there was evidence of the harm the applicant would or might suffer if the applicant was apprehended by the police or other authorities for violent or aggressive behaviour under the general criminal laws of Kenya. The Tribunal in that case said that that evidence could not affect the circumstance that any harm suffered by the applicant was caused by his criminal behaviour, not his mental illness. That was held to be an error in approach and the matter was remitted to the Tribunal for determination according to law.

91    This case is different from AJZ17 because of the findings of fact made by the IAA. There is a challenge to those findings which I deal with in the context of the grounds which follow. The factual finding made by the IAA was that should the appellant become unwell and encounter the police, he will not face a real risk of serious harm (see [16] and [21] above). That means that the appellant will not face discrimination as a result of the application or enforcement of the ordinary or general criminal laws of Sri Lanka.

92    The other aspect of the appellant’s case based on his mental illness is that he will face discrimination sufficient to constitute persecution by reason of the conduct of the members of the general community with whom he comes into contact. Again, this claim is met and defeated by a finding of fact of the IAA which is also one of the findings of fact which is challenged. Again, that challenge is dealt with in the context of the grounds which follow. The finding made by the IAA was that whilst the appellant may face some social stigma, such as name calling or some ostracisation, particularly when unwell, it did not accept that that amounts to serious harm (see [15] above).

93    The primary judge in the Federal Circuit Court erred in reasoning that the appellant’s submissions failed because the appellant did not identify a law which discriminated against him. However, he reached a similar result as I have by a different route holding that any error was not material because of the IAA’s finding that the appellant did not face a real chance of harm if he was to come into contact with police or government authorities as a result of any of his behaviour caused by his mental illness.

94    For the reasons I have given, Grounds 1, 2, 3 and 4(a) must be rejected unless the appellant’s challenge to the IAA’s factual findings is successful. As I will explain, I reject that challenge.

Grounds 4(b) and 5 of the Notice of appeal

95    The appellant submitted that the IAA erred because it focused on the appellant’s behaviour and not on the behaviour of his likely or possible “persecutors”. The IAA focused on what the appellant could do to remain well, such as to take his medication, rather than the conduct of his persecutors. He referred to, among other cases, Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568 which certainly refers to the significance in the statutory definition of the alleged motivations of the persecutors.

96    The short answer to these grounds is that the IAA did consider the conduct of the alleged persecutors. It did consider the potential conduct of the police and other authorities should the appellant come in contact with them during a psychotic episode and it did consider the stigma attached to mental illness and how the appellant might be treated in the community. There was no concession by the Minister as the appellant asserted. If the Minister had been correct in the way in which he characterised the appellant’s argument, then the appellant would have failed. The Minister’s characterisation of the appellant’s argument did not mean that he accepted that the IAA had not considered the conduct of others. Plainly, as I have said, the IAA did consider the conduct of others. These grounds of appeal fail.

Grounds 4(c) and 6 of the Notice of appeal

97    The arguments advanced by the appellant as articulated in these grounds of appeal are that the primary judge failed to address or to hold that there were errors in the IAA’s approach. First, the primary judge failed to address the appellant’s submissions that the IAA “cherry-picked” passages from the country information to arrive at a number of its findings in circumstances where the passages read in context were not reasonably capable of supporting the IAA’s findings on factual matters critical to the proper application of the considerations relevant to the appellant’s claim and the criteria pursuant to s 36(2)(a) of the Act. Secondly, this failure by the primary judge led to an error by him in holding that the IAA did not act in a legally unreasonable way in its review of the appellant’s claims.

98    As I have said, there is no complaint about the primary judge’s statement of the relevant legal principles. The Court does not review the merits of a case on an application for judicial review and, generally speaking, it is for the administrative body, in this case the IAA, to select the country information it relies on and to decide the weight it will place on various pieces of country information. However, there will be a jurisdictional error where the IAA’s approach is unreasonable in the sense of illogical or irrational. This is a high hurdle for a party challenging a decision to overcome and where, as is often the case, the information is of a general nature and relates to different points in time, the IAA may be required to make a broad assessment of the country information.

99    It is important to begin by noting precisely how the appellant put his arguments on these grounds in his oral submissions to this Court. Clearly, it is not for this Court to read all the country information and ask itself what decision it would reach. The starting point is the errors the appellant identifies and, in this case, the appellant did that in his oral submissions when he made his salient points. The submissions are summarised above (at [61]–[66]).

100    The supplementary court book contains the 10 publications which are the country information. Eight of those 10 publications were referred to by the IAA. Two publications were not referred to by the IAA, but no complaint is or can be made about that fact. The first publication (Human Rights Watch, “Improving Civilian Protection in Sri Lanka — Recommendations for the Government and the LTTE”, September 2006) and, if relevant, relates to the appellant’s claim based on an imputed political opinion, a claim which is not in issue in this Court. The sixth publication (Perera, Jehan, “Bringing Focus Back to National Security”, The National Peace Council of Sri Lanka, 4 April 2016) also relates to the appellant’s claim based on the imputed political opinion.

101    The second publication is the report of the UK Border Agency which was a publication counsel for the appellant referred to in his oral submissions. I have summarised the matters in this publication to which counsel for the appellant referred (at [62]–[64]).

102    The IAA referred to this publication in at least two parts of its reasons (see IAA’s reasons at [50] and [84]). The IAA said that the country information referred to by the delegate indicated that unavailable specific medication may be obtained and a request to purchase assessed by the Ministry of Health. The IAA said that it did not accept that the appellant could not obtain medication to treat his schizophrenia.

103    The fifth publication is the article in the Sunday Observer newspaper dated 19 October 2014 and titled “Schizophrenia — treatable with early detection” which was a publication counsel for the appellant referred to in his oral submissions. Again, I have summarised the matters in this publication to which counsel for the appellant referred (at [65]).

104    The IAA referred to this publication in its reasons (see IAA’s reasons at [41]) in the context of another publication to the effect that hospitals in Sri Lanka are generally well staffed and equipped to meet the growing curative health demands of the community and that the expansion of mental health services is a priority of the Ministry of Health, particularly those in post-conflict areas. The IAA refers to the Director’s comments to the effect that the public authorities had set up mental health clinics in all districts to identify patients who may have mental diseases, including schizophrenia, and they have now trained medical officers to identify and treat patients under the supervision of consultant psychiatrists. The IAA also notes that there is universal free health care and that the Sri Lankan State Pharmaceutical Corporation provides medication for schizophrenia. The IAA also referred to the fifth publication in the context of its consideration of complementary protection (see IAA’s reasons at [83]).

105    The seventh publication is the article in roar.media on 17 August 2016 titled “Tackling Mental Health in Sri Lanka: Fact vs. Stigma” which is a publication counsel for the appellant referred to in his oral submissions and it is referred to above (at [66]). The article features a psychologist and refers to information provided by the psychologist of a “Footsteps to Freedom” walk which have the purpose of spreading awareness of mental health to combat and find freedom from the stigma and shame that surrounds mental illness in Sri Lanka. The appellant acknowledges those matters, but refers to the statement in the article to the effect that an astonishingly large number of people choose to attribute mental illness to supernatural phenomena, such as evil spirits and black magic, and that some people conceal or completely deny the existence of mental health conditions altogether because of the humiliation and disgrace associated with these conditions. The article goes on to state that the individuals who are diagnosed with psychological disorders, not only face ridicule and rejection by their families and communities, but they also fail to receive the support and encouragement they need in order to get better. The appellant referred to a statement attributed to the National Institute of Mental Health in Angoda to the effect that only 20% of mental health sufferers receive treatment and that one of the main reasons for this circumstance is that treatment is usually only available in cities. There is a scarcity of trained mental health professionals in the country and, in addition, it is said that mental health care in Sri Lanka is poorly funded and relies heavily on tertiary care.

106    The IAA referred to this publication in its reasons (see IAA’s reasons at [44]). I have already summarised what the IAA derived from the article (see above at [14]).

107    The eighth publication is an article in (2017) 6 WHO South-East Asia Journal of Public Health titled “Decentralizing provision of mental health care in Sri Lanka”. Again, this is an article referred to by counsel for the appellant in his oral submissions. The matters identified by counsel are set out above (at [66]).

108    The IAA referred to this publication. It said the following (at [42]):

According to WHO 2017 report titled “Decentralizing provision of mental health care in Sri Lanka”, Sri Lankan’s mental health policy 2005 – 2015 called for implementation of comprehensive community bases, decentralised service structure. The report noted significant improvements have been made with new cadres of mental health workers, trained medical officers (mental health), a doctor program that requires a mandatory placement in a district hospital and medical officers (mental health) focal points to assist provincial government services. There has also been an increase in domiciliary care, mental health promotion in schools and community health education. Community psychiatric nurses have also been trained and deployed who administer depot medications under medical advice and provide mental health education. 4367 mental health volunteers also support care and raising mental health literacy in the community. There are 80 organisations island wide, in all 25 districts. It noted typically ongoing care is provided via a multidisciplinary team of medical officer, psychiatric nurse and social worker. The report noted despite these achievements more improvements were needed and would be targeted in the new mental health policy for 2017 – 2026. It also noted that delay in recognising the illness and seeking treatment was common due to stigma.

(Footnote omitted.)

109    The IAA referred to the third publication by the Medical Statistics Unit, Ministry of Health and Indigenous Medicine in 2013 titled “Annual Health Bulletin 2013”. It did so in the context of a finding (see IAA’s reasons at [41]) to the effect that whilst services for mental illness may not be to the Australian standard and are scarce, it was evident that since the appellant’s departure from Sri Lanka in November/December, the Sri Lankan government was addressing this and increasing the services, including the provision of services in the north and east. It was in that context that the IAA also referred to the fourth publication by the World Health Organisation in May 2014 “Country Cooperation Strategy at a glance Sri Lanka”.

110    The IAA referred to the ninth and tenth publications being publications by the Australian Government titled “DFAT Country Information Report, Sri Lanka” 24 January 2017 and “DFAT Country Information Report, Sri Lanka” 23 May 2018 (see IAA’s reasons at [4] and [12]).

111    Having reviewed the material in light of the findings of the IAA and the submissions of the parties, I do not consider that the IAA failed to consider all of the available country information or merely selected the material which favoured the conclusions it ultimately reached. I do not consider that the reasoning of the IAA was illogical or irrational. I reject the arguments put by the appellant in his oral submissions.

112    There was another thread to the appellant’s arguments. In his Notice of appeal and his written outline of submissions, the appellant sought to incorporate by reference the appellant’s consolidated written outline of submissions before the Federal Circuit Court. Those submissions were not in the appeal books. Such an approach is not appropriate given the page limit for a written outline of submissions and the fact that counsel for the appellant had a full opportunity to develop his submissions in oral argument. Nevertheless, I have obtained these submissions and considered them.

113    Insofar as the appellant seeks to put the arguments in the way in which he appears to have put them in the Court below by purporting to incorporate paras 83 to 104 of his consolidated written outline of submissions, I reject those arguments. In my opinion, the matters identified in Ground 3 in the Court below have been addressed by the primary judge. His Honour addressed the arguments about the availability of medicine, the availability of services, the availability of mental health care workers and organisations, and the support of family members in [35] and [36] of his reasons. As far as the issue of medication compliance is concerned, there appears to have been no suggestion that the appellant had any intention not to take his medication. With respect to people unaware of his medical condition and reacting to his behaviour, there is no evidence about this potential group. The IAA addressed those in the community who know he has a mental illness and the police and other authorities who, one may assume, would respond if the appellant behaved in a violent or aggressive fashion. With respect to the appellant’s possible contact with the police or other authorities, the primary judge dealt with this matter in [24] of his reasons and considered that it was open to the IAA to find that the appellant did not face a real chance of serious harm if he was to come into contact with police or government authorities as a result of any of his behaviour caused by his mental illness. Finally, as to the lack of evidence of any difficulties in transitioning from Australia to Sri Lanka, I agree with the submission made by the Minister to the effect that the argument appears to be based on speculation (see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 575).

114    In my opinion, Grounds 4(c) and 6 must be rejected.

Conclusion

115    I reject all of the grounds of appeal and, in those circumstances, the appeal must be dismissed.

Associate:    

Dated:    8 September 2023