Background
CMU19 and CMV19 sought protection (Class XA) (subclass 866) visas. A ministerial delegate refused the applications in May 2016, and the Administrative Review Tribunal affirmed that refusal in May 2019. The Federal Circuit and Family Court of Australia (Division 2) later dismissed the appellants’ judicial-review application.
The appellants appealed to the Federal Court, challenging the Tribunal’s assessment of the first appellant’s credibility and its decision not to call a proposed witness. Although notified of the appeal hearing and ordered to file written submissions, they neither filed submissions nor appeared. The Minister appeared, while the Tribunal filed a submitting notice except as to costs.
The Court’s Holding
Justice Downes dismissed the appeal with costs because the appellants failed to appear. The Court also considered the four grounds pleaded in the notice of appeal and held that none had merit.
The procedural-fairness and “obvious inquiry” contentions had not been advanced below, leave had not been sought to raise them, and allowing a new case of jurisdictional error would prejudice the Minister. The Tribunal had also acted reasonably in declining to call the proposed witness: it already had statutory declarations, had invited further written material, and had given the appellants a fair opportunity to submit their evidence. No critical fact on which oral testimony was required had been identified.
The Court further found no error in the primary judge’s treatment of the Tribunal’s credibility findings. The Tribunal was entitled to assess the coherence and consistency of testimony concerning central events, and its expectations were not unreasonably demanding or based merely on minor discrepancies.
Key Takeaways
- An appeal may be dismissed when appellants who received notice fail to file ordered submissions and do not appear at the hearing.
- A new jurisdictional-error argument generally cannot be introduced on appeal without leave, particularly where doing so would prejudice the respondent.
- A migration tribunal does not necessarily act unreasonably by declining to call a witness when written evidence has been received, further material was invited, and no critical fact requiring oral evidence is identified.
Why It Matters
The decision underscores that migration appellants must identify an error by the primary judge, rather than merely repeat unsuccessful judicial-review grounds. It also confirms that courts will examine the Tribunal’s process as a whole when deciding whether its handling of witness evidence or credibility issues lacked the reasonable character required by law.