Federal Court of Australia

CMU19 v Minister for Immigration and Multicultural Affairs [2026] FCA 1199

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

DOWNES J:

1    This is an appeal from orders made by the Federal Circuit and Family Court of Australia (Division 2) on 7 March 2025: CMU19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 309 (judgment or J). The primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent (Tribunal) dated 28 May 2019, which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellants protection (Class XA) (subclass 866) visas. That decision was made on 13 May 2016.

2    The factual background is contained in J [3]–[19]. The grounds advanced by the appellants before the primary judge are identified at J [20] being:

(1)    Ground 1: The Tribunal failed to exercise its jurisdiction to assess the credibility of the First Applicant in a professional manner or exercised it in a manner that was unreasonable.

(2)    Ground 2: The Tribunal’s refusal to call a witness was so unreasonable as to amount to jurisdictional error.

3    The appellants were legally represented in the hearing before the primary judge.

4    The appellants were informed of the date, time and location of the hearing of this appeal by the Registry by email dated 29 May 2026, and the Minister’s solicitors provided the same information in an email dated 22 July 2026. The email address to which this correspondence was sent was as stated in the Notice of Appeal. On 1 May 2026, the appellants were ordered to file and serve written submissions, but they failed to do so and also failed to appear at the hearing today. As they have failed to appear, the appeal will be dismissed with costs.

5    In any event, there are four appeal grounds raised by the appellants’ Notice of Appeal, none of which have any merit. That is for the following reasons.

Ground One

6    The first ground of appeal asserts error by the primary judge in failing to find that the Tribunal had denied the appellants procedural fairness, and in failing to find that the Tribunal had failed reasonably to exercise its discretion to call their witness.

7    It is not apparent from the Notice of Appeal what the asserted denial of procedural fairness is claimed to be, and no submissions have been provided which identified it. Further, no such contention was advanced before the primary judge, and the appellants have not sought leave to advance it. As the Minister submits, the appellants should not be permitted to advance a fresh case of jurisdictional error against the Tribunal’s decision. This is especially having regard to the prejudice to the Minister if such a course was permitted: see AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804 (Perram J) at [14] cited by the Full Court with approval in BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 (Perram, Perry and O’Callaghan JJ)).

8    As to the complaint about the failure to call a witness, this aspect of ground one is in similar terms to ground three, and fails for the same reasons that ground three fails.

9    For these reasons, ground one is rejected.

Grounds Two and Three

10    By the second ground of appeal (although called Ground 1 in the Notice of Appeal), the appellants assert that the Tribunal erred in failing to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained. Once again, no contention of this kind was advanced in terms before the primary judge and for the same reasons as for ground one, it is rejected.

11    In the particulars to ground two, the appellants state that “[a] critical fact … was whether the Applicant [sic] had filed complaints with the police about certain incidents which the Tribunal found had not occurred. The Tribunal had before it copies of the complaints and written evidence from a witness who claimed to have verified and confirmed the authenticity of the documents”. Having regard to these particulars, the complaint appears to be related to the primary judge’s rejection of the second ground of review as identified in the judgment, rather than being particulars to ground two.

12    For this reason, it is convenient to deal with the second ground and the third ground together, as the third ground of appeal effectively restates the second ground of review before the primary judge (although ground three is called Ground 2 in the Notice of Appeal).

13    However, for the following reasons, there was no error by the primary judge in rejecting the second ground of review.

14    The request to take evidence from witnesses in this case, including a named person (proposed witness), fell outside s 426(2) of the Migration Act 1958 (Cth): J [57] and [61]. The relevant facts relating to the manner in which the Tribunal dealt with the request to call the proposed witness are stated at J [42]–[53].

15    In its decision, the Tribunal gave reasons for not calling the proposed witness to give evidence. In particular and as recorded at J [54], it noted that:

… While the Tribunal has considered this request, it has also considered that the applicant has already provided statutory declarations from these two witnesses and the Tribunal indicated to the applicant at hearing that he could provide any further written material and also wrote to him under section 424A. In these circumstances, the Tribunal finds there was nothing to stop the applicant from submitting all the evidence that he wanted the Tribunal to consider and indeed, what he has submitted over the course of his protection visa application is considerable. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before, during and after hearing to provide all the evidence that he wanted the Tribunal to consider.

16    After citing the applicable provisions of the Migration Act that applied to the Tribunal in considering requests by a review applicant to call evidence from a witness, the primary judge identified relevant case law, namely AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 and AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424 (Colvin J) at [35], [36] and [39]. Before the primary judge, the appellants’ legal representative did not contend that the approach in AOO16 was not applicable in this case: J [61].

17    The appellants’ solicitor below did not identify a critical fact, let alone any fact, about which the proposed witness could give oral evidence. His Honour was therefore not satisfied that the failure by the Tribunal to call evidence from the proposed witness meant that the whole review lacked the requisite reasonable character such that jurisdictional error was established: J [63]–[64]. This was, with respect, an orthodox application of the statements by Colvin J in AOO16 which were identified at J [60].

18    In my view, no error in the approach taken by the primary judge has been established. It follows that grounds two and three must fail.

Ground Four

19    The fourth ground of appeal is a restatement of the first ground of review before the primary judge. The relevant facts relating to this issue are stated at J [24]–[28] and the primary judge’s consideration of the first ground of review are found at J [29]–[41].

20    By the Notice of Appeal, the appellants do not identify any error by the primary judge in rejecting the first ground of review. In my view, the consideration by the primary judge of that ground involved a fair appraisal of the Tribunal’s approach and decision, and there is no discernible error.

21    Of course, the Tribunal was permitted to assess the credibility of the first appellant’s claims by reference to the coherence and consistency of his oral evidence at the Tribunal, and with some reasonable expectation that he would be able to recall the central events around which his protection claims were based. This is not a case where the Tribunal’s expectations of consistency were unreasonably high, and nor did the Tribunal impugn the first appellant’s evidence on the basis of slight or minor differences in the presentation of his claims.

22    It was a matter for the Tribunal to assess the first appellant’s testimony for itself, and to decide whether he was a truthful witness struggling to provide a consistent and detailed recollection of events for legitimate reasons, such as nervousness or because he had forgotten dates and months, or whether he was making up his evidence. That task was one for the Tribunal, which it was required to undertake reasonably, and on the evidence before it. There is no basis to conclude that it did anything other than just that. For this reason, ground four must also fail.

Conclusion

23    For these reasons, the appeal will be dismissed with costs to follow the event.

Associate:

Dated:    20 August 2026