FEDERAL COURT OF AUSTRALIA

DQV20 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 430

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs in the sum of $4,000.

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

REASONS FOR JUDGMENT

DOWLING J

1    The appellant, referred to by the pseudonym DQV20, appeals from a decision of the Federal Circuit Court of Australia. In that decision, the primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision affirmed a decision of the delegate to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs to refuse to grant a Protection (Class XA) (Subclass 866) visa to the appellant.

2    The primary judge’s decision is DQV20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 823 (primary judgment). The appellant’s grounds of review before the primary judge are explained below. The primary judge addressed each of those grounds and determined that the Tribunal made no jurisdictional error.

3    The notice of appeal before me set out five grounds of appeal as follows:

(1)    Ground one: “The FCC affirmed AAT (M&R Division)'s decision not to grant me a protection visa instead of remitting it to the AAT.”

(2)    Ground two: “The FCC's orders constitute a jurisdictional error in that it affirmed AAT's decision even though AAT did not take into consideration the Police Report I submitted in support of my protection visa application. The court did acknowledge that the AAT did not consider the police report which is an objective statement of my claims for Protection Visa.”

(3)    Ground three: “The Court did not consider that I am an academic refugee as the University denied me academic freedom to conduct my research without restrictions as I was threatened by college students which caused subjective fear in me. The Court acknowledged echoing the AAT's assessment I was a talented mathematician. My mathematical talents became the envy of my peers which resulted in my fleeing my home state of Punjab.”

(4)    Ground four: “The AAT did not find that my life was in danger because it did not consider the police report which substantiates my claims of danger. In the police report mention is made of my inter-caste relationship. This resulted in threats to my life from the girl's family. I also submitted supporting documents on ‘honour killings’ in Punjab and even in the rest of India. My mother died in 2017 and my father died in 2018 due to stress from my situation as my family was harassed and threatened by my adversaries. I could not attend their funerals as my family advised me to stay away from India. If my life was not in danger, surely I could have gone to India to attend their funerals.”

(5)    Ground five: “The Court did acknowledge my mathematical talents as I provided emails from the mathematics Professor in Curtin University supporting my mathematical talents. The Court felt that I could apply for the Global Talent Visa to stay here and make a mathematical contribution in the area of mathematics education. Australia is looking for mathematically talented people to assist in mathematics learning in schools. Unfortunately I cannot apply for this visa as I am a refugee. I can only apply offshore which is not practicable as my life is in danger in my country.”

4    The appellant’s written submissions raise additional issues not captured in the grounds of appeal above. Those issues, as expressed by the appellant, are as follows:

(1)    Issue one: To ensure a fair and just process, my case must be granted effective legal representation during this review to ensure my case is presented accurately, fairly and comprehensively.

(2)    Issue two: The Tribunal allotted an exceedingly brief half-hour hearing and promptly issued a decision on the same date. This hasty approach to address a backlog of cases during the Covid pandemic, has had detrimental consequences, resulting in a grave miscarriage of justice for me in two critical aspects: my academic persecution and inter-ethnic relationship.

(3)    Issue three: In an attempt to provide evidence of my mathematical ability and talent, I presented my Mathematics book, “T-advanced Sequence & Series,” to the member of the Tribunal during my hearing in May 2020. However, it is deeply concerning that the Tribunal member refused to consider this evidence, deeming it irrelevant to the case. This refusal to acknowledge the vital evidence has contributed to the miscarriage of justice in my case.

(4)    Issue four: The fact that other inter-ethnic cases may have been dismissed or found to lack merit should not automatically lead to the same conclusion in my case. My situation is unique and warrants a careful and impartial assessment. The Tribunal’s failure to distinguish these cases based on their individual circumstances is a jurisdictional error that has significantly impacted my pursuit of justice.

(5)    Issue five: My life is still in danger if I return to Punjab and India [due to my] inter-ethnic relationship and [status as an] academic refugee.

5    Furthermore, the appellant’s written submissions raised a number of considerations that the appellant said were “essential to understanding [his] character and the value [he] bring[s] to [his] community and the Australian community at large”. Those considerations, as expressed by the appellant, are as follows:

(1)    Consideration one: I represent a kind of talent that is in high demand in Australia. Our nation has a growing need for experts in the field of science, technology, engineering, and mathematics (STEM). My expertise in mathematics has the potential to significantly benefit various sectors, including research, technology development, artificial intelligence, and education.

(2)    Consideration two: Information about my qualifications, as assessed by the Teacher Registration Board of WA…have been assessed as equivalent to an accredited initial teacher education program and meet the qualification requirement for Full, Provisional or Non-Practicing Registration. I have found PhD supervisors who are happy to encourage and supervise my PhD program as soon as my refugee visa is finalised.

(3)    Consideration three: I am connected to the Punjabi community and I play a significant role in the community. I am coaching students in mathematics on a voluntary basis.

(4)    Consideration four: My relocation to Australia has marked a pivotal turning point in my life. My dedication to my field of mathematics has led me to establish strong and lasting friendships with colleagues, mentors and students. Through my years of hard work and commitment, I have not only become a respected member of the mathematical community but I have also contributed significantly to the field through my research and coaching.

6    Each of those grounds, issues and considerations are addressed below.

7    For all of the reasons set out below, the appeal is dismissed.

BACKGROUND

8    The relevant background was set out by the primary judge at [1] – [9] and [39] – [51] of the primary judgment. I note the following salient matters from that judgment.

9    The appellant is an Indian citizen who arrived in Australia in May 2009 on a student visa. In February 2010, his student visa was cancelled. He was granted a bridging visa in March 2010.

10    On 23 September 2015, the appellant applied for a Protection (Subclass 866) visa on two bases. First, the appellant said that he feared harm as a result of his relationship with a Hindu woman of a different caste (noting the appellant is Sikh). The appellant referred to that woman as his girlfriend. The appellant claimed that the brother of his girlfriend had threatened to kill him. Second, he said that because of his “mathematical skills and research” his peers were jealous of those skills and may harm his as a result.

11    On 6 January 2017, a delegate of the Minister refused to grant the appellant the visa as the delegate was not satisfied the appellant feared harm for reason of his race, nationality, religion, political opinion or membership of a social group. The delegate additionally determined that no real risk of harm would arise if the appellant returned to India as the appellant could access the Indian Police Service if he required protection.

12    On 2 February 2017, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant provided the Tribunal his written submissions and a number of supporting documents which included media articles pertaining to honour killings in India in circumstances of inter-caste and inter-faith marriages and email exchanges about the appellant’s proposed doctoral thesis in Australia.

13    The appellant attended a hearing before the Tribunal on 12 May and 16 July 2020. The first hearing was conducted by telephone, while the second was conducted by Microsoft Teams. At the second hearing, the appellant provided two books to the Tribunal that had been written by the appellant. The first was a book of poetry that the appellant confirmed had no relevance to his claims. The second was a mathematics book that the Tribunal accepted demonstrated the appellant was a talented mathematician.

14    The Tribunal gave an oral decision at the conclusion of the hearing on 16 July 2020 and affirmed the decision under review. The Tribunal provided a written statement of its reasons on 30 July 2020. The Tribunal found that the appellant failed to demonstrate a genuinely held subjective belief of persecution for the purpose of s 36(2)(a) of the Migration Act 1958 (Cth); and did not subjectively fear significant harm or face a real risk of significant harm for the purpose of s 36(2)(aa) of the Act. The Tribunal gave weight to the following factors:

(1)    the appellant’s claim that he was in a continuing relationship with the girlfriend was not credible because the appellant could not adduce adequate evidence of any contact with the girlfriend from 2016 onwards. The appellant stated that he spoke to her regularly by public telephone, which the Tribunal found to be improbable when the appellant owned his own telephone.

(2)    the appellant had given changing evidence about whether the girlfriend’s family continued to make threats against him and his family in India. The Tribunal accepted the appellant’s own evidence that there had been no contact between him and the girlfriend’s brother since 2006.

(3)    the appellant is a student of mathematics. However, there was no evidence to suggest that any person would take any interest in the appellant’s work as a mathematician for any reason as the appellant had not published (beyond his thesis) in any scholarly forum.

(4)    the appellant’s six-year delay from arriving in Australia to lodging his protection visa application suggested that his claim lacked credibility.

DECISION OF THE FEDERAL CIRCUIT COURT

15    On 5 August 2020, the appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision pursuant to s 476 of the Act. A hearing was held on 21 April 2021, and the primary judge delivered his reasons on 28 April 2021.

16    The primary judge dismissed the first ground of review (that the Tribunal hearing was too short and therefore the appellant was not given procedural fairness), finding that there was nothing to suggest that the appellant did not have a real or meaningful opportunity to present his arguments and evidence. The primary judge found that it appeared the appellant was given various opportunities to provide information and add to his evidence: primary judgment at [52] – [64].

17    As to the second ground under review (that the Tribunal failed to understand the appellant’s relationship in India, and he was denied procedural fairness in not being able to explain his relationship at the hearing), the primary judge found that the appellant was given ample opportunity to explain the circumstances surrounding his relationship. The primary judge noted that it appeared that the appellant disagreed with the Tribunal’s finding that the appellant was not in a continuing relationship with the girlfriend. However, in these circumstances, disagreement does not constitute jurisdictional error: primary judgment at [65] – [75].

18    As to the third ground (that the translator inadequately translated the appellant’s circumstances), the primary judge found that where the appellant had not provided a copy of the Tribunal hearing transcripts to the Court with independent translations, the Court could not make any determination as to the inadequacy of the translation: primary judgment at [76] – [86].

19    The primary judge dismissed the fourth ground (that the Tribunal did not consider the appellant’s mathematical and poetry book) on the basis that the appellant stated in oral hearing that the poetry book had no relevance to his claims for protection, and that the Tribunal had given serious consideration to the appellant’s risk of harm based on his mathematical abilities: primary judgment at [87] – [92].

20    The primary judge additionally dismissed the fifth ground (that the Tribunal was dismissive of the appellant’s claims) as there was no evidence of actual or apprehended bias on the part of the Tribunal, nor was there any evidence of the Tribunal being “dismissive” of the appellant’s claims, submissions or materials provided in support: primary judgment at [93] – [102].

21    In regard to the complaint in the appellant’s affidavit (that the Tribunal made an unfair decision and did not provide the appellant a fair hearing), the primary judge found that the appellant was not denied procedural fairness, and there was no error in the Tribunal’s departure from any implicit acceptance by the delegate that the appellant was in danger: primary judgment at [103] – [114].

22    As in the matter before this Court, the appellant’s written and oral submissions before the primary judge also raised a number of additional grounds to the grounds of appeal. Of these grounds, the most relevant to the present matter is the appellant’s complaint before the primary judge that the Tribunal did not take into account the police report that was in evidence before the Tribunal. The police report was made in India in 2008. It describes some of the threats made by the girlfriend’s brother and students at the appellant’s college. The report is described further at [30] – [34] of this decision.

23    To this complaint, the primary judge relevantly found that, at [135] – [143]:

It is correct that Tribunal did not make any express reference to this police report (CB 82-86).

…

To some extent, the [appellant’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 [appellant’s] changing evidence (i.e., that threats were communicated through his family and then that they were not) and noting that the [appellant] had had no communication with his alleged partner since 2016, it was entirely open for the Tribunal to conclude that the [appellant] had not received any threats since 2006. The fact that the Tribunal did not refer to the police report in relation to the [appellant’s] claims about his relationship status is irrelevant given that its contents in this regard was repeated by the [appellant] at the hearing before the Tribunal.

The police report also noted that the [appellant] had concerns for his safety arising from his mathematics research. It notes that the [appellant] 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 [appellant] was a talented mathematician. The Tribunal’s task was to determine whether the [appellant’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 [appellant’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 [appellant’s] claims), the Tribunal’s ultimate conclusion (at [59] - [60]) that the evidence and claims about the [appellant’s] perceived fear of harm in India now and in the reasonably foreseeable future was not credible is sound.

24    Ultimately, the primary judge found that no error arises from the absence of reference to the police report.

CONSIDERATION

25    I have endeavoured to construe the appellant’s grounds as generously as possible, noting the appellant is unrepresented.

26    It should be recalled that the Court’s jurisdiction on appeal is limited to identifying appealable error in the primary judgment and allowing or dismissing the appeal accordingly. That is, assessing whether the primary judge was correct to find that the Tribunal’s decision was not affected by jurisdictional error. To identify whether appealable error is present, the Court looks to the approach taken on the law by the Federal Circuit Court, and in its fact-finding: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [55] (Murphy, Mortimer and O’Callaghan JJ). Neither this Court nor the Federal Circuit Court has the jurisdiction to consider the factual merits of the Tribunal’s decision. Further, this Court is not a forum in which a party may simply reargue their case in the hope of convincing a judge to take a different view on the evidence: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [21] (Derrington J).

Ground one

27    Ground one (FCC affirmed AAT (M&R Division's decision not to grant me a protection visa instead of remitting it to the AAT) does not identify an appealable error on the part of the primary judge. Rather, it summarises the effect of the primary judge’s decision. As no error is identified, I dismiss ground one.

Grounds two and four

The police report complaint

28    Ground two and ground four (in part) allege that the AAT failed to take into account the police report submitted by the appellant, and the primary judge erred in failing to find that the Tribunal committed this jurisdictional error.

29    The Tribunal’s failure to expressly mention the police report in its reasons for decision was in issue in the court below. The primary judge ultimately found that no error arose from the absence of reference to the police report, with his Honour’s reasons extracted above at [23].

30    The appellant’s written and oral submissions indicate that the appellant relied on the police report to demonstrate the “imminent threats and perils that [the appellant faces] if [he] were to return to India”, namely he says the threats by the girlfriend’s brother and mathematics students.

31    A translated version of the police report was in evidence before the Tribunal. The report is dated 8 October 2008 and was made in a village in northern India. The “matter” listed in the report is “Threats to [the appellant’s] Life”. The police report states that, in summary:

(1)    [the appellant] came into [a police station] on 8 October 2008. He said that his life is in danger from both [a Hindu individual, being the girlfriend’s brother] and some students from [a college].

(2)    [the appellant’s] relationship with his girlfriend has resulted in threats from his girlfriend’s brother.

(3)    the other problem has to do with [the appellant’s] rare and controversial research in mathematics in the area of “Sequences and Series”.

32    The police report mentions that the appellant is involved in an inter-caste and inter-faith relationship. The report also names the girlfriend’s brother and sets out some of the dates and times that the appellant says he was threatened by him, being in October 2005 and July 2006.

33    The police report also mentions that the girlfriend’s brother called the appellant’s mobile phone “several times” to threaten him.

34    Additionally, the police report names the students who had allegedly made threats against the appellant and sets out the times that the appellant was threatened by those students, being in January, February and April of 2004.

35    In written submissions and at the hearing, the Minister submitted that:

(1)    the fact that the Tribunal did not refer to the police report in relation to the appellant’s claims about the threats made by the girlfriend’s brother is irrelevant. That is so because the relevant contents of the police report were repeated by the appellant at the hearing before the Tribunal, and in the Tribunal’s reasons for decision. In particular, the police report identified that threats were made against the appellant by the girlfriend’s brother in 2006. The Tribunal accepted that the last contact between the appellant and the girlfriend’s brother occurred in 2006. As such, the evidence that may have been gleaned from the police report in this regard was “subsumed into [the Tribunal’s] finding” that the last contact between the appellant and the girlfriend’s brother was in 2006.

(2)    in relation to the appellant’s alleged fear of harm from threats by mathematics students, there was no error in the Tribunal not referring to the police report in circumstances where the Tribunal found, at [55] of the Tribunal’s decision, that 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”. Whilst the police report was in evidence before the Tribunal, it was not evidence that any person would take any interest in the appellant’s work as a mathematician in any country.

(3)    in any case, the Tribunal found that the occasion of the threats by the girlfriend’s brother and mathematics students were so long ago as to have no bearing on the question before the Tribunal, which was whether the appellant is a person to which Australia has protection obligations because either the appellant is a refugee pursuant to s 36(2)(a) of the Act, or there is a real risk that the appellant will suffer significant harm if removed from Australia under s 36(2)(aa) of the Act.

36    The Minister submitted that the primary judge was correct when he concluded that the police report made some 12-years earlier was simply not probative of the issues relevant to harm in the present.

37    As identified by the primary judge, the Tribunal did not expressly mention the police report in its reasons for decision. However, the failure to mention the police report in itself does not demonstrate jurisdictional error on the part of the Tribunal: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [97] (Robertson J).

38    Ignoring relevant material in a way that affects the exercise of a power may constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82] – [84] (McHugh, Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [54] – [58] (Katzmann, Griffiths and Wigney JJ).

39    The obligation of the Tribunal to consider representations made to it was explained by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24] – [27]:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

…

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(citations omitted)

40    While these principles deal with the obligation upon the tribunal to consider representations, they have been applied in cases where an appellant has alleged that the tribunal failed to consider evidence: see, for example, Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 435 at [21] (Goodman J).

41    It is a well-established principle that the Tribunal is not required to refer to every piece of evidence before it or every contention made in its reasons for decision: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ). The absence of any express reference to specific evidence does not necessarily mean that the evidence was not considered by the Tribunal: ETA067 v The Republic of Nauru [2018] HCA 46; 360 ALR 228 at [13] (Bell, Keane and Gordon JJ). Further, as the High Court explained in ETA067 at [14], there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an appellant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material, including a matter that was an essential integer to an appellant’s claim or a matter that would be dispositive of the tribunal’s review.

42    In determining whether, as a matter of inference, the Tribunal failed to consider the evidence, it is necessary to consider the Tribunal’s reasons in order to understand why the Tribunal exercised its power in the way that it did: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] (Allsop CJ, Robertson J and Mortimer J (as her Honour then was)); applied in Kaur at [23] – [38]. The Tribunal’s reasons are to be read as a whole and fairly, and not with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] (Kiefel CJ, Bell J, Gageler J (as his Honour then was), Keane, Nettle and Gordon JJ); Plaintiff M1/2021 at [38].

43    The caution that must be observed before drawing an inference that a Tribunal has failed to address a particular issue or matter was explained by the Full Court of the Federal Court in WAEE at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

44    That approach has been applied and affirmed in recent decisions of this Court including EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451 at [62] (Halley J); CKU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 239 at [36] (Moshinsky J) and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 755 at [14] – [15] (Perram J).

45    Having read the decision of the Tribunal and the primary judge with those cautions in mind, I am not persuaded that the failure of the Tribunal to refer to the police report in its decision gives rise to jurisdictional error.

46    In relation to both factual matters that can be gleaned from the police report, that is, the threats from the appellant’s girlfriend’s brother and mathematics students (and when they were made), I consider that these matters are “subsumed in findings of greater generality” within the Tribunal’s decision: WAEE at [47]. I am also persuaded by the fact that the issue of whether the appellant filed a police report in 2008 in respect of the alleged threats is not an essential integer to the appellant’s claim or a matter that would be dispositive of the Tribunal’s review: ETA067 at [14].

47    The fact of the threats by the girlfriend’s brother and mathematics students was clearly before the Tribunal, as shown in the Tribunal’s decision at [30], [37], [46] – [49], [53] and [59]. It is clear on the face of the Tribunal’s decision that the Tribunal was alive to the appellant’s claims in respect of those threats and considered those claims. This is not a case where the Tribunal has failed to consider one of the appellant’s claims for protection outright (cf WAEE).

48    The relevant question being considered by the Tribunal was whether the appellant held a genuinely subjective, well-founded fear of persecution now, or in the reasonably foreseeable future. The Tribunal found that he did not, determining that the appellant’s claims for protection now, or in the reasonably foreseeable future, lacked credibility. The Tribunal found in this way owing to the length of time it had taken the appellant to make a protection visa application, the fact that the appellant had not been in contact with the girlfriend’s brother since 2006, the lack of evidence that demonstrated that the appellant had been in contact with the girlfriend since 2016, and the fact that the appellant had not published any mathematics papers in any scholarly forum beyond his thesis. Those were all findings open to the Tribunal when considering whether the appellant held a genuinely subjective, well-founded fear of persecution now, or in the reasonably foreseeable future.

49    Having approached the relevant issue in this way, the Tribunal’s consideration of the matters in the police report was subsumed by its rational and reasonable finding that the underlying premise of the appellant’s claim lacked credibility, with the result that the police report did not require any greater level of engagement or express reference.

50    Accordingly, I dismiss grounds two and ground four to the extent they relate to the Tribunal’s failure to reference the police report.

The appellant’s supporting documents

51    The second part of ground four states that the appellant submitted supporting documents on honour killings in Punjab and the rest of India. This statement does not disclose any jurisdictional error on the part of the Tribunal or an appealable error on the part of the primary judge. The appellant’s supporting documents to which he refers appear to be a number of articles that detail honour killings that have occurred in India against various inter-faith and inter-caste couples.

52    If, by this ground, the appellant means to say that the Tribunal did not consider the appellant’s evidence relating to honour killings, the same principles that apply in respect of the police report apply in relation to the articles relating to honour killings. As stated at [37] of this decision, it is a well-established principle that a Tribunal’s failure to mention a piece of evidence in its reasons does not of itself demonstrate jurisdictional error. While the appellant’s supporting documents relating to honour killings were not expressly mentioned by the Tribunal in its reasons for decision, the issue that the supporting documents address, being the alleged threats faced by the appellant due to his claimed relationship, were considered by the Tribunal. The Tribunal determined, at [50] – [51] of its reasons, that the appellant’s claim as to the continued existence of this relationship lacked credibility. It necessarily follows that any supporting documents that go to the possible threat of harm faced by the appellant owing to this relationship did not warrant specific mention in the Tribunal’s reasons. The factual premise upon which these documents rest was rejected by the Tribunal: WAEE at [47]. This is consistent with the primary judge’s finding that the Tribunal acknowledged and addressed the appellant’s claims in relation to honour killings for inter-caste relationships, and rejected that claim: primary judgment at [163]. I therefore dismiss ground four to the extent that it relates to the failure by the Tribunal to mention the appellant’s supporting documents.

The appellant’s failure to attend his parents’ funerals

53    The final part of ground four states that: “My mother died in 2017 and my father died in 2018 due to stress from my situation as my family was harassed and threatened by my adversaries. I could not attend their funerals as my family advised me to stay away from India. If my life was not in danger, surely I could have gone to India to attend their funerals”.

54    It is unclear what appealable error the appellant raises by this statement. No ground of appeal relating to the death of the appellant’s parents was before the primary judge.

55    To the extent that the appellant intends to say that this issue was not considered by the Tribunal, that is plainly not the case. At [40] of the Tribunal’s decision, the Tribunal states that the appellant was asked about his family in India and the appellant stated that his parents had passed away. At [42] of the Tribunal’s decision, the Tribunal states that it asked whether the appellant had made any request to the Department to return to India for those funerals, and that the appellant responded that he decided not to apply, using the appellant’s words, “for no particular reason”.

56    It is clear that the Tribunal was alive to the claim that the appellant’s parents had passed away and the appellant had not attended those funerals. The Tribunal, as it was entitled to do, repeated the appellant’s own evidence that the reason the appellant did not attend those funerals was not related to any fear of harm he faced.

57    Accordingly, I dismiss ground four.

Ground three

58    By ground three, the appellant alleges that the Court “did not consider that I am an academic refugee as the University denied me academic freedom to conduct my research without restrictions as I was threatened by college students which caused subjective fear in me…”.

59    I do not accept that this matter was not considered by the primary judge. In assessing the appellant’s application for judicial review, the primary judge addressed the Tribunal’s consideration of the appellant’s claim that he was at a risk of (or chance of) harm because of his mathematical abilities (at [90] – [91], [156]) and the appellant’s claim that he was an academic refugee (at [144] – [146]).

60    At [90], the primary judge concluded that:

(1)    it is clear that the Tribunal gave consideration to the appellant’s claims that he was at a risk of (or chance of) harm because of his mathematical abilities;

(2)    the Tribunal accepted that the appellant was a “talented mathematician” and assessed whether he faced a risk or chance of harm on the basis of that accepted fact;

(3)    the Tribunal explored the appellant’s circumstances and the reasons why this allegedly caused him to fear harm; and

(4)    the Tribunal was not satisfied that the appellant was of interest because of his mathematical talents.

At [91] the primary judge described that part of the Tribunal’s consideration as “serious”.

61    At [145], after setting out the appellant’s claims (including those of being an academic refugee), the primary judge concluded that the Tribunal did examine those claims and did not treat those claims lightly.

62    At [156], the primary judge concluded that “read as a whole, it was open to the Tribunal to form a conclusion that the [appellant’s] claim to fear harm on the basis of his work in mathematics was not credible”. He determined that that conclusion was “based on logical and reasonable inferences that arose from the evidence and circumstances”.

63    Contrary to ground three, the claim by the appellant that he was an academic refugee was considered by the primary judge. There was no appealable error in that consideration. Ground three is dismissed.

Ground five

64    By ground five, the appellant explains that whilst “the Court did acknowledge my mathematical talents” and “felt that I could apply for the Global Talent Visa to stay” in Australia, he could not “apply for that visa as I am a refugee”.

65    The ground does not expose any appealable error. First, the ground fails to identify or express any appealable error. Even if accurate, it does no more than identify an acknowledgement and view of the primary judge. Second, and in any event, the contents of the ground are not consistent with the primary judge’s reasons. At [158], the primary judge noted that the appellant had said “that he believes that he has the talent to contribute to the educational community if he is allowed to stay in Australia” and that the appellant had said “Australia has created visas for people in the science and mathematics fields.” That is, the primary judge recorded both of those matters as being raised by the appellant rather than himself “acknowledging” the accuracy of the statements. The primary judge then concluded (at [159]) “these matters appeal to the merits of the [appellant’s] claim and do not assist him on judicial review”. I see no error in that approach. Ground five should be dismissed.

The additional issues and considerations raised by the written submissions (and not raised in the notice of appeal)

Issue one

66    By issue one, the appellant complained that to “ensure a fair and just process, my case must be granted effective legal representation during this review…”. I note that this complaint relates to “this review”; the appellant does not complain that the proceedings before the primary judge miscarried because the appellant was not represented.

67    Rule 4.12 of the Federal Court Rules 2011 (Cth) confers a discretionary power upon the Court to “refer a party to a lawyer for legal assistance”. That rule relevantly provides that:

(1)    The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate…

(2)    When making a referral under subrule (1), the Court may take the following matters into account:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding;

(d)    any other matters the Court considers appropriate.

68    Rule 4.13 of the Federal Court Rules expressly states that a party has no right to apply for a referral. This rule was considered by Barker J in Fuller v Toms [2012] FCA 27; 247 FCR 440, where his Honour stated at [94] that this rule “emphasises the breadth of the Court’s discretionary power to control the referral process. That said, there is no difficulty with a party raising the question of a referral … as a means of initiating the Court’s consideration of the exercise of its discretion”.

69    The Minister submits, and I accept, that there is also no common law “entitlement” or absolute right to legal representation: see ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25] per Flick J and the cases referred to there.

70    In considering a grant of legal representation, it must be recognised that the Court has responsibilities to all parties, especially those unrepresented. The Court has “an obligation to ensure that [an unrepresented party] suffers no meaningful disadvantage in the conduct of his or her case because she or he does not have the skills or knowledge of a lawyer”: MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J (as her Honour then was). The Court will be cognisant of the difficulties faced by litigants in person and approach the hearing in a way conducive to ensuring they are properly heard and are not disadvantaged: see BSY16 v Minister for Home Affairs [2019] FCA 140 at [6] per Thawley J, citing MZAGE at [32].

71    In the present case, there was no explanation from the appellant as to why, in the three-year period of this appeal, he had not been able to obtain his own legal representation. There was no explanation of his means or his capacity to obtain legal representation.

72    The mere fact that a party is unrepresented is not a sufficient reason of itself to warrant a referral for legal assistance: see ADF15 at [29]. Referrals should be reserved, generally, for those cases which are perceived to have appropriate merit and in circumstances where the Court would be particularly assisted by a legal practitioner.

73    I am not satisfied that in the present circumstances, including the merits of the appeal, such a referral or order for representation is appropriate.

Issue two

74    By issue two the appellant complains that the Tribunal “allotted an exceedingly brief half-hour hearing and promptly issued a decision on the same date” and adopted a “hasty approach” in order to address a “backlog of cases during the Covid pandemic”.

75    Section 425 of the Act (as it was at the relevant time) obliged the Tribunal to invite the appellant to appear at a hearing to give evidence and present arguments in relation to the issues under review. That invitation must not be a hollow shell or an empty gesture: see Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; 183 ALR 188 at [31] (Goldberg J). The Tribunal is to provide a real and meaningful opportunity to participate in the hearing. There is no obligation to hold a hearing of a particular duration.

76    In the present circumstances, the Tribunal invited the appellant to two hearings (on 12 May and 16 July 2020). The first was conducted by telephone and the second by video hearing: see [15] – [16] above. At the second hearing, the appellant was provided a further opportunity to respond to some of the “difficulties raised by [his] application” identified by the Tribunal in the first hearing: see [32] of the Tribunal’s reasons. The appellant attended both hearings. He made submissions and tendered evidence. The Tribunal issued oral reasons on 16 July 2020. It later, on 30 July 2020, provided a written statement of its reasons. There is no doubt that the Tribunal was empowered to give oral reasons by (what was then) s 430D of the Act.

77    The Tribunal noted in its written decision of 30 July 2020 that it had regard to two President’s Directions titled ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’ dated 27 April 2020 and ‘Conducting Migration and Refugee Reviews’ dated 1 August 2018. In particular, the Tribunal noted that it had regard to the statements in those directions that members are to take all reasonable steps to complete cases allocated to them as quickly as possible; and members should address only the elements of the protection visa criteria that are necessary to resolve the application on review. I am not satisfied that the duration of the hearing, or its conduct otherwise including by its oral reasons, gave rise to any jurisdictional error. I am satisfied that the Tribunal provided the appellant a real and meaningful opportunity to participate in the hearing.

Issue three

78    By issue three the appellant complains that the Tribunal refused to consider, and deemed irrelevant, his evidence of his mathematical ability; namely his mathematics book, “T-advanced Sequence & Series”. The appellant submits that the refusal “contributed to the miscarriage of justice” in his case.

79    The written record of the Tribunal’s decision relevantly states:

[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.

80    At [53], the Tribunal dealt with the appellant’s claims of being a “talented mathematician living under constant threat in India because of the jealousy of other mathematics students”. Having accepted that the appellant was a “talented mathematician”, the Tribunal considered the question of the “constant threat”. The Tribunal (at [53]) recorded: “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”. At [55], the Tribunal concluded: “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”.

81    The Tribunal approached the book on the basis that it went to establish that the appellant was a talented mathematician. Having accepted that fact, there was no error (jurisdictional or otherwise) in failing to have further regard to the book. The book was not tendered as a publication in a “recognised scholarly forum”. There is also no evidence before me that indicates that the book is published in a recognised scholarly forum. The book did not otherwise go to the potential threats as a consequence of such publication. There was no “miscarriage of justice” in the Tribunal’s treatment of the appellant’s mathematics book.

82    That approach is consistent with the conclusion of the primary judge who found at [90]:

In relation to the [appellant’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 [appellant] 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 [appellant’s] circumstances and the reasons why this allegedly caused him to fear harm. Ultimately, the Tribunal was not satisfied that the [appellant] was of interest because of his mathematical talents.

83    I find no jurisdictional error of the Tribunal or appealable error of the primary judge on this issue.

Issue four

84    By issue four, the appellant complains that the “fact that other inter-ethnic cases may have been dismissed or found to lack merit should not automatically lead to the same conclusion” in his case and that the Tribunal’s “failure to distinguish these cases based on their individual circumstances is a jurisdictional”.

85    Construing this ground as generously as possible, it appears the appellant is alleging that the Tribunal prejudged his application in failing to distinguish his case from “other inter-ethnic cases” or otherwise failed to consider the entirety of his application by failing to consider the appellant’s “individual circumstances”.

86    Neither of those allegations are made out on the material before me. The Tribunal’s reasons do not go so far as to mention other cases with similar claims for protection, let alone analogise them or rely on them as a reason for its finding. The Tribunal’s reasons continually mention and consider the appellant’s individual circumstances, ultimately finding that the appellant’s lack of evidence to support his claim for protection demonstrates that his claim lacks credibility. Issue four is dismissed.

Issue five

87    By issue five, the appellant states that “my life is still in danger if I return to Punjab and India [due to my] inter-ethnic relationship and [status as an] academic refugee”.

88    I have found that the Tribunal gave adequate consideration to whether the appellant’s life was still in danger due to his relationship and status as an academic refugee in my consideration of grounds 3 and 4: see [48] – [52] and [58] – [63] of this decision. In these circumstances where the Tribunal adequately considered those matters, issue five goes no higher than seeking that this Court review the merits of the Tribunal’s decision. The Court does not have the jurisdiction to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Considerations one, two, three and four

89    The appellant’s written submissions raise a number of additional considerations that are not raised in the notice of appeal. The considerations canvass the appellant’s past, present and possible future contributions to Australian society.

90    It is commendable that the appellant has established strong bonds in the mathematics and Sikh communities in Australia and feels that his mathematical skills would be of benefit to Australian society. However, the considerations raised by the appellant do not raise a ground of jurisdictional error in the Tribunal’s decision or appealable error in the primary judge’s decision. This Court is not empowered to consider whether extenuating circumstances relating to the appellant’s contributions to Australian society justify granting the appellant a protection visa. These considerations go no higher than seeking that this Court review the merits of the Tribunal’s decision. Accordingly, they are dismissed.

DIPSOSITION AND COSTS

91    For all of the reasons set out above, the appeal is dismissed.

92    Pursuant to r 40.43 of the Federal Court Rules, the Minister sought an order for costs of $4,000. Rule 40.43 relevantly provides that if a migration appeal is dismissed after a hearing, the successful party may claim the costs and disbursements of the appeal in the fixed amount set out at item 15.1(d) of Sch 3 of the Rules. The item provides for an amount of $8,323. I accept the Minister’s submission that that the Court has a discretion in relation to costs to make a fixed costs order in a reduced amount: see BAX16 v Minister for Immigration and Border Protection [2018] FCA 181.

93    I am satisfied that making a costs order of $4,000 is reasonable and “proportionate to the nature including the complexity of the case”: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 at [18] and CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 855 at [45]. I am satisfied that fixing such an amount is an appropriate exercise of the Court’s discretion to fix an amount of costs. I will make an order that the appellant pay the Minister’s costs in the sum of $4,000.

Associate:

Dated:    2 May 2025