CLD18 v Minister for Home Affairs
[2023] FedCFamC2G 535
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLD18 v Minister for Home Affairs [2023] FedCFamC2G 535
File number(s): MLG 1293 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 23 June 2023 Catchwords: MIGRATION – application for judicial review –whether second respondent misunderstood distinction between applicant giving first-hand account of events as against recounting knowledge of events – whether second respondent misunderstood case put by applicant – whether jurisdictional error occurred – found second respondent did not misunderstand the nature of the evidence given by the applicant – found no jurisdictional error occurred. Legislation: Migration Act 1958 (Cth) ss 474, 476. Cases cited: Craig v South Australia (1995) 184 CLR 163
Plaintiff M1/2021 v Minister for Home Affairs (2002) 96 ALJR 497
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Republic of Nauru v WET040 [No 2] (2018) ALJR 102
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 2 June 2023 Place: Melbourne Counsel for the Applicant: Mr Aleksov Counsel for the First Respondent: Mr Barrington Solicitor for the Applicant: Victoria Legal Aid Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 1293 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLD18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
23 June 2023
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
IN SUMMARY
This is an Application pursuant to s 476 of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the second respondent Administrative Appeals Tribunal (Tribunal).
In the decision the Tribunal affirmed a decision of the delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Class XD) visa (Visa).
For the reasons that follow, the Application is dismissed.
CONTEXT
The applicant is a citizen of Iran who arrived in Australia on 26 March 2013.
The applicant applied for the Visa on 11 July 2013.
The applicant’s claims were set out in a statutory declaration. Relevantly, the applicant claimed that he worked as an accountant in a shop but his employer accused him of stealing and “manipulated the books to make it look like he had stolen money.” He expanded upon those claims at interview before the delegate on 31 October 2014.
On 11 November 2015, the delegate of the Minister refused to grant the applicant the Visa.
The applicant applied for a merits review of the delegate’s decision with the Tribunal.
The hearing before the Tribunal took place on 7 March 2018. The applicant was represented at the hearing by his registered migration agent and had the assistance of a Persian interpreter.
On 18 April 2018, the Tribunal affirmed the decision not to grant the applicant the Visa.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 18 April 2018 (Tribunal Decision).
At paragraph [62] of the Tribunal Decision, the Tribunal said:
… I am satisfied that the applicant has deliberately falsified claims in full knowledge of what he was doing at the time he did it.…
At paragraph [63] of the decision the Tribunal said:
I find the applicant’s evidence regarding his claims to lack credibility for the reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he lied to Commonwealth officials and fabricated his claims in order to be granted a protection Visa.
In relation to the applicant’s claims regarding being wrongfully accused of theft from his employer the Tribunal, relevantly, said as follows:
[73]I do not accept that the applicant was ever accused of theft in the store in which he worked. The account was both vague and implausible. He believed that his log on details were copied or stolen by fellow workers yet did not know how this was done. The money was then transferred to an expatriate Iranian’s account and was then subsequently withdrawn in total from there. He claimed that it was subsequently taken by cheque withdrawal, yet couldn’t say why someone would leave signed blank cheques with someone while they were overseas. When pressed on the issue, he was contradictory and vague as to whether cheques were used, whether they were signed blank cheques, or perhaps forged cheques.
[74]The subsequent events were also implausible. Firstly the applicant’s lawyer allegedly told him that he would be convicted simply because he had no documents and that he was Kurdish. Yet he was also a member of the active Basij, which the lawyer should have been aware of. No attempt at mounting a defence using the applicant’s movements at the time the money was transferred to show that he wasn’t there and couldn’t have done it, or the bank’s CCTV to examine who had cashed the cheques, was made.
[75]I do not accept that a woman in a chador cashed the cheque as he did not say how he arrived at this conclusion. Nor do I accept that cheques could be passed on to 30 people before being cashed. He was asked to provide country information to support such a claim yet he never did. No police investigation was ever conducted, nor was the applicant ever questioned by the police. I do not accept that Iranian police lacked computer forensic capabilities; given country information indicates that a dedicated cyber-crime unit (that included on-line fraud) had been established since 2014.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 11 May 2018. The applicant was self-represented at the time of filing this Application.
The applicant became legally represented on 4 November 2022.
In accordance with the Orders made 26 June 2019, the applicant filed an Amended Application on 3 May 2023.
The Amended Application contains the following sole ground for judicial review:
1.The Tribunal misunderstood the applicant’s case about being falsely accused of stealing money, and thus failed to consider his actual case in this respect.
The applicant filed the following further relevant material:
(1)affidavit of the applicant filed 11 May 2018, annexing the Tribunal’s decision;
(2)affidavit of the applicant’s solicitor filed 3 May 2023, annexing a transcript of the hearing before the Tribunal; and
(3)written submissions filed 3 May 2023.
The Minister filed a Response on 13 July 2018. The Response contained the following grounds:
1.The grounds pleaded by the applicant cannot succeed in the absence of any particulars to make them meaningful.
2.The application for judicial review fails to establish any jurisdictional error in the decision of the second respondent dated 18 April 2018.
The Minister also filed written submissions on 18 May 2023.
THE HEARING
The hearing took place on 2 June 2023.
Applicant’s submissions
The applicant submits that the Tribunal’s statement, at paragraph [73] of the Tribunal Decision, that the applicant’s account was “vague and implausible” was misdirected because the applicant was not purporting to give a first-hand account of the theft but was instead recounting his knowledge of matters based on the accusations made against him. The applicant submits that the Tribunal misunderstood this distinction.
The applicant submits that the Tribunal determined that the applicant was not telling the truth because the applicant was unable to furnish the Tribunal with details of how the money was stolen.
The applicant submits that the reasoning of the Tribunal at paragraph [73] and [75] of the Tribunal Decision does not reflect the case put by the applicant to the Tribunal.
In relation to paragraph [73], the applicant submits that the applicant’s evidence was not that someone had left signed blank cheques to enable the money to be withdrawn; rather the applicant said he did not know the details of how the money was withdrawn and was speculating as to how that may have occurred. Further, the applicant submits that his evidence, when pressed on the issue, was neither contradictory nor vague. The applicant submits that he said cheques were used. He submits he did not give contradictory evidence on this. As to whether the cheques are signed blank cheques, or perhaps forged cheques, the applicant submits that he said he did not know. Finally, the applicant submits that his evidence was not vague. Any vagueness arose from his limited knowledge of what occurred.
As to paragraph [75], the applicant submits that his evidence was not that a woman in a chador cashed the cheque.
The applicant took the Court to, and relied upon, the transcript of the Tribunal hearing, particularly pages 9-14 of the transcript. With reference to the transcript, the applicant submitted that the applicant appeared to be confused by some of the Tribunal’s questions and it was relevant that the applicant’s evidence was given with the assistance of a Persian interpreter.
Minister’s submissions
The Minister submits that the applicant’s case before the Tribunal was more than an assertion that the applicant had been accused of theft by his previous employer. The Minister submits that the applicant’s case, in this regard, comprised two components. Firstly, that the applicant was alleged by his employer to have committed theft and secondly, that the applicant had been “framed for fraud.”
The Minister submits that in that context the Tribunal did not misunderstand the applicant’s case or the nature of the evidence given by the applicant. The Minister submits that the evidence given by the applicant was not the applicant recounting the contents of the allegations against him and that the Tribunal’s decision was open to it for the reasons it gave.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
It is well established that if the Tribunal misunderstood the case being made by a visa applicant that may give rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs (2002) 96 ALJR 497 at [27] (Plaintiff M1). Having correctly understood the applicant’s representations, 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: Plaintiff M1 at [24].
CONSIDERATION
For the following reasons, I do not consider that the Tribunal misunderstood the applicant’s case and reject the submission that the applicant’s claim of being falsely accused of theft was rejected on a misconceived basis.
Firstly, I accept the Minister’s submission that the applicant’s case before the Tribunal comprised the two components asserted. In both the pre-hearing and post-hearing submissions made by the applicant to the Tribunal, the applicant makes reference to being “falsely accused of committing fraud” and makes repeated references to being “framed for fraud”. The applicant’s case before the Tribunal was therefore not, simply, that he had been falsely accused by his employer of theft but included an assertion by him that he had been framed for fraud. It was open to the Tribunal to expect the applicant to provide detail as to how he was “framed”.
Secondly, the Tribunal sets out the evidence given by the applicant at paragraphs [25] – [33] of the Tribunal Decision. That evidence is set out in some detail and commences “Regarding the fraud claim”. Paragraphs [25] –[33] of the Tribunal’s Decision provide, relevantly, that the applicant said:
(a)he did not know how his PIN was stolen;
(b)he did not know how the people who withdrew the money (who he said he thought were other co-workers) (Other Employees) knew the account details of the person who received the money but perhaps those persons had access to the account holder’s chequebook;
(c)he did not know how the persons who cashed the cheque had the account holder’s cheque book if he was overseas;
(d)he did not know exactly but he knew the money had been taken by cheque withdrawal, when asked how the persons who withdrew the money had access to signed blank cheques for a person who was overseas;
(e)he was not sure if the Other Employees had signed blank cheques;
(f)“yes”, when asked to answer yes or no as to whether the Other Employees had signed blank cheques;
(g)he was not sure, when asked how he knew this to be a fact;
(h)when asked again, he was not sure if the Oher Employees had signed blank cheques for the account holder but then said that the question was confusing and possibly forged cheques had been used;
(i)the person who withdrew the money had a cheque from the account holder;
(j)he spoke to a lawyer after he received the court summons who told him he would be convicted because of his race and because he had no documents;
(k)in response to it being put to him by the Tribunal that bank CCTV or the teller would be able to prove that someone other than the applicant had withdrawn the money and therefore it ought be reasonably easy to mount a defence for him, he claimed that a woman in a chador who cashed a cheque would not be identified and that in Iran cheques were passed from person to person, up to as many as 30 people.
This is consistent with the presently relevant evidence given by the applicant, as set out at pages 9-14 of the Transcript.
Thirdly, the Tribunal did not accept the applicant’s evidence that he had been accused of theft by his former employer, saying the applicant’s account was “both vague and implausible”. In support of this statement the Tribunal identified two matters:
(a)firstly, while the applicant believed his log in details were copied or stolen by fellow workers, he did not know how this was done; and
(b)secondly, the applicant said that the transferred money had been withdrawn by cheque but could not say why the account holder would leave signed blank cheques while they were overseas and that the applicant was “contradictory and vague” as to whether cheques were used, whether they were signed blank cheques, or perhaps forged cheques.
As to the first of these matters, the applicant’s evidence before the Tribunal was that “…after working there for some time, the people who work were working there stole from me the password, or the PIN for entering the system in the computer from me..”[1] In response to the Tribunal asking the applicant how his co-workers stole his PIN he said:
I don’t know, maybe they hacked the computer, because, or maybe they have seen it somewhere that I kind of had recorded it, or made a note of it because it was only me and the owner of the business who knew about this PIN number. I think the other workers who are working there had stolen that PIN by hacking or having access to the place that I had recorded it.[2]
[1] Transcript P-8, Line 28-29
[2] Transcript, P-8, Line 35-40
Accordingly, it was the applicant’s contention that his PIN was stolen by his co-workers. He was not recounting a narrative that had been provided to him. Given this, it was open to the Tribunal to expect the applicant to be able to explain how his PIN had been stolen and to accord such weight as it considered appropriate to that evidence. I accept the Minister’s submission that the applicant’s contention as to this is “light on detail” and the applicant’s evidence as to it is vague.
As to the second matter, the following initial exchange occurred between the Tribunal and the applicant:
MEMBER:Okay. So 300 million toman have been transferred to the account of somebody who you don’t know, but who lives outside Iran. So what happened to the money that was in that account? If you said people from the shop took it, how do you withdraw money from somebody else’s account without any of their ID?[3]
INTERPRETER: As I said, two people – the two workers had a cheque book from that person, and the – kind of, that cheque book had been signed, so I don’t know. I’m not sure. But this is what I think, that they could take the money out by drawing those cheques.[4]
[3] Transcript, P-12, Line 5-10
[4] Transcript, P-12, Line 11-15
In response to this exchange, the Tribunal put it to the applicant that it was “highly unusual” for someone to travel overseas and leave blank cheques with their signature on it.[5] When pressed as to whether the applicant knew for a fact that his co-workers had signed blank cheques, the applicant said:
(a)“I’m not sure”;[6]
(b)“Yes, I’m not sure. I can’t answer yes or no because I’m not sure whether it was them; [7]
(c)“Yes”;[8]
(d)“I did not say that I am sure. I said I am unsure I am not definite”;[9]
(e)“Yes, yes”;[10]
(f)“Your questions are very confusing because I - maybe they have forged the cheque”;[11] and
(g)“I don’t know because if I was sure that these people had this cheque-book, I would stay there and would go to the court and definitely, kind of, convicted and because of this.”[12]
[5] Transcript, P-12, Line 18-19
[6] Transcript, P-12, Line 31
[7] Transcript, P-12, Line 35 -36
[8] Transcript, P-12, Line 42
[9] Transcript, P-13, Line 8-9
[10] Transcript, P-13, Line 16
[11] Transcript, P-13, Line 21-22
[12] Transcript, P-13, Line 29-31
Accordingly, it was the initial contention of the applicant that his co-workers had a cheque-book from the account holder to whom the money had been transferred containing signed blank cheques. He was not recounting a narrative that had been provided to him. The accusation made against the applicant by his employer was of withdrawing money by cheque. It was open to the Tribunal to expect the applicant to be able to explain how he knew his co-worker had a cheque book with signed cheques and to accord such weight as it considered appropriate to that evidence. The applicant’s evidence was, variously, that he knew his co-workers had used signed blank cheques, he was not sure if his co-workers had signed blank cheques and he was not sure if his co-workers had the account holder’s cheque-book. In those circumstances, I accept the Minister’s submissions that the applicant’s evidence was vague and implausible (being ill-accorded with the probabilities of ordinary human experience): Republic of Nauru v WET040 [No 2] (2018) ALJR 102 at [35]. Further, in light of the varying responses provided by the applicant to the Tribunal on this issue, I also consider the applicant’s evidence to be contradictory. I do not consider that the applicant was confused or that the use of a Persian interpreter is a relevant matter. As is evidenced by the transcript extracts set out above, the applicant was able to articulate any confusion when it arose.
Fourthly, as to paragraph [75], that paragraph needs to be read in context. Paragraph [32] and [33] of the Tribunal’s Decision provides as follows:
[32]The employer made a complaint and the court gave him a summons. He spoke to a lawyer who told him that he would be convicted because of his race and because he had no documents. He had no documents to prove that he didn’t take the money. It was put to him that bank CCTV or the teller would be able to prove that someone else had withdrawn the money (such as one of the other employees). It should be easy to mount a defence for him so it was strange the lawyer would give him the type of advice he claimed to have received.
[33]In Iran, he claimed that a woman in a chador who cashed a cheque would not be identified, and that in Iran cheques could be passed from person to person. Perhaps 30 people could pass the cheque from person to person and the cheque be cashed only by the 30th person. He was asked to provide some country information to support his claim.
Paragraph [74] of the Tribunal’s Decision provides as follows:
The subsequent events were also implausible. Firstly the applicant’s lawyer allegedly told him that he would be convicted simply because he had no documents and that he was Kurdish. Yet he was also a member of the active Basij, which the lawyer should have been aware of. No attempt at mounting a defence using the applicant’s movements at the time the money was transferred to show that he wasn’t there and couldn’t have done it, or the bank’s CCTV to examine who had cashed the cheques, was made.
Paragraph [75], when fairly read in the context of the decision as a whole, is therefore an explanation as to why the applicant said that CCTV could not be used to identify who cashed the cheque. I reject the submission that it demonstrates that the Tribunal misunderstood the applicant’s case.
It follows that there is no jurisdictional error on behalf of the Tribunal.
The Application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister. I will order that the Minister’s costs be paid as agreed or in an amount to be fixed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 June 2023
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