Federal Court of Australia

FDB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 1612

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

O’CALLAGHAN J:

Introduction

1    This is an appeal against a decision of a single judge of the Federal Circuit and Family Court of Australia (Division 2) to dismiss an application for judicial review against a decision of the Administrative Appeals Tribunal made as long ago as 17 November 2017, which affirmed a decision of the delegate of the Minister not to grant the appellant a protection visa: see FDB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 626.

2    There is one ground of appeal, namely that the learned primary judge erred “by not concluding that the [Tribunal] committed jurisdictional error by unreasonably deciding not to call corroborative witnesses for reasons that were, or included, invalid or unintelligible reasons”.

3    The power to receive oral evidence was contained in s 427 of the Migration Act 1958 (Cth), which empowered the Tribunal to take evidence on oath or affirmation. It was common ground that that power was discretionary – that is, the Tribunal had a discretion whether or not to take evidence from a nominated person: see s 426(3) of the Migration Act (the Tribunal was “not required” to obtain evidence from a person named in a relevant notice); and AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [48] (Tracey and Mortimer JJ).

Facts

4    The appellant is a citizen of Pakistan. He arrived in Australia in February 2016, and applied for a protection (class XE-790 Safe Haven Enterprise) visa in October 2016.

5    He applied to the Tribunal for review of the delegate’s decision to refuse his visa application. The Tribunal hearing occurred on 6 September 2017.

6    Ahead of the hearing, in response to a hearing invitation notice, the appellant provided details of four witnesses that the appellant requested to call to give oral evidence (his mother, his father, his brother, and a friend) and a short letter signed by each of the four witnesses that provided information about the appellant’s claim. The response was as follows:

My mother […] will give evidence that MQM have recently attended our family home asking about my whereabouts.

My father […] will give evidence that he has been approached in the community, in recent months, by MQM members asking questions about me.

Mr brother […] will give evidence that I still have high risk in Pakistan and MQM party searching for me to kill and still MQM party people come our home to ask about me

My friend […] will give evidence that [the appellant’s] life is not save in Pakistan many time I saw the MQM party people asking about him and they were talking about we will kill him whenever he will come in Pakistan

7    With that document, the appellant also forwarded to the Tribunal a single joint written statement that each of the four proposed witnesses had signed, which read:

To whom it may concern, [we] …, would like to inform you about the situation that what we are going through in Pakistan regarding our son [name omitted]'s case.

We are keep getting threats from Mohajir's community MQM and they are keeping an eye on our social activities. They (Mohajir's community MQM) stopped us on several occasions in last year and this year in public places and enquire about [the appellant] that where is he, what is he doing? We want him. We also have a witness of this Incident. They also threat us that if they couldn't find [the appellant], they can also harm us. They are giving us a tough time.

We are requesting to respected Australian immigration that please allow our beloved son to live happy and safe in Australia.

8    A transcript of the Tribunal hearing was in evidence before the primary judge. It records the Member questioning the appellant in detail about his protection claims, which were premised on threats of violence and persecution faced by the appellant from Muttahida Quami Movement (MQM) activists between 2008 and 2012.

9    During the hearing, the Member referred to the appellant’s request to call witnesses to give oral evidence:

MEMBER: So you provided a list of witnesses, your friend and your family, I don’t propose to phone them because I’m not going to phone the country you say you fear to return to, also I can’t know who I’m talking to. And I think I will make credibility findings about your story having listened to you. I do notice you’ve provided a statement, right so this is all the country information you’ve provided. I can only take into account what’s in English or has been translated.

10    In referring to the signed letter, the Member had the following exchange with the appellant:

MEMBER: … All right, now just looking at the letter signed by your father, mother, brother and witness - that was prepared for this appeal?

INTERPRETER: Yes, this is what you ask me and this was the proof that - I have to show you that they’re still living there.

MEMBER: As I said, I will consider this document but it may be that the weight I give it might depend on the weight I give your credibility as a witness.

11    The Tribunal’s reasons said this about the appellant’s request to call the four witnesses:

17.    The applicant listed people he wanted the Tribunal to phone as witnesses: his father, mother, brother and a friend. He indicated these witnesses would give evidence that the MQM were asking about the applicant’s whereabouts and threatening him and the family. But as I pointed out to the applicant, the family members and friend were in Pakistan and I did not propose to call phone numbers in the country of reference, nor could I be sure of the identity of the person phoned. As well, he had already provided a letter signed by the family members and friend that made such claims.

(Emphasis added.)

12    The Tribunal’s reasons included a summary of the appellant’s key claims, as follows:

13.    The applicant claims to fear persecution in Pakistan from [MQM] party activists. His key claims as summarised are:

•    In 2001 he opened a clothing shop named Siddiqui Cloth House at Bolton Market in Karachi.

•    As a shopkeeper he paid extortion money to MQM activists, until he and other shopkeepers stopped giving money in 2008. The activists then hassled and threatened him and stole shop goods.

•    On 28 December 2009 a Shia Ashura Day procession was suicide bombed in Karachi and that night the market watchman observed the MQM activists looting and burning market shops including the applicant's shop. The watchman phoned the applicant to tell what had happened.

•    On 31 December 2009 the applicant filed with the police a written complaint against a named MQM activist. A copy of the complaint has been provided.

•    The MQM activists became aware of the written complaint and demanded he withdraw it when they assaulted him two times in early 2012. Then on 5 March 2012 he was abducted and threatened with death.

•    On 6 March 2012 he went to the police and withdrew the complaint, but then also lodged a fresh written complaint about the abduction. A copy of the second complaint has been provided.

•    He was worried the MQM activists would become aware of the second complaint so in 2013 and 2014 he stayed for long periods with aunts in Sukkur city and Shekarbur city, and while he was away strangers asked after him three times.

•    In November 2015 he used a genuine Pakistan passport to travel to Malaysia.

•    In February 2016 he used a false identity to travel to Australia.

•    Since he departed Pakistan, MQM activists have asked the family where he is and threatened to kill him if he returns to Pakistan. He provided a letter from the parents and a friend to support this.

14.    The applicant claims he has a well-founded fear of returning to Pakistan arising from his:

•    Political opinion. He fears the MQM party activists will harm him because of his political opinion (actual or imputed) against the MQM party. This arose when he refused to pay money to the party, and he then refused to withdraw a police report he had lodged against the party, and he then lodged a second police report against the party.

•    Membership of a particular social group, of Sindhi shopkeepers in Karachi.

•    Race. He fears the MQM party, other ethnic groups, and Urdu speakers will harm him because he is of Sindhi ethnicity.

(Emphasis added.)

13    I interpolate to say that at the hearing before me, the Minister agreed that the two reasons which I have italicised in [17] of the Tribunal’s reasons (at [11] above) were not sufficient to provide a rational and intelligible reason not to obtain the corroborating witnesses’ evidence. The Minister relied on the third reason, being that the appellant “had already provided a letter signed by the family members and friend that made such claims”.

14    Paragraphs 41 and 42 of the Tribunal’s reasons read:

41.    The applicant made a new claim to the Tribunal by providing a letter from the family and a friend addressed to the Tribunal that stated in the past two years on several occasions when out in public the "Mohajir's community MQM" stopped them and without giving reasons enquired about the applicant and threatened to harm them if he was not found. But as I pointed out, it is not believable that while he was in Pakistan from 6 March 2012 to November 2015 nothing bad happened to him and only after he was in Australia several years later did the activists then intensify their search for him and start making death threats.

42.     As well, as I discussed at the hearing, the September 2017 DFAT report indicated that in Karachi the federal para-military Rangers deployed there since 2013 had heavily targeted the MQM. The crackdown on political and criminal violence in Karachi, with thousands of arrests, detentions and deaths of criminals had significantly disrupted the MQM's criminal activities, and violence by groups linked to political parties had significantly reduced. As I pointed out, in light of the Rangers' sustained focus on political parties and crime in Karachi over a number of years including before and after the applicant departed Pakistan, the activists would have had bigger problems than the applicant and his claimed complaints that were by then years in the past. The applicant responded that there have still been bomb blasts in Pakistan as reports he provided showed, while the Rangers have made arrests maybe they will go away, and maybe the activists after him had not been arrested. Nonetheless, my point was that the Rangers have been in Karachi targeting and disrupting political crime throughout the period the applicant claims the activists' interest in him has increased. In sum, the applicant's claim that the MQM's interest in him increased and intensified as the years go by is not believable. I give greater weight to my concerns with the applicant's narrative and evidence than I do to the letter sent by family for the purposes of supporting the applicant's Tribunal matter.

(Emphasis original.)

15    Paragraph 46 of the Tribunal’s reasons read:

46.    Having considered the claims and evidence, I do not accept his claims that:

•    In 2001 he opened a clothing shop named Siddiqui Cloth House at Bolton Market in Karachi.

•    As a shopkeeper he paid extortion money to MQM activists, until he and other shopkeepers stopped giving money in 2008. The activists then hassled and threatened him and stole shop goods.

•    On 28 December 2009 a Shia Ashura Day procession was suicide bombed in Karachi and that night the market watchman observed the MQM activists looting and burning market shops including the applicant's shop. The watchman phoned the applicant to tell what had happened.

•    On 31 December 2009 the applicant filed with the police a written complaint against a named MQM activist.

•    The MQM activists became aware of the written complaint and demanded he withdraw it when they assaulted him two times in early 2012. Then on 5 March 2012 he was abducted and threatened with death.

•    On 6 March 2012 he went to the police and withdrew the complaint, but then also lodged a fresh written complaint about the abduction.

•    He was worried the MQM activists would become aware of the second complaint so in 2013 and 2014 he stayed for long periods with aunts in Sukkur city and Shekarbur city, and while he was away strangers asked after him three times.

•    Since he departed Pakistan, MQM activists have asked the family where he is and threatened to kill him if he returns to Pakistan. A letter from the parents and a friend supports this claim.

(Emphasis added.)

16    The Tribunal went on to make detailed credibility findings about the appellant’s evidence and rejected the majority of the appellant’s claims.

17    Under the heading “Assessment of claims: credibility”, commencing at [22], the Tribunal made a series of findings adverse to the appellant’s credibility on nearly all of his claims. The Tribunal only accepted that the appellant was a Pakistani national, a Sunni Muslim and a Sindhi. Otherwise, the Tribunal largely rejected his claims because it did not believe he was telling the truth.

18    The Tribunal found it did “not accept that he was ever a businessman and shopkeeper as he claims”. Despite his claims to have established a “[l]adies wholesale clothes” business and opened a shop in 2001, this claim was not “believable as in 2001 he had only turned age 17 and was finishing year 10 of high school”. The Tribunal found that his explanation for how “he managed to establish a business and operate a shop while at the same time undertaking college study including a degree course up to 2006 [was] unpersuasive”. It also found that:

28.    I disbelieve that no tax records for such a business were kept other than in writing in the shop or that such records cannot be accessed now. Further, his evidence that he had no photos that showed the shop and him at the shop, is difficult to accept in light of his narrative that establishing the business and shop fulfilled a significant passion he had.

19    The Tribunal concluded its consideration of that part of the appellant’s claim that he was a businessman and shopkeeper, as follows:

30.    Having considered the applicant's evidence and documentary evidence I disbelieve that as a 17 year old teenager completing Year 10, and with no business experience or expertise in wholesaling or shop operation or in women's clothes, he established a wholesale women's clothing business and opened a shop in a Karachi market. I disbelieve that over the next several years he was able to operate the business as sole owner while at times also completing courses including an Economics degree. It may be that there is a clothes shop operated by a family member in Karachi but I do not accept that the applicant was the shopkeeper and owner of the business. I find that the applicant is not a credible witness and has fabricated his claims and narrative about the business and shop operated by him and the related adverse interest of MQM activists.

20    The Tribunal also rejected that the appellant had attracted the adverse interest of MQM activists, as follows:

31.    As I do not accept he was a shopkeeper in a market I do not accept that: he came to the attention of MQM activists who extorted money from him; activists hassled him and stole from a shop he operated; activists torched a shop he operated; he lodged a complaint with the police; activists then assaulted, threatened and abducted him; he lodged a second complaint; thereafter activists searched for him, threatened the family and continue to have an adverse interest in him.

21    The Tribunal rejected the appellant’s claim that “MQM activists had looted and torched the shop”. It found “it is difficult to accept that he failed to discuss this serious matter with any other shopkeepers whose shops were similarly destroyed”.

22     A little later in its reasons, the Tribunal said this:

38.    The applicant has given an account of increasingly violent interactions with the MQM activists finally leading to abduction with a violent assault and being threatened with death while two guns were placed to his head. At the hearing he agreed this had caused him great fear. In light of this it is difficult to accept his story that he went to the police and withdrew the written complaint dated 31 December 2009 but then immediately made another written complaint about the abduction by MQM activists whom he named and in which he fully explained why he was withdrawing the first complaint. The applicant responded to my concerns by saying that if he was later killed there was evidence of who had killed him, and his parents pressured him to make the second complaint. But as I pointed out it makes no sense for him to have made a second complaint so that it would be known who had killed him, if the making of the second complaint was the very action that would lead the activists to kill him. As I pointed out it is not likely that his parents would pressure him to do an act that would likely attract the adverse interest of the activists and lead to their son's murder. In sum I find improbable the applicant's narrative and evidence about withdrawing the first complaint because of a great fear of being murdered, but then lodging an even more detailed written complaint against the activists. My great concerns with the applicant's narrative and evidence, together with my findings that he is not a credible witness and has fabricated claims, and the country information about false and fraudulent FIRs from Pakistan, lead me to find the FIRs are fraudulent and I give the documents no weight.

(Emphasis added.)

23    The Tribunal also noted in the appellant’s story that, despite his alleged abduction and being threatened with death in March 2012, he had lived in Pakistan “for almost four years […] without incident” and that he only departed Pakistan in November 2015, were claims that did not support his story of fleeing Pakistan as a result of the abduction and death threat.

24    The Tribunal also found that “it is not believable that while he was in Pakistan from 6 March 2012 to November 2015 nothing bad happened to him and only after he was in Australia several years later did the activists then intensify their search for him and start making death threats”.

25    The Tribunal concluded on the issue of the appellant’s credibility:

43.    My great concerns with significant elements of the applicant's narrative and evidence lead me to find he is not a credible witness. I find that he has fabricated the story about owning and operating a shop in a market in Karachi, and coming to the adverse attention of the MQM and its activists. I do not accept that the MQM activists have in the past or now, any interest in him for the reasons he claims.

The reasons of the primary judge

26    The primary judge concluded (at [55]) that “the Tribunal’s reasons disclose that the rational and intelligible foundation for not obtaining the oral evidence was that … the [appellant’s] credibility was so compromised that evidence from corroborating witnesses could not affect the outcome”, citing among other cases Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49] (McHugh and Gummow JJ); SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414 at [41] (Rangiah J); and AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103 at [97] (Tracey and Mortimer JJ) for the proposition that a party’s credibility may have been so weakened that the tribunal of fact may well treat what is proffered as corroborative evidence of no weight “because the well has been poisoned beyond redemption”.

Legal principles

27    There was no disagreement between the parties about any issue of legal principle. Nor was it suggested that the primary judge did not correctly address relevant legal principles.

28    The single issue is whether the primary judge erred by not concluding that the Tribunal unreasonably decided not to call corroborative witnesses for reasons that were, or included, invalid or unintelligible reasons.

Consideration

29    In my view, and despite Mr Aleksov’s attempt to persuade me otherwise, it is pellucidly clear that the Tribunal did regard “the well” as having been well and truly “poisoned”, and that it was sufficient for it to have regard only to the written statement of the witnesses (quoted at [7] above).

30    As Gleeson CJ said in Applicant S20/2002 at [12]:

[12]    It was contended that this passage shows that the tribunal member adopted a flawed approach to her evaluation of the evidence, failing to assess the evidence of the applicant/appellant in the light of the corroborating evidence, and giving no weight to the evidence of the corroborating witness for reasons that had nothing to do with the quality of that evidence. The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

31    In my view, this is a case in which it was not irrational or illogical for the Tribunal, convinced as it was that the appellant had not told the truth about many matters fundamental to his claims, to decline to hear oral evidence from the four named witnesses. As the primary judge said at [55], and I agree: “[r]eading the reasons as a whole the Tribunal’s reasons disclose that the rational and intelligible foundation for not obtaining the oral evidence was that … the [appellant’s] credibility was so compromised that evidence from corroborating witnesses could not affect the outcome”. And another rational and intelligible foundation for not obtaining the oral evidence was that the appellant had provided, and the Tribunal had regard to, the letter signed by family members and a friend that made claims about threats to the appellant and his family from the MQM: see Tribunal reasons at [17]; [42] (last sentence); and [46] (last dot point).

32    Further, as McHugh and Gummow JJ explained in Applicant S20/2002 at [49], a decision is not irrational merely because an alternative course might have been preferable. Their Honours observed that where a decision-maker concludes that a party’s account is fundamentally unreliable, it may rationally proceed on the basis that purported corroborative evidence could not alter that conclusion, because “no corroboration can undo the consequences” of the finding that the account advanced by the party is untrue. Consistently with that reasoning, the question is not whether the Tribunal could have adopted a different approach, but whether the course it in fact adopted lacked a rational and intelligible foundation.

33    As Wigney J said in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 at [71]:

71    It is readily apparent that the Tribunal, having already heard and considered the appellant’s own evidence concerning his claims, determined that there was no point in telephoning any of the seven prospective witnesses to have them repeat the evidence contained in their statements. That was because, to the extent that the evidence corroborated the appellant’s evidence, it would nevertheless not overcome the Tribunal’s “concerns” that the appellant was not a credible witness who had fabricated his claims. In those circumstances, it was not irrational, illogical or unreasonable for the Tribunal to, in effect, determine that the corroborating evidence, even if repeated orally on oath or affirmation by the witnesses over the telephone, was deserving of no weight, or should be rejected as being unreliable or not credible.

34    In this case, Mr Aleksov submitted that “[h]ad the four witnesses been allowed to give oral evidence, it’s obvious they would have given details which were capable, or might have been capable, of persuading the tribunal the truth of the claim [about the MQM]”.

35    But that, with respect, is speculation.

36    The Tribunal was not obliged to call oral evidence from the witnesses so they could expand or elaborate on what they had said in writing.

37    As Wigney J said in BOX16 at [75]:

75    The appellant contended that the witness statements of the seven persons were brief and that, if the Tribunal had taken oral evidence from them over the telephone, their evidence may have been elaborated on or expanded in some relevant and material way. That submission has no merit. The appellant’s lawyer did not suggest to the Tribunal that the oral evidence of the proposed witnesses would or even might add anything to what they had included in their statements. Nor is there any basis for suggesting that that might be the case. That is a matter of pure speculation.

38    I should add one more point that counsel for the Minister, Mr Crock, touched on in his oral submissions.

39    As Wigney J observed in BOX16 at [72], it may be accepted that, in some cases, a refusal by the Tribunal to call potentially corroborating oral evidence from a witness at the request of the applicant may suggest that the Tribunal had impermissibly prejudged the review application or had otherwise misunderstood its review task or jurisdiction. But in this case (as in BOX16) it is clear from the transcript of the hearing before the Tribunal, as Mr Crock put it, “that the [T]ribunal’s assessment of the credibility of the [appellant] happened throughout the course of the hearing and led to the [T]ribunal’s inclination expressed in the transcript and then decision expressed in the statement of reasons to not hear the oral evidence of the supporting witnesses”. But no submission was made to me that the Tribunal had impermissibly prejudged the question of whether to call the witnesses, so I need not say anything more about it.

40    I should add that the Minister filed a notice of contention, but it was agreed at the hearing that, on any view of the matter, it was not necessary to have regard to it.

Disposition

41    It follows from what I have said, that the primary judge was correct to conclude that the Tribunal had not committed jurisdictional error by deciding not to call the named witnesses.

42    The appeal must be dismissed, with costs.

Associate:

Dated:    29 October 2026