FEDERAL COURT OF AUSTRALIA SZVED v Minister for Immigration and Border Protection [2016] FCA 907 Appeal from: SZVED v Minister for Immigration and Border Protection & Anor [2016] FCCA 801 File number(s): NSD 456 of 2016 Judge(s): GILMOUR J Date of judgment: 5 August 2016 Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2B)(a), 65, 91R(1)(b) Date of hearing: 5 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 35 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr M Wiese of Clayton Utz ORDERS NSD 456 of 2016 BETWEEN: SZVED Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GILMOUR J DATE OF ORDER: 5 AUGUST 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first respondent have 7 days to file a minute of proposed orders in regards to costs and an accompanying affidavit. 3. The appellant have 7 days from the date of service of the first respondent's minute of costs orders and affidavit to file any responding minute and/or affidavit evidence. 4. The issue of costs be decided on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GILMOUR J: 1 The appellant appeals from a judgment of the Federal Circuit Court delivered on 18 March 2016 dismissing his application for judicial review of a decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal), dated 3 September 2014. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) dated 16 March 2011 refusing to grant a Protection (Class XA) visa (protection visa) to the appellant. 2 The appellant's three stated grounds of appeal allege error by the Tribunal and not in terms by the primary judge. In two grounds, the appellant seeks essentially to re-agitate the allegations of error by the Tribunal that he made at first instance. In the Minister's submission, the primary judge was correct to dismiss those allegations. For reasons outlined below, the remaining ground of appeal is without merit. The appeal should therefore be dismissed with costs. Background 3 The following background is not contentious. 4 The appellant is a citizen of India who arrived in Australia on 29 November 2010 as the holder of a transit visa. On 6 December 2010, he lodged an application for a protection visa, which, following an interview on 16 March 2011, was refused. 5 The appellant sought review of the delegate's decision and on 22 August 2012, the Tribunal affirmed the delegate's decision. The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court. On 5 February 2013, the matter was remitted to the Tribunal for the reason that the Tribunal had not given the appellant an opportunity to advance claims concerning the complementary protection criterion for a protection visa in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). 6 The appellant attended a hearing before the Tribunal conducted on 13 January and 13 March 2014. Subsequently, his matter was allocated to a different Tribunal member and a further hearing took place via videoconference on 11 August 2014. The Tribunal on 3 September again affirmed the delegate's decision. Protection visas 7 The Minister correctly submitted the following summary of the relevant provisions concerning the grant of a protection visa. 8 The relevant criteria for the grant of a protection visa in this case are contained in ss 36(2)(a) and 36(2)(aa) of the Act. An applicant may be granted a protection visa if the Minister (or his delegate) is satisfied that the applicant is owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (Refugees Convention criterion): s 36(2)(a). One element of this criterion is that the applicant has a well-founded fear of persecution involving serious harm (see also s 91R(1)(b)). An applicant who does not satisfy the Refugees Convention criterion may nevertheless qualify for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk of significant harm to the applicant (complementary protection criterion): s 36(2)(aa). 9 It is well established that, under the Refugees Convention criterion, a person will not satisfy the criterion if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country where there is no appreciable risk of the occurrence of the feared persecution. A similar principle (the 'relocation principle'), operates in respect of the complementary protection criterion by virtue of s 36(2B)(a). 10 Under s 65 of the Act, the Minister (or his delegate) must refuse to grant a visa if the applicant does not meet the criteria for the visa for which he or she has applied. Appellant's claim 11 The appellant submitted written claims to the delegate on 6 December that: (a) as a young adult, he attended a Christian retreat, following which he began preaching about Christ within his community. His preaching was not welcomed by those to whom he preached; (b) he began working with an evangelical Christian fellowship, which preached to non-Christian societies in his home state of Kerala and other states of India. The preaching of the fellowship was effective in causing Hindus and Muslims to convert to Christianity. At the hearing on 11 August 2014, he claimed that he had a leadership role in the work of the fellowship; (c) two Hindu political parties, the BJP and RSS, wanted to destroy the fellowship and used the police force and their own operatives to do so; (d) on one occasion he and other members of the fellowship were stopped by members of the BJP and RSS after a bible convention. He and his colleagues were beaten by their assailants. The appellant and his colleagues complained to the police but did not receive any assistance; (e) he and his colleagues continued preaching at conventions, and on each occasion were confronted by "rebels" who threw stones and would hit the Christians; (f) on one such occasion a group of BJP activists attended a convention and attacked him and his colleagues. The police intervened but arrested the Christians. He and his colleagues were beaten by the police and he was detained for 3 days; (g) while he was away from home receiving treatment after the above incident, a group of 10 to 15 BJP activists visited his home, asking for him and destroying his belongings and attacking his family members. The activists threatened to kill him; (h) he then travelled to Kochin (a city in Kerala) and subsequently travelled to Australia; and (i) he feared that he would be killed if he returned to India. Tribunal's proceedings 12 The Tribunal concluded that the appellant's claims were consistent with the country information concerning incidents of harm perpetrated against evangelical Christians in the states of Kerala and Karnataka. The Tribunal went on to accept the key elements of the appellant's claims of past harm. It therefore accepted that "now and in the reasonably foreseeable future, the [appellant] faces a real chance of persecution for reasons of his religion at the hands of Hindu extremist groups in his home state of Kerala". The Tribunal made a comparable finding under the complementary protection criterion for a protection visa. 13 However, the Tribunal considered that it would be reasonable for the appellant to move to another part of India, the neighbouring state of Tamil Nadu, where he would not be at a relevant risk of harm. 14 Thus, the Tribunal concluded that the appellant did not meet the criteria for the grant of a protection visa and affirmed the delegate's decision. Federal Circuit Court proceedings 15 The grounds of review alleged error affecting the Tribunal's finding that the appellant could reasonably locate to Tamil Nadu. The appellant also challenged the Tribunal's finding that he was not a leader of any evangelical group. Leadership role 16 As to the Tribunal's finding that the appellant did not have a leadership role in his evangelical group, the primary judge noted that the Tribunal had found that the appellant's evidence going to this issue was vague. He was unable to provide details of his role. Indeed he was unable to articulate his mode of evangelising when asked, and said that "he was not trying to convert people". 17 His Honour concluded that there was no relevant error on the part of the Tribunal and concluded that "it was reasonably open to the Tribunal to find that [the Appellant's] evidence was inconsistent with his claim to have been a leader of the evangelical group." Relocation 18 The primary judge observed that the appellant's claimed leadership role was relevant to the question of relocation, because the Tribunal found that, as the appellant was not a leader, the groups from whom he feared harm in his home state of Kerala would not be motivated to pursue him to another state. 19 The appellant took further issue with other aspects of the Tribunal's application of the relocation principle. Four allegations in particular were considered by the primary judge: (i) that the Tribunal failed to consider the power of Hindu extremists throughout India, including in Tamil Nadu; (ii) that the appellant had told the Tribunal that he was followed by extremists to Chennai in Tamil Nadu when he shifted there from his home state, and it was therefore not open to the Tribunal to be satisfied that he would be safe there; (iii) that the rate of attacks against Christians in Tamil Nadu was higher than in Kerala; and (iv) that the Tribunal failed to consider in the context of relocation the appellant's claims and evidence that he was attacked in Karnataka, outside his home state. 20 The appellant did not point to any evidence before the Tribunal which he alleged the Tribunal did not consider concerning the first allegation. The primary judge had regard to the Tribunal's reasons for decision where it had taken into account country information concerning Christians in states of India other than Kerala, including Tamil Nadu, as well as the appellant's stated concern when relocation to Tamil Nadu was put to him at the Tribunal hearing, namely that he would be targeted and killed by extremists if he relocated there. The primary judge found that the Tribunal's conclusion that the appellant could practice his religion as he had done in the past in Tamil Nadu, without facing a real chance of persecution or a real risk of serious harm, was reasonably open to it. 21 As to the second allegation, the appellant gave evidence to the Tribunal that nothing had happened to him whilst he was in Chennai. The primary judge considered this evidence and found that the Tribunal was entitled to proceed on the basis of it. His earlier written evidence that he had been followed to Chennai was not necessarily inconsistent. Moreover, the Tribunal had independent reasons for concluding that the appellant would not be followed to Chennai if he relocated there after returning to India in the future. The appellant's earlier evidence that he had been followed to Chennai did not require a different conclusion. 22 As to the third allegation, there was no evidence before the Tribunal of the alleged fact. 23 As to the fourth allegation, the appellant did not, in his alleged grounds of review or in submissions to the Court, identify the relevance of the attack in Karnataka, which the Tribunal accepted had occurred, to the Tribunal's consideration of relocation to Tamil Nadu. 24 There being no jurisdictional error by the Tribunal the application for judicial review was dismissed with costs. Notice of appeal 25 The notice of appeal contains three grounds: "1. The honourable AAT member did not study my case or refer my supporting documents properly. 2. The honourable member failed to study about the attacks against the Christians in Tamilnadu. 3. The honourable member failed to consider my evangelical abilities." Consideration 26 None of the grounds of appeal allege error by the primary judge. Rather, they allege error by the Tribunal. Grounds 2 and 3 concern issues considered by the primary judge. Ground 1 raises an issue that was not raised before the primary judge. Ground 1 27 The Minister submits that the appellant should be refused leave to raise an allegation of this nature in circumstances where no indication is given of the documents before the Tribunal to which it is said the Tribunal failed to make reference, and no indication is given as to why the Tribunal should have referred to them. Neither was this task undertaken before the primary judge. 28 The ground is too vague to be meaningful. No relevant error has been established. Ground 2 29 Again the appellant did not develop this complaint by, for example, pointing to what it is the Tribunal should have studied. 30 The Tribunal, I accept, was not required to undertake any 'study' beyond considering country information upon which relevant findings could be made; and further by putting to the appellant the substance of that information to give him an opportunity to give evidence and present arguments on the issue. The primary judge found, concerning the issue of relocation, that the Tribunal had done both and had made findings taking that information into account. No relevant error has been established. Ground 3 31 The Tribunal specifically considered the appellant's evidence about his mode of evangelising which was acknowledged by the primary judge. No relevant error is established. Other matters 32 Whilst the appellant did not file any written submissions he made oral submissions through an interpreter. These, in substance, sought merits review of the Tribunals decision. He continued to assert as he had before the Tribunal that he would be at risk of harm were he to relocate to the State of Tamil Nadu. He also said that he did not speak the language of that State which would mean it would be different for him to gain employment. 33 The Tribunal took all of these matters into account in its reasons, particularly at [54] where it noted the significant number of Christians living in that State; the sizeable number, in excess of 500,000, who speak his language of Malayalam there; as well as the fact that the appellant had stayed in Chennai in that State in 2010. Further, it noted that unemployment is low; the appellant was a skilled welder; had no family to support and had previously worked overseas including for a period of six years in the UAE. 34 No jurisdictional error on the part of the Tribunal was exposed by these complaints nor any related appealable error by the primary judge. Orders 35 There will be the following orders: (1) The appeal be dismissed. (2) The first respondent have 7 days to file a minute of proposed orders in regards to costs and an accompanying affidavit. (3) The appellant have 7 days from the date of service of the first respondent's minute of costs orders and affidavit to file any responding minute and/or affidavit evidence. (4) The issue of costs be decided on the papers. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 5 August 2016