DQV20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs - [2021] FCCA 823

FEDERAL CIRCUIT COURT OF AUSTRALIA
DQV20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 823

File number: PEG 239 of 2020

Judgment of: JUDGE KENDALL

Date of judgment: 28 April 2021

Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal overlooked evidence – no jurisdictional error – application dismissed.

Legislation: Migration Act 1958 (Cth), ss 5AAA, 36, 104, 423A, 424AA, 424A, 425, 429A, 476

Cases cited:
Abebe v The Commonwealth [1999] HCA 14

Craig v State of South Australia (1995) 184 CLR 163

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759

Minister for Immigration & Border Protection v Singh [2014] FCAFC 1

Minister for Immigration & Citizenship v Li [2013] HCA 18

Minister for Immigration & Citizenship v SZKRT [2013] FCA 317

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24

Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 301

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Number of paragraphs: 186

Date of hearing: 21 April 2021

Place: Perth

Applicant: Appeared in person

Counsel for the First Respondent: Ms G Ellis

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Sparke Helmore Lawyers
ORDERS

PEG 239 of 2020

BETWEEN:
DQV20

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

28 APRIL 2021

THE COURT ORDERS THAT:
1.The application be dismissed.

REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION

The applicant is a citizen of India. He arrived in Australia in May 2009 on a student visa (Court Book (“CB”) 21). In February 2010, that visa was cancelled. It appears the applicant was subsequently granted a bridging visa (CB 251).
On 23 September 2015, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-234). In summary, the applicant claimed to fear harm as a result of his relationship with a Hindu woman (noting that he is Sikh) and because of his “mathematical skills and research”. He claimed that the brother of the woman he had had a relationship with had threatened to kill him and that his peers were jealous of his skills and might, as a result, harm him.
On 6 January 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 247-257). The delegate was not satisfied that the applicant feared harm for reason of his race, nationality, religion, political opinion or membership of a particular social group. Nor, it was determined, would the applicant be denied state protection for any reason. The delegate found that the applicant could access the Indian Police Service who would provide protection – such that no real risk of harm would arise if the applicant returned to India.
On 2 February 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 258-266).
On 16 March 2020, the Tribunal received written submissions and a number of supporting documents from the applicant (CB 281-356). The supporting materials included media articles and email exchanges with universities about the applicant’s research.
On 12 May 2020, the applicant attended a hearing before the Tribunal (CB 373-375). The hearing was conducted by telephone and was adjourned to another day.
On 16 July 2020, the applicant attended a further hearing before the Tribunal (CB 386-388). That hearing occurred via Microsoft Teams.
The Tribunal made an oral decision at the conclusion of the hearing on 16 July 2020 (CB 392).
On 5 August 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 9 pages long and spans 68 paragraphs. As noted above, the Tribunal gave an oral decision at the conclusion of the hearing on 16 July 2020. A written statement was made on 30 July 2020.
The Tribunal began by noting that an oral decision had been made at the hearing on 16 July 2020 and that the statement had been delivered to the applicant in person at that hearing (at [1]-[5]).
The Tribunal’s decision begins with a broad overview of what is required in order to be granted a protection visa.
The Tribunal confirmed that it had taken into account the Ministerial policy guidelines and the relevant Department of Foreign Affairs & Trade country information (at [6]-[7]). The Tribunal also had regard to the COVID-19 Special Measures Practice Direction – Migration and Refugee Division and the Conducting Migration and Refugee Reviews Practice Direction (at [8]).
The Tribunal then gave a detailed summary of principles relating to credibility (at [9]-[14]), making reference to relevant case law and to the Tribunal’s credibility guidelines.
The Tribunal also discussed ss 5AAA, 104 and 423A of the Act. These provisions make it clear that it is the responsibility of an applicant to prepare and present their case and to identify their claims and ensure accuracy in the information provided (at [15]-[18]). The Tribunal noted that applicants who do not initially present all claims and evidence must have a reasonable explanation for not doing so (at [19]).
The Tribunal then outlined the background to the application, including when the applicant arrived in Australia and detailing the findings made by the delegate (at [20]-[24]).
The Tribunal explained that the applicant appeared at two hearings (one by telephone and one by video) and that he was assisted by an interpreter (at [25]-[26]).
Overall, the Tribunal was satisfied that the applicant was an Indian citizen and that no consideration of s 36(3) of the Act was necessary (at [27]-[29]).
The Tribunal then provided an overview of what occurred at the first hearing on 12 May 2020. It noted that the applicant had confirmed that the delegate’s summary of his claims was accurate and that he had no further claims (at [31]).
The Tribunal explained to the applicant issues that it had with his application – including the delay in applying for protection, the fact that it did not appear that the applicant’s level of harm amounted to a real chance or real risk and that effective state protection or third country protection might also be available (at [32]-[34]).
The Tribunal also confirmed that it had received the documents sent on 16 March 2020 and that no further documents were provided after the first hearing (at [35]-[36]).
The Tribunal then gave an overview of the second hearing on 16 July 2020. It noted that the applicant again confirmed that he had nothing further to add to his claims (at [37]). The applicant had brought two books to show the Tribunal. One was a book of poetry that the applicant confirmed had no relevance to his claims (at [38]). The other was a book of mathematics which the Tribunal accepted would demonstrate that the applicant was a talented mathematician (at [39]).
The applicant told the Tribunal that his mother and father had passed away and that, after talking to his migration agent about whether he should return for their funeral, decided for “no particular reason” that he would not do so (at [42]). The Tribunal noted the applicant’s evidence that this caused some tension in the family (but that he maintains regular contact with the family) (at [43]).
The applicant also confirmed that he continued to practise his Sikh faith but does not wear the traditional head covering or allow his hair to grow in the traditional way. His evidence was that he preferred to devote his time to his studies. The Tribunal accepted that the applicant was a sincere Sikh (at [45]).
The Tribunal noted that the applicant had claimed that he had been in a relationship with a Hindu woman since 2005 but that the last time the two saw each other was in 2008

(at [46]-[47]). The applicant’s evidence was that the woman’s family were against mixed faith marriages and there were also inter-caste issues.
When asked about supporting evidence of continued contact, the applicant stated that he last had electronic communication with the woman in 2016 and regularly speaks to her by public telephone (at [48]).
While the applicant initially stated that he learnt from his family that the woman’s family were making threats against him, the applicant later indicated that no threats had been made against his family (at [49]).
The Tribunal continued:
50. I pointed out to you that your evidence relating to having a continuing relationship with this person was lacking in credibility. I noted that it was improbable that you chose to continue to contact her by public telephone when you had a telephone of your own. I pointed out to you that the amount of evidence that you had to support such an important aspect of your claim to hold a continuing well-founded fear of persecution or significant harm in India appeared to be inadequate.
51. You asserted that this relationship is still continuing and that the threat of harm you claim to fear still applied. Despite this, I note that, even by your own evidence, there has been no contact between you and this person’s brother since 2006, which is at least 14 years ago.
The Tribunal found the applicant’s claim to be in a relationship with a Hindu woman not to be credible. In this regard the Tribunal noted that the applicant had not had any online communication with the woman since 2016 and had not received any threats as a result of the relationship since 2006 (at [52]).
The Tribunal noted that there was no evidence of the applicant having published any mathematical papers beyond his thesis (at [53]). The applicant explained that he had not done so because, if he had done so, he would have divulged his location and this would have created a threat. Further, he contended that his work might be plagiarised (at [54]).
The Tribunal found as follows:
55. On the basis of your evidence, I find that you are a student of mathematics but that you have not published in any recognised scholarly forum. There is nothing before me on the evidence you have provided to suggest that any person would take any interest in your work as a mathematician for any reason in any country. Accordingly, I find that your core claim for protection in Australia lacks credibility
The Tribunal then identified that there had been a delay of six and a half years in applying for protection and that it was reasonable to expect a person who genuinely fears harm to seek such protection at the first opportunity (at [56]-[57]). The Tribunal found the applicant’s failure to do so suggested that his claims lacked credibility (at [58]).
The Tribunal continued:
59. I have had regard to the circumstances you have described to me about your relationship and your status as a talented mathematician. Having carefully considered the claims contained within your original application for protection, and your subsequent application to the Tribunal, as I have expressed to you, I have considerable doubts about the credibility of your evidence and your claims about your perceived harm in India, now and in the reasonably foreseeable future. These credibility concerns are, as I have said, exacerbated by your extended period of residence in Australia before seeking protection.
60. In light of these considerations, I find that your core claims to fear either a real chance of serious harm, or a real risk of significant harm, in India for any reason from any person at any time are not credible
As the applicant had failed to demonstrate a subjective well-founded fear of persecution, the Tribunal found that he did not meet s 36(2)(a) of the Act (at [61]). The Tribunal also determined that the applicant did not have a subjective fear of significant harm in light of the credibility findings made by the Tribunal (at [62]).
The Tribunal concluded:
63. On the evidence, I also find that there is no real risk that you would be significantly harmed by any person, for any reason, in India now or in the reasonably foreseeable future. Taking your claims at their highest, first individually and then cumulatively, they remain largely unsupported by corroborating evidence and are, in important respects, unsatisfactory and lacking in appropriate corroboration.
Overall, the Tribunal was not satisfied that the applicant met the refugee criterion, the complementary protection criterion or that he was the member of a family unit of a person who did so (at [64]-[66]).
As the Tribunal had found that the applicant did not meet s 36(2), it was unnecessary to consider s 36(3) of the Act (at [67]).
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [68]).
PROCEEDINGS IN THIS COURT
In his application for judicial review dated 5 August 2020, the applicant raises five grounds of review, as follows:
1. The Tribunal was not procedurally fair to me because the Member did not attempt to understand clearly the circumstances of my situation which cause me to fear for my life in India. The Member heard me orally only for 30 minutes although the hearing was scheduled for 3 hours.
2. The Tribunal failed to clearly understand the circumstances of my current relationship with my girlfriend in India. I was not given procedural fairness in allowing me to explain clearly our situation at the hearing
3. The translator failed to translate adequately the circumstances of my situation at the hearing. The final hearing took only thirty minutes but the oral decision given on the same day of the hearing took about an hour. The written decision was given to me about two weeks later.
4. The Tribunal did not take seriously into consideration my original academic work in mathematics and in poetry both of which are related intimately to the fear I have for my life if I returned to India.
5. The Member tended to be dismissive of all the claims I have made about why I need Australia’s protection vis-a-vis my detailed written submissions supported by objective evidence.
The applicant also provided an affidavit affirmed 5 August 2020 which provides as follows:
1. I applied for a student visa subclass 572 in India which was granted around April 2009 by the Department of Immigration and Citizenship.
2. I arrived in Australia on [omitted] to commence my studies in Diploma in Business with College of Innovation & Industry Skills, Gosnells, WA.
3. Unfortunately my college terminated my enrolment around January 2010 raising concerns about my performance at the college.
4. The Department cancelled my visa on 25 February 2010 on grounds of the termination of my enrolment by the college.
5. I decided appeal to the Migration Review Tribunal on 3 May 2010. The tribunal held a hearing on 18 July 2010. Unfortunately the tribunal affirmed the delegate’s decision to refuse my student visa on 29 November 2010.
6. I overstayed in Australia with effect from 26 December 2010. I decided not to go back to India as my life was in danger in India.
7. Eventually on 20 September 2015 I made an application with the department for a protection visa under Australia’s complementary protection scheme.
8. Unfortunately my protection visa application was refused by the delegate on 6 January 2017.
9. I sought a review of the delegate’s decision shortly after the delegate’s refusal.
10. A hearing was held on 12 May 2020 and a second hearing was held on 16 July 2020.
11. Unfortunately the Tribunal affirmed the delegate’s decision on 16 July 2020. Attached at Annexure marked “A” is a copy of the Tribunal’s decision for the information of the Federal Circuit Court.
12. I believe the tribunal made an unfair decision as it did not give me a fair hearing. I believe I wasn’t given proper procedural fairness at the hearing. The tribunal not accept that my life was in danger contrary to the delegate’s view. The delegate did imply that my life was in danger but that I could get adequate state protection in India. I believe that my life will be indanger in India and that I will not get state protection based on my submissions to the tribunal. The tribunal did not consider my protection claims seriously and denied me procedural justice.
13. I am now appealing to the Federal Circuit Court to give me a fair hearing with a view to persuading the delegate to grant me a protection visa to stay permanently in Australia in safety.
The applicant was given an opportunity to file any amended application, supporting affidavits and an outline of submissions. While filed outside of the time provided for in the orders made by a Registrar of this Court, the applicant did file written submissions on 26 March 2021.
The Court will refer to the content of these documents in the consideration that follows.
The materials before the Court include those set out above, a Court Book numbering 410 pages (marked as Exhibit 1), an outline of written submissions filed by the Minister on 25 March 2021 and an outline of written submissions filed by the applicant on 26 March 2021.
The applicant appeared before this Court without legal representation. He was assisted by a Punjabi interpreter. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the Tribunal fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].

The Court also explained that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stressed that the hearing time “was just half an hour” and he “did not have time to explain [his] case”. The applicant noted that he had “two claims” – one relating to his “relationship” and one related to his “mathematical abilities” but that the Tribunal “took only half an hour to consider and discuss these claims”.
The Court will address these concerns below in relation to grounds 1, 2 and 4.
The applicant also noted that the Tribunal and the delegate had determined that he did not have an “objective fear”. He stressed that the Tribunal ignored the objective evidence that he had provided “such as a police report” and explained that he could only give his evidence verbally. Overall, the applicant argued, the Tribunal did “not consider the evidence given at the hearing”. In this regard, he also highlighted that the Tribunal did not consider the emails between him and his professor and only called him a “mathematics student” (which, he stressed, “is incorrect”). Finally, in reply submissions, the applicant explained why there “had been a delay in applying for protection” and why he “had not published any works”.
The Court will address these submissions below when addressing arguable grounds of review in the applicant’s written submissions to the Court.
CONSIDERATION
Ground 1
Ground 1 provides:
The Tribunal was not procedurally fair to me because the Member did not attempt to understand clearly the circumstances of my situation which cause me to fear for my life in India. The Member heard me orally only for 30 minutes although the hearing was scheduled for 3 hours.
The applicant appears to be arguing that because the Tribunal hearing only lasted for 30 minutes (noting that it “was scheduled for 3 hours”) the Tribunal did not take the time to clearly understand the applicant’s situation. Before this Court, the applicant repeated his claim that he did not have enough time to explain his case.
There is no statutory time limit or required duration for a hearing before the Tribunal. Rather, s 425 of the Act requires:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
It is well accepted that the hearing referenced in s 425 of the Act must present “a real and meaningful opportunity for the applicant to make arguments and present evidence”. It must not be a “hollow shell” or an “empty gesture”: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31].
Here, the applicant was invited to two hearings. The first occurred on 12 May 2020. The second occurred on 16 July 2020. The first hearing was 33 minutes long (CB 373-375). The second hearing was 40 minutes long (not including the oral decision). The applicant is thus incorrect when he says that the Tribunal only heard him for 30 minutes. The Tribunal heard from the applicant for over one hour.
It is true that the first hearing invitation advised the applicant that he should be available for two hours. The second hearing invitation stated that the “estimated duration” for the hearing was 3 hours. These statements are, however, “indications”. As noted, there is no statutorily mandated period of time during which a hearing must occur. The time allocated for a hearing is a matter for the individual Tribunal member and depends, largely, on the facts of each case. The fact that the Tribunal’s invitation letter estimated the duration of the hearing to be greater than was actually required on the day does not establish that the applicant was denied procedural fairness.
The critical issue is whether the applicant had a real and meaningful opportunity to present his arguments and evidence.
There is nothing to suggest that the Tribunal denied the applicant the opportunity to provide evidence and arguments. Rather, it appears that the applicant was given various opportunities to provide information and add to his evidence. Arguably, he declined to do so. For example:
(a)at the first Tribunal hearing, the Tribunal “read back” to the applicant the claims he had made to the delegate and asked him if there was anything that he wanted to add to his claims. He responded “no”. The Tribunal also asked the applicant if he was content for the Tribunal to proceed on the basis of the information before it. The applicant responded “yes” (at [31]). The applicant made no attempt to explain his circumstances to the Tribunal;
(b)at the first hearing the Tribunal explained its concerns to the applicant and provided him with an opportunity to file further written submissions (at [32]-[36]);
(c)at the second Tribunal hearing the Tribunal again confirmed whether the applicant had anything he wanted to add. The applicant indicated he was happy to proceed (at [37]);
(d)the Tribunal recognised that the applicant wanted to show it further evidence and, after discussing that evidence with the applicant, the Tribunal accepted what was contained in the evidence and what it demonstrated (i.e., that the applicant was a talented mathematician)(at [38]-[39]);
(e)the applicant provided information to the Tribunal about his Sikh religion (at [44]-[45]) and the circumstances of his relationship with a Hindu woman (at [46]-[52]); and
(f)the Tribunal asked a number of questions of the applicant throughout the hearing in an attempt to understand his concerns and extract further detail about his claims. The applicant responded to those questions and provided explanations to any concerns raised (see, for example, [40], [42], [48] and [53]).
It is evident from the above that the applicant had a real and meaningful opportunity to participate in the hearing. The fact that the hearing was (according to the applicant) “short” can be attributed to the fact that the applicant had nothing further to add or say in relation to his claims. He confirmed this to the Tribunal on two occasions.
The Tribunal’s decision also demonstrates that the Tribunal made a number of attempts to understand the applicant’s circumstances and to allow him the opportunity to explain those circumstances. The Tribunal asked questions relevant to the claims raised in order to test them and to inform itself of relevant details which might assist it in its determination.
Finally, it is for the applicant to advance the evidence and arguments needed to satisfy the relevant visa criterion: Abebe v The Commonwealth [1999] HCA 14. The Tribunal need not take an active role or elicit further information from an applicant so that they are better able to “put” their protection claims. It is the applicant’s role to ensure that the Tribunal properly understands what is being claimed and has all of the information needed to make a determination.
The Tribunal did not deny the applicant procedural fairness. The two hearings attended by the applicant gave him ample opportunity to present evidence and make arguments. The Tribunal made every effort to assist the applicant and gave him every opportunity to explain his claims in a way that allowed the Tribunal to understand what was being claimed.
No error arises in this regard. Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
The Tribunal failed to clearly understand the circumstances of my current relationship with my girlfriend in India. I was not given procedural fairness in allowing me to explain clearly our situation at the hearing
The Court has found above that the Tribunal did not deny the applicant procedural fairness. Rather, the Tribunal gave the applicant ample opportunity to clearly explain his situation.
In ground 2, the applicant more specifically states that he was not given procedural fairness in relation to his claim to fear harm because he had been in a relationship with a Hindu woman.
For the reasons given above in relation to ground 1, the Court finds that the applicant was provided procedural fairness and had ample opportunity to clearly explain his concerns about his alleged relationship with a Hindu woman.
More specifically, in relation to the particular claim referred to in ground 2, the Court notes the Tribunal’s reasons at [46]-[52] as follows:
46. You stated that when you were studying for your Masters’ degree in mathematics, you met your girlfriend (the girl who you claim as your girlfriend) in 2005. You were threatened by her brother because they are a Hindu family and they did not approve of mixed faith marriages or relationships, and that there was an element of inter-caste issues in this relationship as well.
47. The last time you saw this woman was in 2008. You claimed to have been in constant contact with her since leaving India, and that you were still in a relationship with her.
48. I asked for you to provide some evidence supporting your claims to be in contact with this person. You say that you last had electronic communication with her in 2016, but you speak to her regularly by public telephone.
49. Initially you said that her family were still making threats against you, and you have heard about this through your family. On further questioning you indicated that no threats were made against your family in India.
50. I pointed out to you that your evidence relating to having a continuing relationship with this person was lacking in credibility. I noted that it was improbable that you chose to continue to contact her by public telephone when you had a telephone of your own. I pointed out to you that the amount of evidence that you had to support such an important aspect of your claim to hold a continuing well-founded fear of persecution or significant harm in India appeared to be inadequate.
51. You asserted that this relationship is still continuing and that the threat of harm you claim to fear still applied. Despite this, I note that, even by your own evidence, there has been no contact between you and this person’s brother since 2006, which is at least 14 years ago.
52. Also, by your own evidence, you have had no online communication with this person who you claim to be your girlfriend, since 2016. On the basis of this evidence, I do not find that your claims to be in a continuing relationship with this person, or to have received any threats from this person’s family since 2006, to be credible.
It is apparent that the Tribunal discussed the applicant’s claim to fear harm as a result of his relationship with a Hindu woman in some detail. The information that the Tribunal refers to (about the extent of communication between the applicant and his alleged girlfriend) was information that had to have been provided at the hearing. It is not found elsewhere in any of the written materials that the applicant provided to the Tribunal. It is clear that the applicant was given an opportunity to detail his claim to harm as a result of his relationship.
It is also apparent that the Tribunal gave the applicant procedural fairness more generally. Relevantly, the Tribunal:
(a)identified the concerns it had with the applicant’s claims at the first hearing and gave the applicant an opportunity to prepare any written submissions, obtain any evidence and attend a second hearing (at [32]-[36]); and
(b)put to the applicant at the second hearing that his evidence about his relationship with his girlfriend seemed improbable and lacked credibility and invited the applicant to respond to those concerns. The applicant then did so (at [50]-[51]).
The materials before the Court demonstrate that the applicant was given ample opportunity to clearly explain his concerns about his alleged relationship with a Hindu woman in India. The Tribunal took into account the information the applicant provided, invited the applicant to comment on the concerns that it had and made a determination on the credibility of the claim (as it was required to do).
It is noted that the applicant did give the delegate a police report which indicated that in 2008 the applicant had made a complaint against his alleged girlfriend’s brother. The Tribunal did not refer to this document. The Court will address this further below.
The applicant was not denied procedural fairness. He was given the opportunity to clearly explain his situation and his concerns. If he did not do so at the time the opportunity was extended (which, here, occurred on multiple occasions prior to, during and between hearings) that is a matter for him. In effect, the applicant is disagreeing with the fact that the Tribunal did not accept that he was in a continuing relationship with a Hindu woman. Disagreement does not amount to jurisdictional error.
Ground 2 is dismissed.
Ground 3
Ground 3 states:
The translator failed to translate adequately the circumstances of my situation at the hearing. The final hearing took only thirty minutes but the oral decision given on the same day of the hearing took about an hour. The written decision was given to me about two weeks later.
To the extent that ground 3 again takes issue with the hearing being 30 minutes long, for the reasons given in ground 1, this does not amount to jurisdictional error.
The applicant asserts that the interpreter did not adequately translate his evidence. It is noted that a different Punjabi interpreter assisted the applicant at each hearing. The applicant has not indicated which hearing is of concern here. More critically, the applicant has not given a copy of the Tribunal transcript to the Court with independent translations. The Court cannot, in those circumstances, make any determination that the proceedings were not “sufficiently translated”.
The applicant’s claim that the interpreter did not translate adequately is unsupported by the evidence before the Court. The Tribunal’s decision records the questions that were put to the applicant and his responses. There is nothing to suggest that the applicant misunderstood the questions. His responses were directly relevant to what was asked (see, for example, [31], [37], [40], [42]).
The Court is satisfied that the applicant’s evidence was translated adequately. The applicant was given an opportunity to give evidence and present arguments and to have those matters communicated to the Tribunal. Further, on the available evidence, matters of concern were communicated to him and he was given an opportunity to respond.
The applicant also raises concerns about the length of the Tribunal’s decision. He contends that the hearing took 30 minutes but stresses that the oral decision took about an hour.
This assertion is, in fact, unsupported by the evidence. The hearing record indicates that the Tribunal’s oral statement of reasons began at 11.03am and finished at 11.23am (CB 388). Accordingly, the oral statement took only 20 minutes.
In any event, even if the oral decision took longer than the actual hearing this does not amount to jurisdictional error. There is no statutory requirement that oral decisions run for a set period of time.
Finally, the applicant states that he did not receive the written statement for a further two weeks. This is correct. The written statement was provided to him on 30 July 2020 (14 days after the hearing). However, there is no jurisdictional error in the Tribunal’s conduct in this regard. As per s 430D(4) of the Act, the Tribunal must provide a written statement if the applicant requests one. If the applicant requests such a statement, then the Tribunal must provide it within 14 days of that request. On 16 July 2020, the applicant requested a written statement. He was provided that statement on 30 July 2020 (the 14^th day after the request was made). Accordingly, the Tribunal complied with s 430D(4) and nothing arises from the fact that the applicant waited 2 weeks for a written decision.
In any event, even if the Tribunal had not provided the written statement within 14 days, this would not amount to jurisdictional error or invalidate the Tribunal’s decision: the Act, s 430D(7). This might be relevant if, for example, an applicant required an extension of time to file his application for judicial review in this Court but any breach of the sort advanced here would have no bearing on whether the Tribunal’s decision is infected by jurisdictional error.
Ground 3 is dismissed.
Ground 4
Ground 4 provides:
The Tribunal did not take seriously into consideration my original academic work in mathematics and in poetry both of which are related intimately to the fear I have for my life if I returned to India.
The Tribunal’s consideration of the applicant’s academic and poetry work is borne out in the following passages:
38. In the course of the hearing you did indicate that you had brought two books that you would like me to view. We discussed whether or not this was necessary. You indicated one of these documents was a book of poetry which had no relevance to your application for protection, and the other was a book you had written relating to mathematics.
39. I indicated to you that I was prepared to accept that you were a talented mathematician; that you had qualified in mathematics from Indian universities. You accepted that there was nothing further that could be demonstrated by this book, and therefore I am prepared to accept that you offered the book and that it supports what I have already found to be the case.
…
53. I also discussed with you the claims you have made to be a talented mathematician living under constant threat in India because of the jealousy of other mathematics students in that country. I pointed out to you that there was no evidence online of your having published any mathematics papers in any forum at any time beyond your thesis.
54. Your evidence to me was that you could not publish anywhere, because to do so would be to divulge your location, and that this would create a threat to you. You also indicated that you were concerned that your work would be plagiarised and stolen by others, and this was why you decided to leave India and not publish in that country.
55. On the basis of your evidence, I find that you are a student of mathematics but that you have not published in any recognised scholarly forum. There is nothing before me on the evidence you have provided to suggest that any person would take any interest in your work as a mathematician for any reason in any country. Accordingly, I find that your core claim for protection in Australia lacks credibility.
Insofar as the applicant states that the Tribunal did not “seriously” take into account his poetry, this is true. The reason for this (as is stated in [38] of the Tribunal’s decision) is that the applicant himself stated that the poetry had no relevance to his claims for protection. The applicant cannot, on judicial review, recant this statement. The applicant advised the Tribunal that his poetry was not relevant. It was thus open to the Tribunal to disregard it from any further consideration.
In relation to the applicant’s claims to be at a risk of (or chance of) harm because of his mathematical abilities, it is clear that the Tribunal gave this consideration. The Tribunal accepted that the applicant was a “talented mathematician”. It assessed whether he faced a risk or chance of harm on the basis of that accepted fact. The Tribunal explored the applicant’s circumstances and the reasons why this allegedly caused him to fear harm. Ultimately, the Tribunal was not satisfied that the applicant was of interest because of his mathematical talents.
The Tribunal’s consideration of the applicant’s mathematical claim was “serious”. Again, the applicant simply disagrees with the Tribunal’s finding that his fear of harm was not “credible” or did not provide a sufficient basis to conclude that he had a real risk or real chance of harm.

No error arises in this regard. Ground 4 is, accordingly, dismissed.
Ground 5
Ground 5 provides:
The Member tended to be dismissive of all the claims I have made about why I need Australia’s protection vis-a-vis my detailed written submissions supported by objective evidence.
The Court understands this to be an allegation of bias.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that the Tribunal:
(a)in the case of actual bias, was so committed to a conclusion that, regardless of the evidence or arguments presented, that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [71]-[72]; or
(b)in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The applicant states that the Tribunal was “dismissive”. There is nothing to suggest that this is the case. Indeed, there is much to suggest otherwise. For example:
(a)in the invitation to attend the first hearing, the Tribunal stated that as a significant period of time had passed since the application was filed, the Tribunal would discuss the applicant’s claims for protection, confirm whether any information needed updating and explain whether witnesses would be required (CB 368);
(b)at the first hearing, the Tribunal discussed various matters with the applicant. Relevantly, the applicant was on notice of some of the Tribunal’s concerns and advised as to what matters the Tribunal would discuss at a second hearing (thus giving him an opportunity to prepare);
(c)the Tribunal sent the applicant correspondence which outlined what he should include in any written submissions or witness statements that he intended to rely upon and how they could best support his case (CB 382);
(d)the Tribunal invited the applicant to a second hearing and gave him the chance to respond to its concerns and explain certain inconsistencies or implausibilities; and
(e)the Tribunal accepted the applicant’s claim that he was a talented mathematician and that he practiced the Sikh religion. That is, the Tribunal made findings in favour of the applicant on various occasions.
On the evidence, it cannot be said that the Tribunal was “biased”. Rather, it remained open to persuasion and impartial throughout the entire process. Far from having a closed mind, the Tribunal made significant efforts to assist the applicant.
Any allegation of bias is dismissed.
The applicant also makes reference to the “submissions” that he filed. To the extent that the applicant is now suggesting that the Tribunal was “dismissive” of those submissions, it appears he is only saying so because the Tribunal did not accept his claims. The fact that the Tribunal’s decision is unfavourable does not mean that the Tribunal was “dismissive” of the materials before it.
The Tribunal acknowledged the written submissions that were provided on 16 March 2020 (at [35]). Much of the content in those submissions referred to the right to enter and reside in Nepal and the applicant’s views on relocation. As the Tribunal noted, it was unnecessary for it to consider these matters given its other findings that the applicant did not face a real risk or chance of harm in India. Otherwise, the applicant’s submissions largely repeated that he feared harm as a result of his inter-caste relationship and his mathematical talents. The Tribunal considered those matters.
The Court is satisfied that the Tribunal was not “dismissive” of the applicant’s claims or his submissions and materials provided in support.
Ground 5 is dismissed.
Applicant’s Affidavit
The Court has also considered whether the applicant’s affidavit affirmed 5 August 2020 contains evidence of jurisdictional error on the part of the Tribunal.
Paragraphs [1]-[11] provide background facts which are not controversial. They do not identify jurisdictional error.
At [12], the applicant states:
I believe the tribunal made an unfair decision as it did not give me a fair hearing. I believe I wasn’t given proper procedural fairness at the hearing. The tribunal not accept that my life was in danger contrary to the delegate’s view. The delegate did imply that my life was in danger but that I could get adequate state protection in India. I believe that my life will be in danger in India and that I will not get state protection based on my submissions to the tribunal. The tribunal did not consider my protection claims seriously and denied me procedural justice.
In terms of any issues in relation to procedural fairness, the Court finds as follows:
(a)the applicant was invited to and attended a hearing before the Tribunal. For the reasons explained in grounds 1-4 above, the applicant was given a real and meaningful opportunity to present arguments and give evidence as required by s 425 of the Act;
(b)the Tribunal (at both the first and second hearing) placed the applicant on notice that it had concerns about the credibility of his claims (at [33], [50] and [53]). In so doing the Tribunal complied with the principles in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 and placed the applicant on notice, to the extent necessary, of the issues on review;
(c)the hearing proceeded by telephone on the first occasion with the consent of the applicant. The second hearing proceeded via Microsoft Teams. The applicant originally objected to appearing via Microsoft Teams as he did not feel that he had the software to support a hearing by this means. The Tribunal then made arrangements for the applicant to attend the Tribunal registry in person where he was then, with the assistance of the Tribunal, able to fully participate by video. As per the principles relevant to s 429A of the Act, it was both fair and reasonable for the Tribunal to proceed in this manner. The Court further notes there is no evidence that conducting the hearing via Teams caused any prejudice;
(d)it was unnecessary for the Tribunal to put any information to the applicant pursuant to ss 424A or 424AA of the Act as all of the information that was before the Tribunal and upon which it relied was evidence that the applicant himself had provided in connection with the review;
(e)there is no evidence that the applicant sought an adjournment and, in circumstances where the Tribunal had heard the matter over two days so that the applicant could have further time to consider his evidence and arguments, it is apparent there was no unreasonable exercise of any discretion; and
(f)for the reasons given in ground 5, the Tribunal displayed no actual or apprehended bias.
Accordingly, the applicant was provided procedural fairness.
The applicant also makes reference to the fact that the Tribunal took a different view to the delegate. He says the delegate implicitly accepted that his life was in danger but found that he could get adequate state protection in India.
The Tribunal conducts a hearing de novo. It is not bound to come to the same conclusions as the delegate. If the Tribunal does propose to depart from the delegate on a critical issue which may be dispositive to the review, the Tribunal must give the applicant notice. As the Court has noted (at [108(b)] above) the Tribunal did so in this case and on more than one occasion. Hence, there was no error in the Tribunal departing from the delegate’s implicit acceptance that the applicant was in danger and instead finding that he was not.
Paragraph [12] does not identify any jurisdictional error.
Paragraph [13] provides:
I am now appealing to the Federal Circuit Court to give me a fair hearing with a view to persuading the delegate to grant me a protection visa to stay permanently in Australia in safety.
The Court has no jurisdiction in relation to the delegate’s decision. Hence, any relief granted will not give the applicant an opportunity to “persuade” the delegate – only the Tribunal.
Otherwise [13] is a plea for relief. It does not identify jurisdictional error.
The applicant’s affidavit fails to identify jurisdictional error.
Written Submissions and Oral Submissions
The applicant’s written submissions are 8 pages in length. At the hearing, the applicant repeated some of what appears in his written submissions and explained them in more detail.
The applicant’s written submissions first state:
The Administrative Appeals Tribunal Member was unfair as he didn’t spend sufficient time attempting to understand why I’m applying for a Protection Visa from the Australian government.
For the reasons given in ground 1, the Court does not accept this submission. The Tribunal gave the applicant ample opportunity and time to present his claims and arguments and made every endeavour to ensure that it understood his claims and evidence. Relevantly, the Tribunal read the applicant’s claims back to him, invited him to comment on concerns and asked questions throughout the hearing to elicit further information.
No jurisdictional error arises in this regard.
The applicant’s written submissions continue as follows:
I wish to inform the honourable Court that I’m a genuine refugee. The Member seems to think that I am not a refugee contrary to what was stated in the Immigration decision record. I believe that the delegate did not raise any issue about whether or not I’m a genuine refugee. The delegate has not disputed the facts of my claims for refugee protection. I have given them police records to confirm that my life is in danger in Punjab. I believe that the Member should not have to examine if I’m a genuine refugee or not as the delegate is of the view that I am a genuine refugee. The Member ought to only to examine if I’ll be given protection in Punjab or the rest of India under their laws. The delegate is of the view that I will get state protection for the claims I have made regarding my life-threatening circumstances. I wish to reaffirm that I will not get state protection if I go back to India.
I believe that the Member did not give me a fair hearing. According to the Member, he came to the conclusion that I am not a genuine refugee. But the delegate did not make any such claims. The delegate only raised the issue of whether or not I’ll get state protection in Punjab or India. The Member did not examine this aspect of my claims. I believe the delegate is wrong as she thinks I’ll get state protection.
This submission is arguably tied to [12] of the applicant’s affidavit. For the reasons given above in relation [12] of the applicant’s affidavit, this submission must fail.
It was entirely open to the Tribunal to determine the application on a basis different to the delegate when the Tribunal, on more than one occasion, advised the applicant that it was considering doing so (at [33], [50] and [53]). As the Tribunal determined that the applicant’s claims were not credible, it was unnecessary to consider the issue of state protection.
To the extent that the applicant states that the delegate is “wrong”, this Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4).
No jurisdictional error arises in this regard.
The applicant’s written submissions continue as follows:
The Member’s conclusion that I’m not a genuine refugee is not based on facts given in my application for protection visa. He did not question me about my circumstances as to why I am claiming a protection from Australia. The Member only spent less than 30 minutes during the hearing. It seems unreasonable to conclude that I am not a refugee after spending less than 30 minutes of time during the hearing.
For the reasons given above in relation to ground 1, this submission is factually inaccurate and cannot be established.
The applicant’s written submissions then claim as follows:
The Member came to the conclusion that my relationship with my girlfriend is not genuine as he felt I was not in contact with her. I did inform the Member that we contacted each other using the public phone as it was not safe to use the mobile phone. I cannot give evidence of my calls made to my girlfriend as I used the public phone. In my case it is more than reasonable that we keep our calls private and confidential hence we need to use public phone and not the mobile phone. We cannot even use the Facebook or Messenger as we need to keep a low public profile
The applicant is simply disagreeing with the Tribunal’s determination that it did not accept that the applicant was still in a relationship or that he would only contact his girlfriend by public telephone. The Tribunal found that evidence to be “improbable” and, in the absence of supporting evidence, did not accept that the applicant was in a relationship. It was entirely open for the Tribunal to make these findings. It cannot be said that no reasonable person would consider it improbable that the applicant was in a relationship on the basis of the evidence provided here.
Before this Court, the applicant explained that he could not provide “objective” evidence to the Tribunal as he wanted to maintain his confidentiality. He stated that the only evidence he could provide was “oral evidence”. When asked by the Court if he believed that the Tribunal did not consider his oral evidence, he stated that he did believe this to be the case.
The Tribunal did consider the applicant’s oral evidence – in particular, his reasons about why he could not provide “objective evidence”. Ultimately, the Tribunal did not consider this evidence to be credible.
No error arises in this regard.
The applicant’s written submissions continue as follows:
My case for seeking protection visa is based on the issue of “honour killing” in Punjab and in India as a whole. I have been threatened by the girl’s family due to our inter-caste relationship. This has put my life in danger as the girl’s family are extremely disturbed by our relationship. The delegate is of the view that Indian police will give me protection which is not true. The police records support my case. I will not get police protection in my country as outlined in my application. The delegate cited the country report about police protection given to Indian citizens in India. There is always a gap between what the Law states and what happens in real life.
The Tribunal considered the applicant’s claim about “honour killing”. It considered his relationship with a Hindu woman and the threats he says were made against him by the woman’s family. Ultimately, the Tribunal determined that the applicant’s claims were not credible. That is, the Tribunal did not accept the applicant’s claims in this regard.
In so far as this submission refers to “state protection”, this is irrelevant to the Court’s task on judicial review. The Court is reviewing the Tribunal’s decision. What the delegate found and relied upon is of no bearing on review.
Finally, the applicant makes reference to a “police report”. In the hearing before this Court, the applicant repeated that he had provided “objective evidence” in the form of a police report and was concerned that the Tribunal did not consider it.
It is correct that Tribunal did not make any express reference to this police report (CB 82-86). The police report outlines that there had been a dispute which arose about a “relationship of love” and notes further that the applicant had reported threats based on his relationship and his mathematic study. The police report is dated 8 October 2008.
To some extent, the applicant’s oral evidence to the Tribunal confirmed what the police report stated. The Tribunal summarised that evidence as follows:
51 …I note that, even by your own evidence, there has been no contact between you and this person's brother since 2006, which is at least 14 years ago.
The police report indicates that the last reported physical interaction with his alleged girlfriend’s brother was in 2006. The Tribunal accepted that the last contact occurred in 2006. The police report does not identify whether threats after this period continued. It simply says that threats were made. Given the applicant’s changing evidence (i.e., that threats were communicated through his family and then that they were not) and noting that the applicant had had no communication with his alleged partner since 2016, it was entirely open for the Tribunal to conclude that the applicant had not received any threats since 2006. The fact that the Tribunal did not refer to the police report in relation to the applicant’s claims about his relationship status is irrelevant given that its contents in this regard was repeated by the applicant at the hearing before the Tribunal.
The police report also noted that the applicant had concerns for his safety arising from his mathematics research. It notes that the applicant alleged that students had threatened to kill him.
Again, there is no error in the Tribunal failing to refer to this evidence.
The Tribunal accepted that the applicant was a talented mathematician. The Tribunal’s task was to determine whether the applicant’s claim to fear harm on the basis of his mathematic studies was genuine. The Tribunal concluded as follows:
55. On the basis of your evidence, I find that you are a student of mathematics but that you have not published in any recognised scholarly forum. There is nothing before me on the evidence you have provided to suggest that any person would take any interest in your work as a mathematician for any reason in any country. Accordingly, I find that your core claim for protection in Australia lacks credibility
The police report was “evidence” before the Tribunal. However, it was not evidence that any person would take any interest in him in India or elsewhere either “now” or “in the future”. Here, the Tribunal is explaining that, in light of the applicant’s lack of, in effect, a current “profile” relevant to his mathematical research (or lack of it) it considered his claim to lack credibility. The police report was concerned with previous incidents. Arguably, that might be probative to a past fear of harm. However, the Tribunal was concerned with the present and any subjective fear of harm going forward. The police report (made some 12 years earlier) was, simply, not probative of the issues now being considered and now relevant to harm in the present.
Further, when [55] is read with the paragraphs that follow at [56]-[58] (which stress that the delay in applying for protection further undermined the credibility of the applicant’s claims), the Tribunal’s ultimate conclusion (at [59]-[60]) that the evidence and claims about the applicant’s perceived fear of harm in India now and in the reasonably foreseeable future was not credible is sound.
No error arises from the absence of reference to the police report.
The applicant’s written submissions then provide as follows:
I also applied for protection on the basis that I am an Academic Refugee. The Member did not examine the reasons as to why I am seeking protection on grounds that I am not able to work with full academic freedom without fear for my life. I believe I am a talented member of the academic community in relation to my mathematical abilities. I provided certifications of my academic credentials to the delegate. I hold a Master degree in Maths and I also have Educational teaching qualifications. In my opinion the Member did not examine my claims of an academic refugee. I have been threatened by students in India due to my academic talents as outlined in my application for protection visa. Australia in November 2020 brought in new visas for talented people in various disciplines especially in Maths and Science and Technology. I believe I have the talents to contribute to the educational community if I am granted refugee status in Australia.
According to the Member he states in his brief decision record that I am not a Mathematician but only a student of mathematics. I find this demeaning and belittling of my academic talents. I even brought to the hearing a copy of my mathematics research which is about 200 printed pages. He even refused to glance at it.
At the hearing I gave the member evidence of my contacts with Mathematicians in WA. I gave him copies of my emails from Prof Landsdale who is attached to the Mathematics Department in Curtin University. The professor is very impressed with my mathematical research and contributions. However, the Member stated that there was no evidence of my mathematical talents on the internet. He said I have not published anything online. I did say to the Member that I am unable to publish anything online as my life was in danger. If I published I will be exposed to the public which is what I am avoiding at this stage of my life. I will be safe working with the Mathematicians in Australia within the safe mathematical community using a pseudonym. The Member has to consider my claims of an academic refuge in light of my submission to the delegate.
My adversaries would only be too delighted if I published any material under my name as they will be able to locate me and my whereabouts. I believe my mathematical abilities are no ordinary contribution as I have completed an original research in mathematics. This supported by Prof Landsdale’s assessment of my research. She also mentioned that she’ll support me by supervising my research once I get my protection visa. There is also the issue of copyright if I published online. I need to work with mathematicians on the quiet till such time I given protective status by Australia.
Currently there is a great need for mathematics professionals in Australia. Schools are also short of Maths teachers. I attached copies of news reports on this to the Member in my written submission just before the hearing. The Member failed to take into consideration that I’m also an academic refugee in Australia. Australia will offer me academic freedom in light of my circumstances in Punjab. I believe the Member treated this aspect of my visa application lightly. I did suffer a lack of academic freedom in Punjab as my life was in danger due to my mathematical talents.

Contrary to what is claimed above, the Tribunal did examine the applicant’s claims to be an “academic refugee” (i.e., owed protection on the basis of his academic endeavours). It did not treat those claims “lightly”.
The Tribunal’s consideration of the applicant’s “mathematics” claims provides:
53. I also discussed with you the claims you have made to be a talented mathematician living under constant threat in India because of the jealousy of other mathematics students in that country. I pointed out to you that there was no evidence online of your having published any mathematics papers in any forum at any time beyond your thesis.
54. Your evidence to me was that you could not publish anywhere, because to do so would be to divulge your location, and that this would create a threat to you. You also indicated that you were concerned that your work would be plagiarised and stolen by others, and this was why you decided to leave India and not publish in that country.
55. On the basis of your evidence, I find that you are a student of mathematics but that you have not published in any recognised scholarly forum. There is nothing before me on the evidence you have provided to suggest that any person would take any interest in your work as a mathematician for any reason in any country. Accordingly, I find that your core claim for protection in Australia lacks credibility.
The applicant takes issue with the Tribunal calling him a “student of mathematics”. He repeated this concern verbally before this Court.
The reference to the applicant as a “student of mathematics” was not, in the Court’s view, intended to display any disrespect. It represents no more than the use of a turn of phrase. Indeed, the Tribunal accepted that the applicant was a “talented mathematician” (at [39]).
The applicant also submits that the Tribunal “refused” to assess his mathematics research.
The Tribunal records as follows:
38. In the course of the hearing you did indicate that you had brought two books that you would like me to view. We discussed whether or not this was necessary. You indicated one of these documents was a book of poetry which had no relevance to your application for protection, and the other was a book you had written relating to mathematics.
39. I indicated to you that I was prepared to accept that you were a talented mathematician; that you had qualified in mathematics from Indian universities. You accepted that there was nothing further that could be demonstrated by this book, and therefore I am prepared to accept that you offered the book and that it supports what I have already found to be the case.
The Tribunal did not “refuse to glance” at the applicant’s research. Rather, after consulting with the applicant about the content of what he was seeking to show, the Tribunal determined that it was unnecessary to consider the documents as the Tribunal accepted what the applicant said they demonstrated – i.e., that he was a “talented mathematician”.
Before this Court, the applicant referred to the correspondence exchanged between him and a professor. He claims this evidence was not considered by the Tribunal. In his written submissions, the applicant refers to the evidence he gave “of my contacts with Mathematicians in WA”.
The applicant provided this evidence to the Tribunal to demonstrate that he was studying mathematics and “involved in that area”. The Tribunal accepted that the applicant was a talented mathematician. It is not clear what further relevance the documents the applicant refers to in his submissions (both oral and written) could have had. For example, the evidence did not support his claim to be at risk or chance of harm now or in the future because of his studies.
It is true that the Tribunal noted that the applicant had not published anything online. It noted that the applicant had provided an explanation about why that was the case. Before this Court, the applicant again repeated his explanation that he “could not publish things”.
The Tribunal’s decision must be read as a whole and in context. Here, the Tribunal did not reason that the claim was not credible solely because the applicant had not published any material online. The Tribunal also determined that there was nothing to indicate that any person would now take any interest in the applicant’s work as a mathematician. It further determined that the delay in applying for the visa undermined the genuineness of the claim.
Read as a whole, it was open to the Tribunal to form a conclusion that the applicant’s claim to fear harm on the basis of his work in mathematics was not credible. The Tribunal’s conclusion was based on logical and reasonable inferences that arose from the evidence and circumstances that the applicant had provided.
The applicant also makes reference to a professor saying that she would “support” the applicant when he gets his visa. There is no evidence of this before the Court. Further, to the extent that the applicant seeks to explain that he has not published online due to “copyright”, no such submission was advanced to the Tribunal. The applicant said he did not publish in India because of fears of plagiarism. However, no such claim was made that he was unable to do so in Australia.
It is noted that the applicant says that he believes that he has the talent to contribute to the educational community if he is allowed to stay in Australia, that Australia has created visas for people in the science and mathematics fields and that he will be safe to publish his work under a pseudonym in Australia.
These matters appeal to the merits of the applicant’s claim and do not assist him on judicial review.
To the extent that the applicant alleged before this Court that the Tribunal did not consider his oral evidence, this is incorrect. The Tribunal’s decision clearly indicates that the applicant gave evidence and the Tribunal considered that evidence. For example, (at [54]) the Tribunal summarises the applicant’s evidence and (at [55]) concludes that the evidence did not demonstrate that any person would now take any interest in his work as a mathematician for any reason in any country.
No error arises in this regard.
The applicant’s written submissions continue as follows:
After reading the Member’s decision record I have come to the following conclusions:
a)The member showed little concern about the issue of honour killing in relation to my inter-caste relationship.
I wish to reinforce to the honourable court that my life is in danger because of my inter-caste relationship. I have submitted supporting evidence of honour killings in India and in particular Punjab. I also submitted articles on honour killings in a third country, Nepal.
As noted above, the Tribunal acknowledged and addressed the applicant’s claims in relation to honour killings for inter-caste relationships. Ultimately, the Tribunal rejected that claim.
The applicant’s written submissions continue:
b)The member also attempted to belittle my academic abilities by reducing my abilities to those of a student of mathematics.
All the evidence provided to the delegate and member support my claims as a mathematician. Even Prof Landsdale supports me. She requested me to apply for a scholarship after I get my visa matter sorted out. After looking at my research work the professor felt that my research should be submitted to Curtin University as part of a PhD thesis. She does not want me to publish it at this stage but submit it as a PhD thesis under her supervision
As noted above, the use of the term “student of mathematics” was not intended to denigrate the applicant’s abilities. The Tribunal said on multiple occasions that the applicant was a talented mathematician. However, being a talented mathematician did not, for the Tribunal, give rise to a credible basis upon which the applicant feared harm.
The applicant’s written submissions then state:
c)I wish to let the court know that the way the member conducted the hearing is procedurally unfair.
The Member did not spend time looking at all the facts of my case for refugee protection. He did not even refer to my written submission provided to the tribunal. He did not appreciate the fact that my life was in danger if I was not granted a protection visa to live and work in Australia. He spent less than 30 minutes at the hearing which was actually scheduled for 3 hours from 9:30am to 12:30 pm on 16th July 2020. The hearing started at 9:30am and ended at 10:00am. During this time period the Member was in a great hurry and would not allow anyone else as support to be present with me at the hearing. I feel I was not given procedural justice under his proceedings.
The Member cited the President’s direction:
“That members are to take all reasonable steps to complete cases allocated to members as quickly as possible”
However it was obviously not the President’s intention that Members should hurry up the hearing at the expense of being fair to me! The Member did not go into my claims fairly and justly as my case required a detailed interview and assessment.
For the reasons given above in relation to grounds 1 and 2 above, the applicant was not denied procedural fairness. The Tribunal conducted a hearing, took the applicant through his claims in detail, referred to many of the materials that the applicant had presented and, contrary to what the applicant now asserts, did not “appear to be in a great hurry”. The Tribunal conducted two hearings, repeated the applicant’s claims to him on two occasions, questioned him about aspects of his claims and gave him ample time to respond.
The reference to the President’s direction must be read in context. The full passage of the direction which the Tribunal cited reads as follows (at [8]):
That ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;
That ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review
Read as a whole, the Tribunal’s reference to the direction was made because the Tribunal did not consider it necessary to resolve whether the applicant would face a real chance of harm or a real risk of harm. That was so because the Tribunal found that the applicant did not hold a “subjective” fear of harm. Hence, without evidence of a subjective fear of harm, the objective matters in the protection assessment did not require consideration.
In context, the Tribunal was simply prefacing that it had completed this case in a timely fashion and perhaps quicker than might have occurred in other protection matters as it was unnecessary to consider the claims in any detail (as the Tribunal had rejected them outright).
As explained, the hearing was, in fact, lengthy. The Tribunal did not “hurry up”. Rather, it provided a fair hearing and a thorough assessment of the materials before it.
Finally, to the extent that the applicant states that he was not allowed any “support to be present”, there is no evidence to support this assertion.
No error arises in this regard.
The applicant’s written submissions continue:
I hope the court will take into consideration the following:
a)My claims for protection visa in relation to inter-caste relationship is true.
I have given substantial evidence of honour killing to the delegate and Member to prove that my life will be in danger in Punjab and greater India. Living in Australia from May 2009 to the present time, I feel safe in Australia, especially in the three years, from 2017 to 2021. I lived safely in the suburb of Lynwood. However during the early part of my stay in Australia I felt very insecure and unsafe, from 2009 to 2016. During this period I lived in 5 or 6 different houses so that my adversaries will not know my whereabouts.
To conceal my identity I even tried my best to contact my girlfriend by using the public phone. She did likewise by using the public phone in India to talk to me. She remains unmarried till to day due to her love for me and also because our relationship has tarnished her image in India due to inter-caste relationship. She is waiting for me to sponsor her to Australia. She is also educated and holds a Bachelor degree in Science from Punjab. We can both contribute to Australia as we have STEM-related qualifications which are in demand in Australia. We believe our students need to understand the process of mathematizing the world before they can comprehend the world that’s already mathematized in our digital environment.
b)My claims for protection visa relating to my mathematical abilities are equally true.
I have provided documentary evidence of my intention to obtain a teaching position in mathematics and science with TRBWA. They have advised me that my qualifications are acceptable. However I am unable to register with the Board due to visa conditions.
Once my protection visa is finalised Prof Landsdale has advised me to do a PhD in Maths and apply for Australian government scholarship with her recommendations and support.
These submissions misunderstand the role of the Court on review. The matters that the applicant refers to go to the merits of his application. They do not identify jurisdictional error.
The applicant’s written submissions conclude:
I wish to advise the court that it has been a very difficult life for me as a refugee. As a result of my application for protection, I was not given any work rights by the department. I have to depend on the support of good friends in Perth. I applied for work rights twice and both times immigration refused me rights to work.
I was unable to obtain legal representation due to lack of funds. I tried to seek pro bono legal assistance but without success. In my opinion appealing to FCC and FC requires appropriate legal advice from senior lawyers who are competent in addressing jurisdictional errors committed by the Tribunal.
I was not entitled to Medicare under protection visa application rules. It is ironical that Australia allows people like us to apply for refugee visas but no benefits are extended to us.
I tried to obtain state funded housing without success as I was not an Australian permanent resident.
I was denied study rights even though I was seeking academic refugee status.
Many friends have asked me how I survived in Australia for all these years in light of my extremely hard circumstances? Well, I kept doing my mathematical research privately and I went to University libraries and met some young mathematics students and inspired them to work on rare mathematical concepts and ideas and relate them to the real world. I also kept writing poetry and I have written about 250 poems as a way of keeping myself occupied creatively.
Most of these matters refer to perceived unfairness. While sympathetic to the difficulties faced by all unrepresented applicants, the Court has no jurisdiction to do anything in relation to work rights, study rights, Medicare or housing assistance. The Court’s only role on review is to determine whether the Tribunal fell into jurisdictional error.
No jurisdictional error arises from the applicant’s written submissions.
The applicant, in his oral submissions, also made reference to the “delay” in applying for the visa. This appears to be a reference to [56]-[58] of the Tribunal’s decision where the Tribunal found the delay in applying for protection suggested that the applicant’s claims lacked credibility. The applicant explained that the delay arose because he was told in 2011 that his claim was under the “complementary protection” assessment and he had to wait for the “complementary protection bill”.
There is no evidence that the applicant provided this explanation to the Tribunal. Further, delay in applying for a visa is an “obvious” matter to take into account when assessing the genuineness of an applicant’s claims: Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 301.
No error arises in relation to the issue of delay.
The applicant’s oral submissions were otherwise directed to the merits of the Tribunal’s decision (i.e., explaining why he did or did not do things). Accordingly, they do not identify jurisdictional error.
No jurisdictional error arises from the applicant’s oral submissions.
The Court has otherwise examined the Tribunal’s decision for error. It notes that at [37] the Tribunal refers to the first hearing being conducted on “5 May”. This is incorrect. The first hearing (as correctly stated by the Tribunal at [25]) occurred on 12 May. Nothing turns on this error. Given that the Tribunal’s reasons were provided orally this appears to be no more than a “slip of the tongue” and an oversight in settling the written statement. It does not have the character of a jurisdictional error and, in any event, the reference to an incorrect date could not have realistically deprived the applicant of a successful outcome.
CONCLUSION
The applicant’s application for judicial review dated 5 August 2020 and the applicant’s affidavit dated 5 August 2020 fail to identify any jurisdictional error on the part of the Tribunal in its decision dated 16 July 2020. The applicant’s written submissions and oral submissions also fail to identify jurisdictional error. No other jurisdictional error arises on the face of the materials.
The application for judicial review is, accordingly, dismissed.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 28 April 2021

File number:	PEG 239 of 2020
Judgment of:	JUDGE KENDALL
Date of judgment:	28 April 2021
Catchwords:	MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal overlooked evidence – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 5AAA, 36, 104, 423A, 424AA, 424A, 425, 429A, 476
Cases cited:	Abebe v The Commonwealth [1999] HCA 14 Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 Minister for Immigration & Citizenship v Li [2013] HCA 18 Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 301 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs:	186
Date of hearing:	21 April 2021
Place:	Perth
Applicant:	Appeared in person
Counsel for the First Respondent:	Ms G Ellis
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	28 APRIL 2021