SZVED v Minister for Immigration

[2016] FCCA 801

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVED v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 801

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal did not take into account relevant considerations – whether Tribunal misapplied test for relocation – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 429A, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437

Applicant: SZVED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2680 of 2014

Judgment of: Judge Nicholls

Hearing date: 18 March 2016

Date of Last Submission: 18 March 2016

Delivered at: Sydney

Delivered on: 18 March 2016

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 26 September 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2680 of 2014

SZVED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 September 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 3 September 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and a supplementary bundle of relevant documents (“Supplementary Court Book” – “SCB”).

2. The applicant is a citizen of India who arrived in Australia on 29 November 2010 on a Transit (Subclass 771) visa (CB 4 and CB 42.8). The applicant applied for a protection visa, lodged on 6 December 2010 (CB 1 to CB 17 and see further CB 42.9). The applicant provided a written statement in support of his application.

3. The applicant claimed to be a Catholic Christian and to fear harm on return to India from various Hindu extremists, political parties and Hindu groups because of his Christian preaching and past membership of the Indian Youth Congress.

4. The Minister’s delegate refused the application for a protection visa on 16 March 2011 (CB 42 to CB 50). Before the delegate, the applicant claimed that his “colleagues have suppressed his political opinions” and that the authorities had “attacked him because of his religious activities” (CB 46.5). Essentially, the delegate could not be satisfied that the applicant’s fear of harm was well founded (CB 50).

5. The applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal, as differently constituted, affirmed the delegate’s decision on 22 August 2012 (SCB 47). The applicant sought judicial review by this Court and the matter was remitted to the Tribunal for consideration on 5 February 2013 because a legal error had been found (CB 51).

6. The applicant provided a “supporting statement” and a number of documents to the Tribunal (as constituted for the current matter) on 8 July 2013 (CB 54 to CB 117). The applicant attended a second hearing before the Tribunal on 13 January 2014 (CB 120 to CB 122), a resumption of the hearing on 13 March 2014 (CB 141 to CB 143) and a further resumption on 11 August 2014 (CB 146 to CB 148). The applicant provided further supporting documents to the Tribunal (CB 127 to CB 140).

7. The Tribunal affirmed the delegate’s decision on 3 September 2014 (CB 150 to CB 163). The applicant’s claims were set out by the Tribunal, and can be summarised as follows (see [23] – [26] at CB 155).  The applicant claimed to be an active member of the Kerala Catholic Youth Movement (“KCYM”) who cared for the poor and disadvantaged. He said he organised functions to support this work. The applicant wished to change the conditions in his hometown and joined the Indian Youth Congress (“IYC”). The applicant further claimed that ([23] at CB 155):

   “One night in October 2006 he slept in his office and when he was [woken] up he was surrounded by some people and a prostitute he did not know.  This was done by the politicians to damage his political image and he was suspended from the office and expelled from the party.”

8. The applicant claimed that he joined an evangelical fellowship and began preaching in Kerala and other states. This attracted the attention of the political parties, Bharatiya Janata Party (“BJP”) and Rashtiya Swayamsevak Sangh (“RSS”), who wanted to “destroy the fellowship”. They used the authorities to achieve this. The applicant claimed to have been beaten and further threatened by members of those parties in October 2009 due to his preaching activities. The applicant claimed that the police did not assist him ([24] at CB 155). 

9. The applicant claimed that he was attacked by Hindus in March 2010 and that the police detained him, and other Christians, for three days. The applicant claimed that the police beat him. On the applicant’s release he “hid” in a church overnight ([25] at CB 155). The applicant claimed that he had to seek “treatment” and that during his treatment, 10 to 15 BJP activists came to his house looking for him. The activists destroyed his house, injured his family members, and threatened the applicant. The applicant claimed that for this reason he left his hometown, went to stay with a friend, and believed he was followed on a few occasions ([26] at CB 155).

10. The Tribunal had regard to country information before it ([28] at CB 156 to [35] at CB 159). It noted that the applicant stated that he did not have any fear of harm arising from his political past and “relating to his involvement with the Congress”. The Tribunal accepted that the incident with the prostitute was as the applicant had described. However, based on the applicant’s evidence as a whole, and country information before it, it found that there was not a real chance that the applicant would face persecution in the reasonably foreseeable future ([39] at CB 159), nor that he would suffer significant harm for this reason ([40] at CB 159).

11. The Tribunal had “some doubts” about the applicant’s religious claims but found him, at the hearing, to be a “generally credible witness” who presented his claims in a “consistent and reasonably detailed” manner ([41] at CB 159 to CB 160). The Tribunal found that his relevant claims were consistent with the country information before it ([41] at CB 159).

12. The Tribunal accepted that the applicant was a Catholic Christian, joined the KCYM, helped the poor, went to the “Divine Retreat Centre” and then joined an evangelical fellowship ([42] at CB 160).

13. However, the Tribunal found the applicant’s answers, with regard to how he had or would perform a leadership role in his evangelical group, to be very “vague”. The Tribunal found the applicant’s explanation that he “would spread the Word of Jesus by reading the Bible but he was not trying to convert people” to be “fundamentally inconsistent”. The Tribunal found that the applicant did not display any ability to evangelise ([43] at CB 160). The Tribunal found ([43] at CB 160):

    “…I do not accept that the applicant had a leadership role in this group as he claimed, though I am prepared to accept that he was a member of a group of evangelical Catholics who attended events throughout Kerala and in other states and that he played some role in Bible readings.”

14. The Tribunal accepted that the applicant’s car was stopped by some Hindu extremists, that this was due to their “converting activities”, that the applicant was beaten and threatened, that the applicant underwent Ayurvedic treatment, and that he complained to the police, who did not assist him ([44] at CB 160).

15. The Tribunal accepted that the applicant was attacked at a convention by angry Hindus in March 2010, that the police arrived and detained the Christians, that the applicant was detained for three days and then hid in a church for one night and then returned home ([45] at CB 160).  The Tribunal accepted that Hindu activists came to his house, destroyed his belongings, hurt his family and threatened him. The Tribunal accepted that the applicant went to Kochin, was followed on a “number of occasions”, and that since his departure from India, his family had received threatening calls in relation to him ([46] at CB 160).

16. The Tribunal found ([47] at CB 160 to CB 161):

    “On the basis of the past interest in him in Kerala, I accept that, now and in the reasonably foreseeable future, the applicant faces a real chance of persecution for reasons of his religion at the hands of Hindu extremist groups in his home state of Kerala.  I also find that that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm in his home state on his basis.  However, I find that the applicant’s fear of harm is localised to this state.”

17. The Tribunal went on to find that, although the applicant faced a real chance of persecution and a real risk of significant harm in his home state, that this would not be the case in the state of Tamil Nadu ([48] at CB 161).

18. The Tribunal found ([50] at CB 161):

    “Given the vast number of people in Tamil Nadu and the large number of Christians, I do not accept that Hindu extremists from his home state would be able to locate the applicant in Tamil Nadu.  I have also taken into account that at my hearing, the applicant stated that in 2010 he had gone to Madras (Chennai) which is in Tamil Nadu but that nothing happened to him whilst he was there.  Further, given that the applicant has not been in India for a substantial period (now over 3.5 years) and given my findings that he was not involved in a leadership role in the evangelical fellowship, I do not accept that there is a real chance or real risk that Hindu extremists associated with the BJP or RSS would be motivated to pursue him to another state.  Whilst I accept that the Karnataka police on one occasion detained and mistreated the applicant, they released him and the applicant has not claimed that the Indian police showed any further adverse interest in him.  I do not accept that the Indian police have any ongoing adverse interest in him and the country information considered as a whole does not support that he would be targeted there by them for his evangelical Christian activities.”

19. The Tribunal noted that when this country information was put to the applicant, he responded by stating that the BJP and the RSS were “strong parties” who would target and kill him ([52] at CB 162). The Tribunal accepted that the BJP and the RSS were active in Tamil Nadu and that there were some reports of mistreatment. However, the Tribunal found that the “overall” country information did not indicate that the Christians in Tamil Nadu were targeted by anyone on more than an “infrequent basis” and found that the applicant could practice his Christianity in an evangelical manner without facing a real chance of persecution or a real risk of serious harm ([51] at CB 162).

20. The Tribunal set out a number of factors that “strongly” indicated that it would be reasonable for the applicant to relocate to Tamil Nadu ([54] at CB 162). The Tribunal concluded ([55] at CB 163):

    “Considering all of his individual circumstances and the country information, I find that it would be reasonable for the applicant to relocate to Tamil Nadu to avoid the localised threat of serious harm that he faces in his home state of Kerala… 

21. The Tribunal found that the applicant’s fear of persecution was not

    
    

    well-founded because it would be reasonable for the applicant to relocate within India and that there would not be a real risk of serious of significant harm if he went to relocate (s.36(2B)(a) of the Act). The Tribunal found that the applicant did not satisfy the criterion at s.36(2)(a) or (aa) of the Act ([55] – [61] at CB 163).

Application to the Court

1. The application to the Court is in the following terms:

   “1. The Respected case officers hasn’t investigated the case properly.

   2. He failed to consider the power of Hindu Extremists all around India.

   2. The case officer accepted my claims and also accepted the supporting documents which I provided. But when we consider, the relocation, he failed to remember or consider the attacks I faced outside Kerala, that is ‘Karnataka’. I faced severe persecutions in the state of Karnataka as well. He accepts that as well. That is the reason why he is another state Tamil nadu.

   It is clear that the Hindu Radical groups has immense power not only in Kerala or Karnataka but also in other states too. They got power all around India with the support of police and politicians.

   I will submit a supporting statement which will explains my fear of re-location. I request you, please allow me sometime to submitt the statement.”

   [Errors in the original.]

Before the Court

1. The applicant appeared before a Registrar of the Court, with the assistance of an interpreter in the Malayalam language, on two previous occasions, on 29 October 2014, and on 8 April 2015. The applicant was given the opportunity to file any further evidence by way of affidavit and any amended application.  The matter was set down for final hearing today. The applicant filed a document titled “Submissions Supporting Statement” on 5 December 2014. The submissions attached a number of documents from a website titled “Help AsiaNews.it” which were dated respectively 26 June 2012, 18 November 2014, 24 June 2010 and 9 April 2013.

2. Before the Court today the applicant appeared in person and was assisted by an interpreter in the Malayalam language. I note that the Minister has filed written submissions in these proceedings.

Consideration

1. When given the opportunity to address the Court, the applicant said that he had told the truth to the Tribunal, that the Tribunal had accepted much of what he had said, but did not believe him in some things.  I will return to this matter when I come to consider the applicant’s grounds in the application to the Court. 

2. In addition, while the applicant made reference to the Tribunal hearing being conducted by video conference, he explained that he had no complaint regarding the use of that facility.  In essence, the applicant’s complaint, to the Court was that it was not safe for him to return to India, and, in particular, to go to Tamil Nadu. He asked the Court to provide protection to him. 

3. As I explained to the applicant, the role and power of the Court was different to that of the Tribunal. Even if I were to form a different view as to the applicant’s claims to protection, that could not assist him.  The only way that the Court could intervene to send his matter back to the Tribunal was if some legal error (a jurisdictional error) could be found in the Tribunal’s decision. 

4. Having regard to the applicant’s written submissions and what he initially said to the Court today, it is clear that the applicant had misconceived the nature of judicial review, and misconceived aspects of the Tribunal’s decision and the role of the Court.  For example, the written submissions are addressed to the “case officer, Federal Circuit Court”. They ask that the case officer of the Court to review all of his claims and supporting documents, which he said “prove” all of his claims. 

5. The Court’s jurisdiction to review the Tribunal’s decision does not extend to conducting its own assessment of the merits of the applicant’s claims to protection.  The applicant’s attempt to seek merits review by this Court is of no assistance to him in establishing jurisdictional error on the part of the Tribunal Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).  As I have said, the Court simply cannot intervene on that basis alone. 

6. As stated above, the Tribunal summarised the applicant’s claims to protection in its decision record.  I note that the applicant’s grounds in his application and his written submissions do not challenge the Tribunal’s summary.  I cannot detect any complaint that the Tribunal failed to consider any aspect of his claims.  In this regard the Tribunal found that the applicant’s claims of past harm in relation to his political past were not well‑founded and did not give rise to a real risk of significant harm. I do not comprehend from the applicant’s documents before the Court, nor from what he said today, that there is any challenge to that finding. 

7. While the Tribunal expressed some doubts about the applicant’s claims in relation to religion, it found the applicant to be generally credible as a witness before it and that his claims in this regard were generally consistent with the country information concerning the mistreatment of evangelical Christians in Kerala and another state, Karnataka.  As I said earlier, the Tribunal found that the applicant did face a real risk of serious harm at the hands of Hindu extremists if he were to return to Kerala, his home state, and it made a similar finding in relation to the complementary protection criterion for the grant of the visa. 

8. What is of relevant note is that the Tribunal’s findings in this regard were limited to the applicant’s home state.  The Tribunal went on to find that the applicant would not face serious or significant harm if he were to relocate to Tamil Nadu, a state neighbouring the applicant’s home state.

9. A number of key elements can be identified in the Tribunal’s reasoning in support of this conclusion. The Minister’s written submissions summarise these. I am satisfied that they are a fair representation of what was said by the Tribunal. I adopt the relevant part of the submissions for the purposes of this judgment ([12] – [13] of the Minister’s written submissions): 

   “[12] The key elements of the Tribunal's reasoning, to the effect that the Applicant would not be at risk of relevant harm in Tamil Nadu, included the following matters:

   (a) country information did not indicate that Christians in Tamil Nadu were targeted by Hindu extremists, the BJP, the RSS or State actors;

   (b) Hindu extremists from the Applicant's home State would not be able to locate him in Tamil Nadu, given the large population of Tamil Nadu, and the large number of Christians within that population;

   (c) Hindu extremists associated with the BJP or RSS would in any event not be motivated to pursue the Applicant to another state, given the passage of time since the Applicant departed from India and the Tribunal's finding that the Applicant did not have a leadership role in the evangelical fellowship;

   (d) the Applicant told the Tribunal that in 2010 he had gone to Chennai, in Tamil Nadu, but that nothing relevant happened to him whilst he was there;

   (e) Indian police did not have an ongoing adverse interest in the Applicant and he would not be targeted by them in Tamil Nadu;

   (f) having regard to relevant country information, the Tribunal found that the Applicant would be able to practice his Christianity in an evangelical manner in Tamil Nadu without facing a relevant risk of harm.  In this regard, the Tribunal said: ‘Whilst I accept that the BJP and RSS ... are active in Tamil Nadu and there are some reports of mistreatment of Christians in Tamil Nadu, the overall country information concerning Tamil Nadu does not indicate that Christians in this state are being targeted by anyone on a more than infrequent basis’.

   [13] The Tribunal also considered other factors which it regarded as ‘strongly indicating that it would be reasonable for the Applicant to relocate to Tamil Nadu’. These factors were put to the Applicant at the hearing and concerned: the number of Christians and Malayalam speakers in Tamil Nadu; his previous experience living in Tamil Nadu; his prospects of employment in Tamil Nadu; and the fact that the Applicant had no family to support, had skills that would make him employable, and had experience living outside his home state and overseas.”

1. The reason that the Tribunal affirmed the delegate’s decision arose from its findings on relocation and that the applicant could reasonably and practicably relocate to Tamil Nadu. 

2. In its decision record, the Tribunal correctly identified the relevant principles in relation to relocation in matters of this type (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437). Further, it correctly understood how these principles operate in relation to both of the criteria for the grant of the protection visa, as set out in s.36(2) of the Act. On what is before the Court, I cannot see that the Tribunal failed to correctly apply these principles to the applicant’s circumstances as they were presented, and as they arose before it.

3. The applicant’s grounds, and his written submissions, raise a number of matters variously relevant to the Tribunal’s relocation finding.  Given the narrative and discursive nature of both of these documents, it is convenient to deal with these matters as follows. 

4. The applicant takes issue with what he says is the Tribunal’s finding that he did not have any leadership role in any evangelical group, and did not have any ability to evangelise. Given the relevance of these matters to the Tribunal’s analysis on relocation, it may be that an assertion of jurisdictional error could be understood to be that the Tribunal’s exercise of jurisdiction miscarried because there was no proper basis for the Tribunal to make these findings, which subsequently formed part of the basis for its relocation analysis. 

5. The applicant has not provided any transcript of the hearing before the Tribunal. The only relevant evidence before the Court is to be found in those parts in the Tribunal’s decision record that give a relevant account of what occurred at the hearing. 

6. On the evidence available to the Court, the applicant’s claimed evangelical role and practice was discussed at the Tribunal hearing.  It is to be remembered that the applicant had claimed to have taken an active and prominent evangelical role as part of his work with Christian Fellowship.  In this regard, as part of the documents that he had submitted, he had provided various statements from friends, and one statement from his brother in relation to this (see CB 127 to CB 140). 

7. At the hearing the applicant gave evidence about this matter (see

   
   

   [24] – [25] at CB 155 and [42] – [43] at CB 160).  It is important to note that the Tribunal accepted some of the applicant’s evidence in this regard.  However, as I said earlier, the Tribunal found, based on the applicant’s answers at the hearing, which the Tribunal found to be vague and lacking in relevant articulation, that while he engaged in fellowship activities, he had not performed a leadership role ([43] at CB 160). 

8. In relation to the applicant’s complaint now about his ability to preach, the Tribunal reported as follows ([43] at CB 160):

   “When I asked him on two occasions how he would go about convincing a non-Christian, he said he would spread the word of Jesus by reading the Bible, but he was not trying to convert people.  I find this explanation to be fundamentally inconsistent and the applicant did not display that he had any real ability to evangelise.”

9. The applicant’s complaint now, having regard to the application to the Court, can be understood as being that the Tribunal’s findings were either unreasonable, or there was no proper basis for these findings, given that the Tribunal expected him to demonstrate his preaching and evangelical activities at a hearing and, in particular, at a hearing conducted by a video conference. 

10. The applicant’s written submissions appear to complain about the limitations imposed by the use of the video conference facility on the hearing. It is important to note that the Tribunal is empowered pursuant to s.429A of the Act, to allow the appearance by the applicant before it by a number of different means, including that the Tribunal can allow the applicant to appear to give evidence by closed circuit television or any other means of communication, which would include video conferencing.

11. The difficulty for complaint, possibly arising from the applicant’s written submissions, concerning the fact that the hearing was conducted by a video conference facility, is there is no explanation as to how he was prevented from giving his evidence and giving his arguments to the Tribunal.  If there were any such difficulties, there is no evidence now before the Court to show that any complaint was made to the Tribunal during the course of the hearing or subsequently. 

12. Before the Court, the applicant said that he had no complaint about the use of the video conference facility. Rather, the complaint focussed on what he now says was the difficulty in demonstrating his preaching skills at a hearing. The Tribunal’s findings that arose from that evidence were reasonably open to it on what was before it and it gave cogent reasons for those findings.

13. It should be noted, given how the applicant has expressed this complaint in writing, there is nothing before the Court to suggest that the Tribunal asked him to demonstrate his preaching or evangelical techniques. Rather, in the circumstances, it asked the applicant to describe how he would go about these activities.  That is, the approach of the Tribunal was to give the applicant the opportunity to explain in his own words his evangelical or preaching skills. 

14. The Tribunal’s relevant findings arose from its evaluation of that evidence.  On what is before the Court, it was reasonably open to the Tribunal to find that his evidence was inconsistent with his claim to have been a leader of the evangelical group.  As I said earlier, the Tribunal nonetheless still found that he had been a member of the group and had attended certain relevant events in Kerala and in other states. 

15. This latter finding also informed the Tribunal’s subsequent finding that the applicant was of interest to Hindu extremists in Kerala ([47] at CB 160 to CB 161). The applicant’s complaints, therefore, can only be properly understood as being directed to the Tribunal’s subsequent finding that, notwithstanding this risk of local harm, he could nonetheless reasonably and safely relocate to Tamil Nadu. 

16. In that regard, the applicant’s submissions seek to take issue with the Tribunal’s conclusion that he could relocate, and further take issue with some of the Tribunal’s findings that informed that conclusion.  In this light it is important to note that there is nothing before the Court to show that the Tribunal did not understand the relevant principles, as set out in relevant authorities to which it referred. Further, on the evidence the Tribunal addressed each of the applicant’s objections to relocation to Tamil Nadu in light of relevant legal principles. 

17. The applicant’s written statement also complains that the Tribunal failed to consider the power held by Hindu extremists in all of India, including in Tamil Nadu. 

18. The Tribunal’s decision record reveals that in the context of relocation it had specific regard to country information concerning “Christians nationally”, and the harm faced from Hindu extremists and from state authorities ([49] at CB 161).  The Tribunal stated ([49] at CB 161):

    “…Whilst referring to difficulties for Christians in other states, the reports do not indicate Christians in Tamil Nadu, including those involved in evangelical activities, are being targeted by Hindu extremists, the BJP, the RSS or the state.” 

19. Specifically, and relevantly, given the applicant’s complaints now, the Tribunal reports that it considered the applicant’s claim concerning Hindu extremist activity in Tamil Nadu.  It found that on the country information available, the applicant ([51] at CB 162):

    “…could practice his Christianity in an evangelical manner as he has done in the past without facing a real risk of persecution or a real risk of serious harm in Tamil Nadu.”

20. This finding was reasonably open to the Tribunal on what was before it. The applicant’s complaints, therefore, are really a challenge to the Tribunal’s findings of fact. Therefore, the applicant seeks impermissible merits review from this Court (Wu Shan Liang). 

21. Further, in his written submissions to the Court, the applicant states that had had “clearly mentioned that” he “was followed to Chennai [in Tamil Nadu] by Hindu extremists”.  In context of his submissions to the Court, and what is said to be the ground of the application, it would appear that the applicant’s contention is that it was not open to the Tribunal to find he could safely relocate to Tamil Nadu in these circumstances. 

22. I note that the applicant had provided written submissions to the Tribunal dated 8 July 2013 in which he claimed that criminals sent by Hindu extremists had followed him, including to Chennai (CB 55 to CB 58). These submissions were directed to findings made by the Tribunal, as differently, and earlier constituted. 

23. In his subsequent evidence to the Tribunal, as constituted for current purposes, the Tribunal reported, with reference to the hearing on 11 August 2014, as follows (at [50] at CB 161):

    “The applicant stated that in 2010 he had gone to Madras Chennai, which is in Tamil Nadu, but that nothing happened to him whilst he was there.”

24. The Minister submitted that, there is a seeming contradiction between the applicant’s written statement of 8 July 2013 and his evidence as reported by the Tribunal at the hearing on 11 August 2014.  Some care must be taken here. The applicant certainly claimed in his written statement that, amongst other things, he “came to know” that he had been followed by extremists to Chennai in Tamil Nadu, and that they had found his “place” (CB 55.9).  

25. It is not clear when the applicant “came to know” this. That is, whether it was after he left Chennai or while was still there. The reference to “Followingly (sic) my friend in cochin arranged a secret place” may have been a reference to a time subsequent to his being in Chennai.  In short, the written statement before the Tribunal was not clear. There are a number of ambiguities and unexplained aspects to that statement. 

26. Before the Tribunal, the applicant claimed that he could not reasonably or safely relocate to Tamil Nadu because Hindu extremists from his home would locate him there and harm him. This aspect of the applicant’s claim is consistent with his earlier written statement that he came to know that he had been followed there in the past. 

27. The Tribunal’s relevant reasoning at [50] (at CB 161) of its decision record must of course be read fairly and contextually.  It is clear that the Tribunal did not accept that Hindu extremists from the applicant’s home state would be able to find him in Tamil Nadu.  The Tribunal gave reasons for this, including the vast number of people in Tamil Nadu and the large number of Christians in Tamil Nadu. 

28. Whether the applicant’s earlier written statement and the reported evidence at the hearing contain a seeming inconsistency, as the Minister suggests in his written submissions, or whether there is no inconsistency when the Tribunal’s analysis is read fairly, no jurisdictional error is revealed in the Tribunal’s decision.  That is because the Tribunal gave reasons as to why the applicant could safely and reasonably relocate to Tamil Nadu that were not dependent on, or did not derive from, this seeming inconsistency.  In this regard, it was open to the Tribunal in this context to take into account the applicant’s evidence at the hearing that he had gone to Chennai in the past, but that nothing had happened to him while he was there. 

29. There is, as I said earlier, another reading of the applicant’s two statements that would lead to the view that there was no inconsistency between the written statement and the Tribunal’s analysis. As I said earlier, the applicant’s written statement is that he came to know that extremists had followed him to Chennai.  It is important to note that the written statement made no reference to any physical harm occasioned to the applicant at that time in Chennai. The Tribunal proceeded on that basis. This approach not inconsistent with the statement of applicant’s evidence relied on by the Tribunal that “nothing” happened to him while he was in Chennai. 

30. The Tribunal’s reasoning at this part of its decision record (at [50] at CB 161) makes reference and uses the words “I have also taken into account that at my hearing the applicant stated…”.  It then reported what the applicant said at the hearing.  In my view, on a fair reading, while the applicant claimed that he would be followed to Tamil Nadu, and located and harmed in the future, the Tribunal found that he had not been harmed in the past.  At this part of its analysis, the Tribunal “had also taken into account” (at [50] at CB 161), irrespective of whether he had been located in the past in Chennai, that nothing had happened to him in the past in Chennai. 

31. In any event, even if it were to be said that there is some inconsistency and that the Tribunal did not resolve this inconsistency, the Tribunal found, as the Minister correctly submitted, that Hindu extremists would not be motivated to pursue the applicant to another state outside of his home state, given the passage of time since he had left India, and also found that he did not have any leadership role in the evangelical fellowship.  These findings were reasonably open to the Tribunal to make. Therefore, no legal error is revealed. 

32. The applicant also complains in his written submissions that:

    “When we compare Kerala and Tamil Nadu, the rate of attacks against Christians is higher in Tamil Nadu.” 

33. As the Minister submitted, there was no evidence to this effect before the Tribunal. Nor did the applicant assert, on the evidence before the Court, that this was part of his objections to relocation.  On this basis, it is not open to the applicant to seek now to impugn the Tribunal’s relocation finding in this regard. 

34. The applicant’s ground three also asserts the Tribunal failed to “…remember or consider in the context of relocation that the applicant had been attacked in the state of Karnataka”. He claimed to fear persecution in that state. 

35. The difficulty for the applicant with this particular allegation is that the evidence before the Court reveals that the Tribunal accepted his claim that he had travelled to this state in 2010, and that he had been physically attacked.  The Tribunal, therefore, contrary to the assertion made in the application, did consider it. 

36. It would appear, however, that the complaint is also that this was somehow relevant to the question of his relocation.  The difficulty, however, for the applicant is that his written submissions do not explain, and nor did he explain it before the Court today, the relevance of the situation in Karnataka to relocation to Tamil Nadu, as they are different states.

Conclusion

1. In all, the applicant’s written submissions, what he stated under the heading of “Grounds of Application”, and what the applicant said to the Court today have not revealed jurisdictional error in the Tribunal’s consideration of his claims, and its findings and conclusion that he could reasonably and practicably relocate to Tamil Nadu. No jurisdictional error is revealed.  It is appropriate that the application to the Court be dismissed. I will accordingly make the appropriate order. 

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 11 April 2014