SZVWC v Minister for Immigration

[2019] FCCA 1995

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWC v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1995

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – claim that the Administrative Appeals Tribunal committed jurisdictional error by failing to constructively exercise its jurisdiction, consider all of the applicant’s claims and integers of those claims and engage in an active intellectual process – no such jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303

Applicant: SZVWC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3511 of 2014

Judgment of: Judge Dowdy

Hearing dates: 7 July 2016 & 27 July 2018

Delivered at: Sydney

Delivered on: 25 July 2019

REPRESENTATION

The Applicant appeared
in person at the hearing on 7 July 2016 and did not appear at the hearing on 27 July 2018.

Counsel for the First Respondent: Mr J. Hutton appeared at the hearing on 7 July 2016 and Ms H. Dejean appeared at the hearing on 27 July 2018.

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Direct that pursuant Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth), the Second Respondent’s name be amended from ‘Refugee Review Tribunal’ to ‘Administrative Appeals Tribunal’.

2. The affidavit of the Applicant affirmed on 27 July 2016 is admitted and marked “Exhibit C”, with paragraphs 1 and 2 admitted and read only as submissions.

3. The Application filed in this Court on 18 December 2014 and the Amended Application filed in this Court on 16 March 2016 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3511 of 2014

SZVWC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a male citizen of India aged 44 years, having been born on 27 April 1975.

2. By Application filed in this Court on 18 December 2014 and Amended Application filed in this Court on 16 March 2016, he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal, formerly Refugee Review Tribunal), dated 24 November 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 March 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

1. The Applicant applied offshore for a Business Visitor (Class FA) (Subclass 600) visa (Business visa) which was granted on 12 June 2013. He then arrived in Australia on the Business visa on 29 June 2013. The Business visa ceased on 29 September 2013. He applied for the Protection visa on 17 September 2013.

Claims for Protection

1. The Applicant was born in Nagore, a town of the state of Tamil Nadu in India on 27 April 1975 and is a Muslim by religion. He married in Nagore on 7 October 2001 and his wife and three children continue to reside in India. He completed 15 years of education in India and Singapore and was awarded a Diploma of Civil Engineering in India in 1994.

2. Prior to coming to Australia he worked for 2 years as a civil engineer in India and prior to that he had lived and worked in Singapore from July 2007 to June 2010 where he ran his own small internet and telecommunications business, mostly communicating in English and Tamil. Before that he had worked for three companies in the construction industry in Chennai and Nagore between 1994 and 2007 and he travelled to Germany and Italy for business in March 2012.

3. The Applicant’s claims to protection were made in a 12 page undated Statement (Statement) which formed part of his Protection visa application form. In short the Applicant claimed to fear harm from two distinct groups in India, namely:

   a)members of the Hindu Front in Nagore, because of his suspected connection to the death of the wife of the leader of the Hindu Front in 1995, and the death of a Hindu man in the sectarian conflict that followed her death in 1995; and

   b)the Jemaat group and the men from Nagore who attacked him at a building site in the town of Velankani near Nagore in March 2012 when he was hit on the head with an iron bar. These men were subsequently charged by the police and are facing imprisonment and have threatened to kill him if he gives evidence against them.

4. The below summary of the claims made by the Applicant in his Statement, which I consider to be accurate, is taken from [6] of the Decision Record of the Tribunal:

   a)The population of Nagore is 75% Muslim and 25% Hindu who until about 1986 lived together peacefully; however, since then, there has been religious and sectarian tensions and conflict involving groups such as the fascist Hindu groups Rashtriya Swayamsevak Sangh [(RSS)] and the Hindu Front, and Islamic groups including Al Ummah.

   b)in early 1995 he stayed at a lodge in Chennai while he received treatment for an ear infection; he shared a room with two young Muslim men who were connected to the head of Al Ummah; they asked him to read to them a book in English about making bombs for guerrilla warfare; he refused and they left the next day and nothing happened.

   c)sometime later, back in Nagore, one of the young men he met at the lodge came to see him and told him not to mention to anyone that he had met them at the lodge or that he knew about the book about explosives. The young man tried to persuade the Applicant to join the Al Ummah. He never saw him again after that meeting;

   d)in July 1995 a letter bomb exploded in the house of the Hindu Front leader in Nagore, killing his wife [(1995 letter bomb incident)]. In response, the applicant and his father and other Muslims who lived close by were targeted and attacked by Hindu groups. In the chaos of the riots that occurred, a Hindu man was killed inside their house after people had chased his family into the house. The police conducted an investigation and tensions rose in the area. The two young Muslim men he had met in Chennai were arrested and prosecuted, and the applicant was taken into custody and questioned about his knowledge of the men, and was released without charge. Following that incident, the applicant and his family moved to a majority Muslim area in another part of Nagore;

   e)the RSS and Hindu Front came to know about his suspected involvement with the two Muslim men and he began to fear for his life;

   f)he joined the Tamil Nadu Muslim group [(TMMK)] in August 1995 because he feared for his life from Hindu extremists;

   g)subsequently, whenever there was a bomb or explosion in Nagore, such as in early 1998, the police would arrest the applicant and question him about his knowledge of what had happened; they tortured him when questioning him;

   h)in fear of further harassment, he moved to Chennai in late 1999 or early 2000 and worked in construction, hidden from the police. He returned to Nagore for five days in October 2001 to get married;

   i)he returned to Nagore in 2004 believing the police and Hindu groups would have forgotten about him. In 2007 he moved to Singapore and remained there until 2010;

   j)he moved to Thiruthuraipoondi, 50 kilometres south of Nagore, and started a construction company with a [Christian business partner]. The business was a success. They constructed buildings for a Christian charity and he became involved in the Christian community in Thiruthuraipoondi. A photo of him at a Christian function appeared in the local media and rumours began to spread that he had converted to Christianity, and he began to receive calls from relatives asking if it was true and calls from other people that were intimidating and derogatory;

   k)associates in the TMMK were concerned and he was called to a meeting at the TMMK disciplinary committee, at which he assured them he was still a Muslim and was only doing business with Christians. They accepted his submission and nothing happened;

   l)his family Mosque, the Jemaat, also asked him to explain his association with Christians, however, he ignored their letter believing he had already been cleared by the TMMK. He continued to work with the TMMK, including by donating blood and attending environmental protests against pollution. He was elected as secretary of the Muslim community action committee to lobby the government against the pollution. He participated in a peaceful ‘sit in’ in October 2011, which the police used force to break up, and he was assaulted. A compromise deal was reached with the local government about the pollution issue;

   m)the Jemaat Mosque sent him another letter and asked him to explain his association with Christians and he met with their officials and assured them he was still a Muslim and was only doing business with Christians. He argued with some of the officials. He later received a letter from the Jemaat ordering him to cease all work with the Christian Church and Christian community within one month. He decided to not comply with their request;

   n)he was involved in more environmental campaigns with the TMMK, including a protest at Idinthakrarai, at which police used force and he was assaulted and he sought refuge at a nearby church;

   o)he received a further letter from the Jemaat ordering him to cease all work with the Christian Church and Christian community or face the consequences. He raised the matter with his Christian business partner who then spoke to the head of the church who contacted his friend in the government who said they would help him if needed. However, he decided to not involve the police or government;

   p)sometime later he received another letter from the Jemaat which referred to his contact with the head of the church and informed him that he and his family had been ex-communicated from the Jemaat. After that, everyone in their local community began to ignore him and his family, and refused to sell them groceries or talk to them;

   q)they thought about moving to a new city but decided against it. The TMMK were reluctant to intervene as they did not want to jeopardise support from the Muslim community in Nagore. Members of the Christian community in Thiruthuraipoondi offered to help and urged him to convert to Christianity, but he refused. Instead he moved to Velankani to finish the work on the church project;

   r)in March 2012 he was confronted by a group of 15 Muslims from Nagore who accused him of contempt; he argued with them and a scuffle broke out and the Applicant was hit on the head with an iron bar. He was taken to the local hospital and a clot was removed from his brain; however, he was in a coma for 13 days and lost the use of his right hand and leg;

   s)his attackers were arrested and prosecuted. They asked him to forgive them and withdraw the charges but he refused. He was again warned to cease work with the Christians. His accused attacker had previously murdered a man and his family were very concerned for his safety. He was in physical pain from his injuries and was living under house arrest. People from the Christian church offered to help, and they arranged for him to move to Goa, 1,000 kilometres from Nagore. However, after he went to Goa, the police contacted his family about the investigation and his family told the police where he was, and somehow, his attacker also found out that he was in Goa and sent two men to confront him in Goa; they told him to withdraw the charges; he discussed the situation with the priest from Velankani and they agreed he should leave India. He returned to Velankani on 30 March 2013 and remained there until he left on 29 June 2013.

   (emphasis added)

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 28 February 2014.

2. In her Decision Record the Delegate found significant inconsistencies between the evidence that the Applicant had provided in his Statement and during the interview with her. She also found significant inconsistencies and conflicting information between his Business visa application and his Protection visa application and considered that he had given false and misleading information and evidence to the Department of the Minister in his Business visa application. In the result the Delegate found that:

   a)the Applicant’s circumstances in India were not as he had claimed;

   b)the Applicant’s family were not being harassed by the Muslim Jemaat or the Hindu Front; and

   c)the Applicant was not a credible witness.

3. Accordingly, the Delegate was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention criterion or the complementary protection criterion pursuant to s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) and refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 18 March 2014 and gave a copy of the Decision Record of the Delegate to the Tribunal at that time.

2. The Applicant appeared before the Tribunal on 16 October 2014 to give evidence and present arguments with the assistance of an interpreter in the Tamil and English languages.

3. At [4] – [9] of its Decision Record the Tribunal recorded the claims and evidence put forward by the Applicant in his Statement and to the Delegate. At [7] it noted that the Applicant had given to it the following documents:

   a)a letter dated 6 November 2011 from the TMMK stating that the Applicant had donated blood during their campaigns;

   b)a letter dated 5 March 2005 from the TMMK stating that the Applicant had helped with Tsunami relief works; and

   c)various media reports about:

   i)environmental protests in Tamil Nadu;

   ii)the arrest of an accused individual in the 1995 letter bomb incident;

   iii)the arrest of Al Ummah suspects in relation to the 1995 letter bomb incident; and

   iv)the interception of boats carrying asylum seekers leaving Tamil Nadu for Australia.

4. From [10] – [32] of its Decision Record the Tribunal recorded the evidence given by the Applicant at the Tribunal hearing. At [15] it recorded that at the Tribunal hearing the Applicant confirmed his movements between Nagore, Chennai and Singapore from 1995 to 2012 and claimed to fear harm from members of the Hindu Front and RSS because of the 1995 letter bomb incident and the death of a Hindu man in the following riots.

5. At [38] of its Decision Record the Tribunal noted, in regard to the Applicant’s claim of environmental activism in his Statement (see: [7(l)] and [7(n)] above), that “during the course of the processing of his application at the Department and Tribunal, including when asked about his claims at the hearing, he did not provide any further information or claim” that he would be at risk for this reason and it recorded that it did not accept that there was a real chance that he would “suffer serious harm for reasons of his ‘environmental activism’ with the TMMK”. See also [58] where the same conclusion was reached by the Tribunal in connection with the complementary protection criterion.

6. From [39] – [42] of its Decision Record the Tribunal recorded its acceptance of the Applicant’s account of the events of 1995, including  that he was arrested and questioned by the police after the 1995 letter bomb incident, that following the 1995 letter bomb incident a Hindu man associated with the Hindu Front was killed, that the Applicant and his family were subsequently harassed by the Hindu community which caused them to relocate to the Muslim area of Nagore and that in late 1995 the Applicant had joined the TMMK in Nagore. At [40] the Tribunal accepted that in about 1998 – 1999 the Applicant was again questioned by the police about his knowledge of other bombing incidents against the Hindu community in Nagore but was released without charge. It also accepted that he was hit and mistreated by the police during their questioning of him. However, it went on to find that:

   [40] …On the basis of his clear evidence at the hearing, it finds that, after 1999, he was not questioned by the police about his knowledge of any terrorist-related matter in India. He did not claim to fear being harmed by the authorities or police in the future for reasons relating to his potential knowledge or connection to Muslim terrorists in Nagore, and, on the evidence and information before it, the Tribunal considers the chance of him coming to the adverse attention of the authorities in India for reasons relating to the events of July 1995 or any other related reasons, including his suspected knowledge of or alleged connection to Islamic terrorists, to be remote. For these reasons, it finds there is not a real chance he would suffer serious harm for any reason relating to the events of July 1995, including his suspected knowledge of or alleged connection to Islamic terrorists, in the event he returns to India now or in the reasonably foreseeable future.

7. At [41] – [42] of its Decision Record the Tribunal turned to consider the Applicant’s claim of continuing to fear being targeted by members of the Hindu Front. It noted that:

   a)almost 20 years had passed since the relevant events in 1995;

   b)the Applicant had conceded that members and associates of the Hindu Front in Nagore had not actively pursued him or his family since they had relocated to the Muslim area of Nagore in 1995; and

   c)apart from one claimed incident in 2004 he had not been harmed or threatened by the Hindu Front since 1995, despite having lived in the Muslim area of Nagore from 1995 to 2000, 2004 to 2007 and 2010 to 2012.

1. Accordingly the Tribunal concluded as follows at [42] of its Decision Record:

   [42] For these reasons, on the evidence before it, the Tribunal considers the chance of him coming to the adverse attention of a member of associate of the Hindu Front for reasons relating to his alleged association to the death of the leader’s wife and the man at or near his house in July 1995, and being subjected to serious harm in the reasonably foreseeable future, is remote and far-fetched, and it does not accept there is a real chance he will suffer serious harm in that way for those reasons in the event he returned to India now or in the reasonably foreseeable future.

2. From [43] – [44] of its Decision Record the Tribunal recorded its acceptance of the Applicant’s claim that members of the Jemaat group confronted and attacked him in March 2012 when he was assaulted with an iron bar while he was at work on a building site in Velankani, which caused him to suffer serious injuries and to be hospitalised for about 14 days and as a result of which assault the perpetrators were arrested and charged by the police, but had been subsequently released on bail and were awaiting trial. Nevertheless at [45] the Tribunal, whilst accepting that the Applicant had moved to Goa after this assault, specifically for the reasons there stated did “not accept that the applicant was located in Goa by agents of the accused or people associated or connected to the Jemaat in Nagore”.

3. These findings meant that the Tribunal accepted that there was a real chance that the Applicant would suffer serious harm if he returned to Nagore, finding at [47] of its Decision Record as follows:

   [47] The applicant claims that, if he returns to his home area, he will be seriously harmed by his accused attackers and / or by members or agents of the Jemaat. The issue for determination is whether or not, in all the circumstances, his fears of future harm are well-founded, as understood in the terms set out above. In light of its finding that the accused men who threatened to harm him continue to await criminal trial in Velankani, the Tribunal is unable to confidently dismiss the possibility that, despite the passage of more than two and a half years since the incident occurred, those men continue to have an adverse interest in the applicant. Nor is it able to confidently dismiss the possibility that the Jemaat continues to have an adverse interest in him, or that, were he to return and recommence the profitable work that brought him to their attention, which it accepts he would want to do, it would again have an adverse interest in him. For these reasons, in light of its finding that the Jemaat caused him to suffer serious harm in the past, on the evidence and information before it, the Tribunal accepts that, if he returned to the Nagore area, there is a real chance the applicant would suffer serious harm in the form of significant physical ill-treatment by either the accused men who attacked him or other members of the Jemaat in Nagore.

   (emphasis added)

4. Accordingly the Tribunal, from [51] – [54] of its Decision Record in connection with the Refugees Convention criterion and at [60] in connection with the complementary protection criterion, recorded its consideration of whether the Applicant could relocate to any other area of India outside Tamil Nadu, and it concluded that he could. It recorded at [29] – [30] that earlier in the Tribunal hearing it had discussed with the Applicant the issue of relocation, as follows:

   [29] The Tribunal noted that independent information from credible sources indicated that as a citizen of India [the Applicant] was free to live anywhere in the country and that there was no requirement for him to register with the police if he relocated to another part of the country, or to inform the authorities of his new address. Information indicated that India’s population was more than 1.3 billion people, who lived in more than 27,000 different cities, towns and villages. It noted that there were numerous cities with populations of more than 10 million people, including Mumbai, Delhi, Bangalore and Hyderabad, which each had large Muslim communities. The Tribunal asked [the Applicant] whether, in his circumstances, he could return and live in one [of] those cities. He said it is true that he could go back and live outside Tamil Nadu but he can only speak English and Tamil and it would be difficult for him. The Tribunal noted that independent information indicated that English was spoken by many people in the large cities of India, and that, with his work background and business skills, he would have the ability to find work in a new environment, as he had in Singapore. He said that is all true, but the accused people will find him and kill him.

   [30] The Tribunal asked [the Applicant] to explain how they would locate him if he returned and lived in Hyderabad or Mumbai or Bangalore. He said they will track him down like they did in Goa. The Tribunal put to him that it would be reasonable to assume that, if he returned and lived in one of those cities and had a genuine fear of being located by people from Nagore, he would take steps to ensure that only trusted people knew where he was. He said that is true but how could he be expected to live like that, away from his family and friends. The Tribunal noted that he had done it in Singapore and also since he has been in Australia, and had demonstrated that he has the skills and attributes to live in a new environment away from his family and friends and contacts, and has been able to find work and a safe place to live. He said that is true and he can survive and do it but he came here to save his life. The priest told him to come here. The Tribunal explained that it had to consider whether there was an appreciable risk of him suffering serious or significant harm outside his home area in India and if not whether it would be reasonable in the circumstances to live in another part of the country where there was not a real chance he would suffer that harm. He said he could live anywhere but they will find him. The Tribunal asked him to explain how that would happen. He said maybe they will not find him straight away, maybe it will take a year or two, but they will find him.

   (emphasis added)

5. In the result, at [51] of its Decision Record the Tribunal noted that it had not accepted the Applicant’s claim that he had been located in Goa by persons associated with the Jemaat Group and at [52] – [54] concluded that it would be reasonable for the Applicant to relocate to an area outside of Tamil Nadu if he returned to India:

   [52]When it asked him to explain how his accused attackers or anyone else would be able to locate him in a country the size of India, which has a population of more than 1.3 billion people, who live in more than 27 million [I read this to be a typographical error for ‘27,000’, as appears at [29] of its Decision Record and extracted at [22] above] towns, cities or settlements, where there is no requirement for him to register with the police if he relocated, he did not provide any reasons or articulate how it would be possible for that to occur. Indeed, as discussed with him, in the absence of a person disclosing his location to someone else, the chances of anyone locating him in an area outside of Tamil Nadu appeared remote and far-fetched. In light of his evidence that the Jemaat in Nagore is a stand-alone organisation not connected to other peak Muslim or Mosque associations in India, having carefully considered the evidence and information before it, the Tribunal does not accept that [there] is a real chance he would suffer serious harm from his accused attackers or other members of the Nagore Jemaat in the event he returned to India and resided in a large city outside Tamil Nadu, such as Bangalore, Mumbai or Hyderabad.   

   [53] Having found that there is not a real chance he will suffer serious harm outside Tamil Nadu, the Tribunal has also considered whether in his particular circumstances, it would be reasonable for the applicant to relocate to a city such as Bangalore, Mumbai or Hyderabad. When it discussed this issue with him, he accepted that, with his education levels and work experience, he would be able to successfully relocate to one of those cities, despite his initial claim that his inability to speak Hindi would cause him problems. Indeed, as discussed with him, his demonstrated ability to relocate to Singapore, where he successfully established a small business and lived for three years away from his family, indicated he had the skills and attributes to relocate.

   [54] For all of these reasons, on the evidence and information before it, the Tribunal considers that, in his particular circumstances, it would be reasonable for the applicant to relocate to an area outside Tamil Nadu if he returned to India.

6. Accordingly, the Tribunal found at [62] of its Decision Record that Australia did not have protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and at [63] it affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. At the hearing in this Court the Applicant appeared in person and Mr Hutton appeared for the Minister. In the usual course an Amended Application overtakes and renders redundant an original Application, but in this case the Applicant made clear in his Written Submissions that he still relied on his Application originally filed on 18 December 2014, which contained the following verbatim Grounds:

   1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

   2. The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.

   3. The Second Respondent committed jurisdictional error by failing to address the applicant’s claims in the way it was made;

   a. The applicant stated in his protection visa that he was a member of TMMK. He was also elected secretary of Muslim community. He was also involved in the Christian community.

   b. In March 2012, applicant was attacked by the Muslims and applicant was hit on the head with an iron bar. He was in coma for 13 days because of his involvement with Christian community.

   c. The attackers threatened to kill the applicant after the were arrested and persecuted.

   d. The applicant was perceived association to Radical Islamic group Al-Ummah. The applicant was interrogated by the police about 1995 bomb explosion and Hindu extremists group threatened to kill applicant and his family members.

   4. The Tribunal constructively failed to exercise its jurisdiction as it did not address all integers of Applicant’s claims;

   a. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Jemmat, RSS, Police and the attackers.

   5. The applicant satisfies the four key elements of the Convention definition as detailed in page 19 – 21 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

2. The Amended Application contained the following Grounds, which in truth do not constitute proper grounds asserting jurisdictional error and to which I will not therefore further refer:

   I still rely on the grounds and particulars stated in my Application to the Federal Circuit Court of Australia which was filed on 18 December 2014.

   I am an Applicant.

   I am self-represented.

   I am unemployed.

   I had a blood clot in my brain and have had surgery.

   I have no income to pay for a Lawyer to represent me in this Court.

Consideration

Original Application

Ground 1

1. In this matter the Tribunal found in the Applicant’s favour that he would face a real chance of serious harm upon return to the areas of Nagore and Tamil Nadu for the purposes of s.91R(1)(a) of the Act (for reason of his Muslim religion: see [48] – [49] of its Decision Record). Likewise, the Tribunal found that he would be at risk of significant harm for the purposes of the complementary protection criterion if he returned to Tamil Nadu.

2. Having made these findings with respect to Nagore and Tamil Nadu, the Tribunal went on to consider whether there was a different region of India where objectively there was no appreciable risk of the occurrence of serious or significant harm for the Applicant, and found that he would not suffer these forms of harm in India outside Tamil Nadu.

3. Further, as required the Tribunal went on to consider whether it was reasonable and practicable for the Applicant to relocate. It considered  such cities as Bangalore, Mumbai and Hyderabad which had populations of more than 10 million people and which included large Muslim communities, and concluded that it would be reasonable for him to relocate outside Tamil Nadu.

4. In my view the issue of relocation was considered and the Tribunal’s reasoning in this connection does not exhibit legal error or legal unreasonableness, and Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

1. The documents referred to in the Particulars to this Ground are summarized at [7] of the Decision Record of the Tribunal: see [14] above.

2. The Applicant’s claim was that he had joined the Muslim group TMMK in August 1995 because he feared for his life from Hindu extremists (see [7(f)] above) and that he had donated blood and attended environmental protests against pollution for the TMMK (see [7(l)] above). In the last sentence of [39] of its Decision Record the Tribunal expressly accepted that in late 1995 the Applicant had joined the TMMK in Nagore, and at [38] recorded that it was “prepared to accept that he did engage in environmental activism with the TMMK in the past”, but found as recorded at [16] above in this connection.

3. There was no further need for the Tribunal to refer to the letter from the TMMK in relation to blood donations, which were merely incidental to the Applicant’s claim to have joined the TMMK and which claim the Tribunal accepted. Further, the absence of a reference to the letter concerning blood donations does not mean that it was not considered or regarded by the Tribunal. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 [46] per French, Sackville and Hely JJ. An error of fact based on a misunderstanding of evidence, or even overlooking an item of evidence in considering an applicant’s claims, is not jurisdictional error so long as the error does not mean that the Tribunal has not considered the applicant’s claims: Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28] per North and Lander JJ. Further, it was not material which could be regarded as so “fundamental”, “important” or “overwhelming” such that a failure to have regard to it by the Tribunal would constitute jurisdictional error: see Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [60] per Tracey J. It was not of pivotal or fundamental importance to the Applicant’s claims.

4. At [39] of its Decision Record the Tribunal accepted the Applicant’s claims with respect to the events in 1995 and his connection with the TMMK. Documents concerning “the interception of boats of asylum seekers leaving Tamil Nadu for Australia” were irrelevant because the Applicant left India lawfully on a Business visa.

5. It follows that in my view the Tribunal meaningfully engaged in an active intellectual process of considering the Applicant’s claims to protection for which the letters were said to be corroborative and confirmatory, and Ground 2 fails to establish jurisdictional error. 

Ground 3

1. With respect to Ground 3(a), the Tribunal accepted the Applicant’s connection and membership with the TMMK and his work with the Christian community: see [39] and [43] of the Decision Record of the Tribunal. In such circumstances it was unnecessary for the Tribunal to make any further reference to the claim that he had been “elected as secretary of the Muslim community action committee to lobby the government against the pollution” (see [7(l)] above), having regard to the Tribunal’s finding in connection with the claim of “environmental activism”.

2. With respect to Grounds 3(b) and 3(c), the Tribunal accepted the Applicant’s claims that if he returned to Nagore and Tamil Nadu he might suffer serious or significant harm.

3. With respect to Ground 3(d), the Applicant’s claims in relation to his association with Al Ummah and meeting the two youths who sought to convince him to join Al Ummah were noted by the Tribunal as recorded at [7(a) – (d)] above, as summarised from pages 3 and 6 of the Statement, and his evidence in that connection at the Tribunal hearing was summarised at [13] of the Decision Record. His claims were substantially accepted by the Tribunal, as recorded at [39] – [40], but it concluded on the Applicant’s own evidence at [40] extracted at [17] above that he was not at risk of harm because of any connection to Islamic terrorists.

4. In my view the Tribunal comprehensively addressed the Applicant’s claims in the way that they were made and formulated, and this Ground fails to establish jurisdictional error.

Ground 4

1. In effect this Ground invokes a merits review application of the decision of the Tribunal which is not available in this Court. The Decision Record of the Tribunal evidences a comprehensive and thorough consideration and evaluation of the claims as made by the Applicant and it did not constructively fail to exercise its jurisdiction.

2. The fact of the matter is that the Tribunal affirmed the decision of the Delegate because in its view the Applicant was able to relocate within India outside of Tamil Nadu.

3. This Ground fails to establish jurisdictional error.

Ground 5

1. Pages 19 – 22 of the Decision Record of the Tribunal constitute an Appendix which sets out and summarises the statutory criteria applicable to the grant of a Protection visa under the Refugees Convention criterion and the complementary protection criterion, together with various principles found in the case law in relation to credibility.

2. This Ground merely argues with the fact that the Tribunal, in having regard to the statutory criteria and relevant law, failed to be satisfied that the decision of the Delegate was wrong.

3. Ground 5 fails to establish that the Tribunal committed “factual and legal error”, or that the Decision Record of the Tribunal otherwise suffers from jurisdictional error.

A Further Matter

1. During the hearing in this Court the Applicant complained that:

   a)at the Tribunal hearing the Tribunal member cut him off from making submissions about events when he went to Goa, and the Tribunal hearing was ended before he had concluded his submissions; and

   b)insofar as [29], [30] and [53] of the Decision Record of the Tribunal recorded him as making concessions or admissions, they were not so made.

2. The Applicant did not tender a transcript of the Tribunal hearing to make good the above complaints at the hearing in this Court, but in the result I gave him leave to file and serve a complete transcript of the Tribunal hearing within 21 days. I advised him that he had to point out and highlight the discrete parts of the transcript upon which he relied. A transcript of the Tribunal hearing is annexed to the affidavit of the Applicant affirmed on 27 July 2016 (the transcript), and he has highlighted pages 32, 37, 38 and 40 of the transcript.

1. The Minister has submitted to me, and I accept, that there is no evidence about the providence of the transcript, or evidence that it has been prepared by a professional transcription service, and that it is of relatively poor quality.

2. I first record that the evidence establishes that the Tribunal hearing took place over a period of three hours and thirty minutes, commencing at 1:32pm, and that there were two adjournments during that period at 3:09pm and 4:36pm, with the hearing concluding at 4:45pm.

3. Towards the commencement of the Tribunal hearing, as recorded at page 2 of the transcript, the Tribunal member said as follows:

   Member: … Ok the purpose of the hearing is for you to tell me what happened and what you think would happen if you go back and also it gives me the opportunity to discuss matters with you which I am not sure about. Alright the hearing mostly will be question and answer so please listen to my question carefully to my questions and answer them as best you can and there is no rush, take your time. We will have break about each hour so the interpreter can rest. Ok she only to assist you and I to communicate she doesn't perform any other role. She can't answer questions for you or give you information all she does is tell you what I say and tell you what you say. Are you able to understand her clearly?

Complaints in Paragraph 1 of the Applicant’s Affidavit of 27 July 2016

1. In his affidavit of 27 July 2016 the Applicant states that the Tribunal member interrupted his evidence at the Tribunal hearing as established by page 28 of the transcript, but no part of that page is marked up. The only passage conceivably relevant to a claim of interruption is, as extracted from the bottom of page 27 over onto page 28, as follows:

   Member: ok in your statement you said that the people who attacked you on that occasion were arrested and prosecuted and it seem they must be released in bail or something and they came approached you and asked you to withdraw the charges

   (page 27)

   Applicant: They asked me

   Member: it seems you didn't say clearly in your statement but it seems that you said no I am not going to refuse sorry withdraw

   Applicant: Yes and I had mentioned the reason for that in one of the place in the statement. I told them that I am not going to forgive you for what you have done to me putting me fifteen days in comma. Until today this time I am going through pain and suffering

   Member: Mr [SZVWC] as I said before just if you look at me not the interpreter just this side

   Applicant:sorry

   Member:that's alright no issues but that makes her job bit easier if you are not sitting there staring straight at her

   Member: so the incident happened in March and you said you also went to Goa in March so what was the period in between the incident the attack and when you went to Goa

   (page 28)

2. In my view the above passage does not indicate any improper or unreasonable interruption by the Tribunal member, nor is there any indication that the Applicant was disadvantaged or precluded in any way from fully and properly putting his case to the Tribunal.

3. The next passage relied upon by the Applicant is at page 32 of the transcript, as follows:

   Applicant:I still have that doubt it could be the police who had told them where I am I don't know still I have doubt

   Member:well if your family told the police that you gone to Goa. Goa has I don't know the exact number but my memory is it's about 20 million people who live in Goa may be more it's not like a small village where there is thousand people it's still a very big place and it is difficult to find someone so it is hard to understand how these people could easily find you.

   Applicant: Goa…

   Member:Just listen to the translation.

   Applicant: what you are saying is true but still I have doubt how they found me because I was staying at Goa's capital Panaji and how they found my address and how they approached me still I have doubts

4. In my view nothing on page 32 of the transcript evidences or establishes any disadvantage being caused to the Applicant. All the Tribunal is seeking to do is to ensure that the Tamil interpreter who was present had finished his or her translation of what the Tribunal member had said or asked before the Applicant began to answer.

5. The next highlighted passage relied upon by the Applicant is on page 40 of the transcript, in aid of his claim to have been emotionally upset at the end of the hearing. To set the context I reproduce part of pages 39 – 41, as follows:

   Member: Would you continue to give evidence in the police case?

   Applicant:I won't go because my situation is I can't go over there because I have to be alive before giving any evidence

   Member:so if you don't give evidence against them it wouldn't seem to be any reason why they would want to harm you is that apart from that

   Applicant:so what's going to happen to the injury I have. I am been attacked to this extent and I am been living in Australia with nobody. I don't have anyone here and all these things what's going to happen why I should go through this and you are saying I should have to go back to India to lose my life

   (page 39)

   Member:I am not saying anything to you Mr [SZVWC] all I am doing is just putting, to you one view of your evidence I haven't made up my mind I am just giving you the opportunity to respond to see issues with your evidence as I said to you it seem hard to understand how if you did go back to one of the other big cities how anyone could find you there that what I am asking you to explain to me. I am not saying I made up my mind

   Applicant:They will find me

   Member:Just listen Mr [SZVWC]

   Member:because I am required to consider that issue under the refugee definition in the migration act here. I have to consider that. If India was a tiny little country with not many people living in it that might be easier to me to see how someone would find you but considering the size of India as I explain before it is more difficult to understand it. I am not saying I don't accept that could happen. Look you are bit upset now so what we will do we will have a break for few minutes and then when we come back in you can collect your thoughts and may be you want to tell me some more information about that issue alright shall we do that

   Applicant:ok

   Member: ok let we do like we did before and I just wait you leave the room and alright thank you

   Member: The time is now 4:30 and the hearing has been adjourned for a short break the applicant and the interpreter had left the hearing room and I now stop the recording equipment

   H: All parties had entered the hearing room and the time now is 4:36 pm and the hearing now resume

   Member: alright you are ok to continue Mr [SZVWC]

   Applicant: ok

   (page 40)

   Member: Is there anything else you want to say to me about what we talking about before

   Applicant: You been telling me that I can move to different parts of the country and I can live there. I was thinking about that before but if I didn't had these injury and go through this pain I would have because that incident took me near to death so because of that, my fear increased and I am very scared of my life. If you check my passport you can find out that I had travelled to many countries I didn't know that I would be claiming refugee status like this in any country. I have studied I have education, skills but I couldn't live in my own country because I have threats to my life. My last child is going to be three years now I haven't even properly spend ten days with that child. I left my family and come to this country to protect my life so by coming to this country the only thing I have is my life but I don't have anything else. When I think about India I feel very scared about my life so if I can't live her or if I can't stay here I don't want to go back to India I may go to some other country. Instead of going back to India I may attempt suicide and kill myself.

   Member:Do you have the right to go to any other country that you know of?

   Applicant: No I don't have rights to go to any other country so the only mind is I have to live because I have fear about my life

   (page 41)

6. In my view there is nothing in the above passage of the transcript that indicates that the Applicant was unable to meaningfully participate in the Tribunal hearing. It is clear that the Tribunal member thought that the Applicant was upset at this point of the hearing, so a break was taken and upon the resumption of the hearing the Applicant indicated that he was able to continue. The balance of the transcript indicates that he made further coherent submissions to the Tribunal member before the hearing concluded.

Complaints in Paragraph 2 of the Applicant’s Affidavit of 27 July 2016

1. In [2] of his affidavit the Applicant invokes parts of the transcript at pages 37 and 38 as establishing that he never made the concessions recorded at [29], [30] and [53] of the Decision Record of the Tribunal.

Paragraph 29 of the Decision Record of the Tribunal

1. At [29] of the Decision Record of the Tribunal the Applicant is recorded as having said at the Tribunal hearing:

   [29]… He said it is true that he could go back and live outside Tamil Nadu but he can only speak English and Tamil and it would be difficult for him…

2. In my view [29] of the Decision Record of the Tribunal correctly reflects the evidence given at the Tribunal hearing as recorded at page 37 of the transcript, and in particular the following evidence of the Applicant in reply to the Tribunal member:

   Member:Alright the information I looked at about the legal system in India indicates that as a citizen of India there is freedom of movement for you so you are able to go and live anywhere in the country. Now part of that is that as a citizen you do not need to register with the police or the authorities if you move to a new area and give them your details. As you know India is the very big country and there are more than 1.3 billion people who live there in more than twenty seven thousand different towns and cities and villages. I think there are something like eight or ten cities that have more than ten million people living in each of those cities for example there is one very large city Hyderabad where there is a significant Muslim population live there which is long way from Nagore so at one view if you look at that information you would able to move to Hyderabad as an example don't have to register with the police it is a city of more than ten million people that would seem difficult to understand how anyone could find you if you did go there. What do you say about that?

   Applicant:What you told me Member is correct but I knew only Tamil and English and in Hyderabad they don't speak English and in Goa they speak English I don't think in any other places I can go and survive with English

   Member:I am not sure that's Mr [SZVWC] apart from Hindi English is consider to be the next language spoken throughout the country and my understanding is also in Hyderabad there is also significant Tamil population who live there.

   Applicant:can I talk?

   Member:of course

   Applicant:What you are saying Member is true other than Hindi most of the people throughout the country they speak English. The reason why I didn't move to other parts of India one of the reason is language I am not saying that is the only reason I can't move because even though I am been living away from my hometown in Goa they came looking for me and they came to kill me

Paragraph 30 of the Decision Record of the Tribunal

1. Paragraph 30 of the Decision Record does not in fact appear to contain any recorded admission or concession by the Applicant. It correctly records the tenor of the Applicant’s evidence in the highlighted passages appearing at pages 37 and 38 of the transcript, namely that he could not move to other parts of India because those seeking him would come and kill him and that to “go back from Australia to India it is equal to suicide myself”.

Paragraph 53 of the Decision Record of the Tribunal

1. Paragraph 53 of the Decision Record of the Tribunal records the Applicant as having accepted at the Tribunal hearing:

   [53]… that, with his education levels and work experience, he would be able to successfully relocate to one of those cities, despite his initial claim that his inability to speak Hindi would cause him problems…

2. In my view, [53] of the Decision Record correctly reflects and summarises the evidence given by the Applicant to the Tribunal at page 38 of the transcript. The Tribunal was considering whether it was reasonable and practical for the Applicant to relocate to avoid the possibility of harm which it had found he was at risk of in Tamil Nadu. The passage highlighted by the Applicant at page 38 of the transcript is as follows:

   Member:I am not seeing that they came to kill you it seems like they came to talk to you nothing happened to you and there are difficult to see anyway how they did find you and it would seems the only way they did is if someone gave them your exact address. It would seem if you did go back and you did move somewhere else such as Hyderabad or Chennai or Trivandrum in Kerala or Mumbai Bangalore and did not tell people in your home area exactly where you are living it seems difficult to understand how anyone could find you.

   Applicant: You can tell this but no one can live in this situation because first thing is it is very hard to live away from your home town and the other thing is they are determined to kill me. If I go back from Australia to India it is equal to suicide myself.

   Member:but you see you shown in the past that you were able to go and live in Singapore long way from your home town and you been living here long way from your home town so that shows that you have the ability and skills to do something like that. You are very educated and intelligent man you have set up your own business in a foreign country in Singapore. You been in business in Tamil Nadu and you worked in different jobs so you are someone with the skills to do these things

   Applicant:Yes what you are saying is true I am talented and have skills where ever I go I can survive but I didn't decide to come over here that's the decision I made when there was threat to my life the only thing that came to mind was I have to save my life so I have to get out of that place and go anywhere any country to save my life. It's the father who actually told me about this country that I can go there on the base of human rights I can live here peacefully so he is the one who told me about this country so I don't think I can go back to India and live there peacefully and safely

3. In my view none of the passages of the transcript relied upon by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error or that the Applicant was afforded procedural unfairness at the Tribunal hearing. The summaries of the evidence given by the Applicant at the Tribunal hearing, as recorded at [29], [30] and [53] of the Decision Record, seem to me to be fair and accurate. However, even if they were overstated in some regard that would not establish jurisdictional error, because the Tribunal for its other reasons found that it would be reasonable for the Applicant to relocate in India outside of Tamil Nadu.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application and the Amended Application filed in this court are to be dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 25 July 2019