1509008 (Refugee)

1509008 (Refugee) [2018] AATA 1218 (16 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Divin
CASE NUMBER:  1509008
COUNTRY OF REFERENCE:                  Georgia
MEMBER:Lilly Mojsin
DATE:16 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 March 2018 at 4:48pm

CATCHWORDS
Refugee – Protection visa – Georgia – Imputed political opinion – United National Movement branch coordinator – Fear of Harm – Threatened by Georgian Dream party members – Family went into hiding – Divorced wife on papers – Enable the applicants wife to depart on a different name – 1 year delay in leaving Georgia –Credibility concerns – Inconsistent evidence – Created his claims in order to obtain the visa – No adverse political profile
LEGISLATION
Migration Act 1958, ss 36, 65, 424AA, 499
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant, who claims to be a citizen of Georgia, applied for the visa on [date] December 2013 and the delegate refused to grant the visa on [date] June 2015.
3.The applicant appeared before the Tribunal on 5 October 2017 and 1 March 2018 to give evidence and present arguments.
4.The Tribunal hearing was conducted with the assistance of an interpreter in the Georgian and English languages.
5.The applicant was represented in relation to the review by his registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

6.In his PVA the applicant claims that from 1995 to 2003 he was employed as a police officer. From 2003 – 2013 he was a [self-employed].

7.    In the years from 2003-2012 he visited [Country 1] and [Country 2].
8.    He has been a strong supporter of the UNM since 2001. His involvement with the UNM began in 2003, by going to meetings and then he joined the party in 2004. He started running party meetings and organised bus hire for events, he eventually he became a coordinator of [a certain branch]. He used his [business] as a location to run political campaigns work as branch coordinator.   United National Movement (UNM) was the first party to promote independence and create a positive vision for Georgia's future.
9.    In 2011 he began to receive significant pressure from GD supporters. During the campaign some GD party members came to his [business] and threatened to hurt him if he did not stop what he was doing; they also threatened his family. He fled from his business using a back window.
10.     He took his family to stay with relatives far away after which he only saw them once before he left the country. When he got to his campaign office there were two groups of people outside, one from the government the other from the opposition. The groups argued and began fighting.
11.     The police protected him at that time, although both the police and DG party members threatened that they would destroy his business and his family. He was afraid for his life and the lives of his family.
12.     On 1 October 2012 Georgian Dream (GD) party came to power. After the election his situation worsened. He was subject to blackmail by GD party members who told him that because he ran a business he would have to pay them. He realised that he had to confront those people and when they came next he told them that he had not broken any law, he was promoting the UNM. They told him that the UNM government had gone and its supporters were going to end up in gaol. They told him that unless he stopped his political activities he would be destroyed and taken down. He took that as a threat to his business and his safety. He knew that he could not live in Georgia and he had to live in hiding.
13.     His former police colleagues told him that they could not protect him. They told him to be unseen and unheard or to leave. His only aim was not to be in gaol or to be killed. If gaoled in Georgia as a political prisoner there is a strong risk of physical torture.
14.     It is not safe for supporters of the UNM to live openly in Georgia; they are at risk of physical assault or of being killed. His political opinion remains unchanged and he continues to support the UNM. If he returns to Georgia he is afraid that he will be subjected to serious harm, including beatings. He is aware of other UNM representatives who have been arrested and imprisoned. He suspects they have been tortured.
15.     On [date] October 2013 the applicant commenced his application for [a temporary] visa and on [date] October 2013 he was granted [the] visa valid to [date] December 2013 for a single entry of one month's duration.
16.     In October 2013 he divorced his wife. Two days before leaving Georgia he visited his wife and children. At the time he left Georgia everyone who had been in the UNM had been arrested, including his cousin. On [date] November 2013 he arrived in Australia.
17.     He believes that he could be arrested on his return to Georgia because of his political profile and because he is known to the party in power. Political prisoners are tortured in Georgia. He has heard reports of physical harm and sexual abuse of prisoners. He is afraid that the authorities in Georgia would harm him and not protect him.
18.     The applicant attended a Department interview on [date] August 2014. The applicant’s, [Migration] Agent acting for the applicant, was present at that interview.
19.     In brief the applicant stated that:

He divorced his wife in October 2013 before he left Georgia because his wife would be threatened because of him and it would allow her to earn money to provide for their children. His ex-wife and their children were living in the family home in [Town 1] and had been since before he came to Australia.

He was not a [professional] but he owned a [certain] business located in [Town 1]. He employed 3 people in the business.

He was concerned for the safety of his wife and children and took them out of [Town 1] district to different places, including Rustavi and Tbilisi, for short periods.

A month before the 2012 election campaign about 100 GD members came to his [business] and he was threatened that he would be killed if he did not stop his political activities. He slipped out of the back door and in doing so received blows from two of the GD people.

The following day the police contacted him by telephone and asked him to return to [his business] to be questioned about the incident. He said that he went back as requested.

After the election, GD party members blackmailed him by telling him that because he ran a business he would have to pay them. He confronted them and they told him that unless he stopped his political activities he would be destroyed. He took that as a threat to his business and physical safety; he knew he could not live in Georgia and had to go into hiding.

After the new government came into power following the 2012 election, activists with the former government went into hiding. He went into hiding sometime in December 2012. He moved from town to town staying with friends and relatives.

He had been a supporter of the UNM since about 2001 and became a member in 2004 when the UNM came to power. He was a coordinator in the district, coordinating election activities, making sure there was no fraud going on in the voting process, taking messages, and trying to neutralise people from opposition parties.

He was threatening people that the UNM would imprison them if they disrupted the election. Others were threatening him with imprisonment.

After the election GD party members blackmailed him by telling him that because he ran a business he would have to pay them. He confronted them and they told him that unless he stopped his political activities, he would be destroyed. He took that as a threat to his business and physical safety; he knew he could not live in Georgia and had to go into hiding.

He reported the blackmail to the police when it started but the police told him that they would imprison him if he did not stop his activities. The police mocked him, saying that the UNM had gone, now it is their turn. He did not pay any blackmail money.

At the time he departed Georgia, everyone who was in the UNM had been arrested, including his cousin. UNM supporters cannot live safely in Georgia, they are subject to threats and they are at risk of being assaulted or killed.

He had information from the internet that UNM members were being beaten [throughout] Europe.

After the new government came into power following the 2012 election activists with the former government went into hiding. He went into hiding sometime in December 2012. He moved from town to town staying with friends and relatives.

He thought that he would be found in [Country 1] and secondly that [Country 1 nationals] are Muslims and "we" always have problems with Muslims. Although the governments of Turkey and Georgia are on good terms, the ordinary people are not.

He had visited [Country 1] on a number of occasions; asked how many times, he responded he had gone in and out on trips but he would not go there to seek political protection from [Country 1’s] government.

He paid [amount] to get an Australian visa.

20. On 25 August 2014 in a post hearing submission the applicant's migration agent submitted (via email) the following documents in support of the application:

A number of photographs

A photocopy of an English translation of a Georgian government letter dated [August 2014] attesting that [the applicant] served in [a government ministry] from May 1996 to August 2004.

Photocopies of documents in Georgian.

A photocopy of an identity card.

Photocopies of English translations of documents related to [the applicant]'s 1993 war service.

A photocopy of an English translation of a UNM document dated [October] 2015 naming [the applicant].

A photocopy of an English translation of a police report dated [December] 2012 naming [the applicant] as a party in a property dispute.

A photocopy of a [government Ministry] letter dated [August] 2014 to the legal representative of [the applicant] relating to criminal damage about a [store] owned by [the applicant] in [Town 1] (plus a photocopy of an English translation). The damage resulted from the removal of "agitation material" from the façade of the property.

21. On 27 February 2015 the applicant's migration agent submitted information relating to two developments. The first was that the applicant had advised that his wife's hours of employment had been reduced and that his wife believed the reduction was a form of harassment against her because of her association with the applicant. A letter in Georgian, purportedly from his wife's employer, was attached. Secondly, the applicant had provided a copy of a news article (in Georgian) that he claimed featured his name and that he interpreted as showing that he remains of significant interest to those who know him to be politically active.
22. At the Tribunal hearing [T1] the applicant provided to the Tribunal the following documents:

Original and translated document from Georgian into English by the applicant’s neighbours [group 1] opining that in pre-elections period and post-elections period of September of 2012 many people became the victims of the present authorities and their associates. The applicant, a UNM member was a victim. He and his family were under great pressure before and after the elections. On October [date], 2012 several days before the Parliament Elections, on September [date], the representatives of the GD broke the windows and destroyed his [store], he was threatened with being killed. He escaped through the window and the neighbours helped him as his life was in danger. All the people residing in [a certain street] and [Town 1] population also knew about it. The innocent person abandoned Georgia.

Original and translated document from Georgian into English by another group of neighbours [group 2] opining that from [date] October 2012 in the pre-elections period and post-elections period they were pressed by the representatives of the GD – the present authorities, their representatives and associates. On September [date], 2012 the representatives of the GD broke the windows and destroyed the applicant’s [store]. They were threatening the applicant to kill him and as they knew the resident of the street and the nearby [store] they helped him and he survived. His wife and children were hiding themselves as the representatives of the GD were threatening to kill them also. On September [date], 2012 the representatives of the GD came to the applicant’s home, they were crying, shouting and were threatening that in case they won, the applicant’s family wouldn’t survive. The representatives of the GD came from time to time to threaten him and his family. After the elections of October [date], 2012, maybe since December [date], 2012 his family members do not live at their home, they are afraid to come back home.

Original and translated document from Georgian into English certifying that the applicant’s son is their good friend. Several days before the elections of October [date], 2016 the associates of GD, approximately 10 men beat the son, broke his hand and threatened to kill him, as his father – the applicant was an active member of the National Movement and his mother - was an allied member of the National Movement. They told the son that his father escaped but they wouldn’t leave his mother and him to escape and they would deal shortly with them instead of his father

Original and translated document from Georgian into English by United National Movement [UNM] – Certifying that the applicant was the member of their party. They were aware that if the GD win they had aggressive mood towards them, they were interfering in their homes and threatening them not to go out from their homes and were threatening to imprison them after they come to authorities. The applicant experienced great troubles. He collected definite amount by being engaged in [another business] from [Country 2]. In September of 2012 before the elections and after the elections of October [date], 2012 he and his family were under a great pressure and the members of the GD were trying to kill him. On September [date], 2012 they broke the windows and destroyed the applicant’s [store]. They were threatening to kill him and he escaped through the window and the residents of the street and those nearby the [store] helped him and he survived. His family members were under permanent pressure and therefore his wife and children abandoned their home to hide. The applicant’s wife, in spite of the fact that she was not the member of the Georgian National Movement was always near and she helped in the pre-election period. The applicant and his wife were threatened by members of the GD to be killed.

Original and translated document from Georgian into English being a certification that the applicant’s wife worked from 2000 as [one occupation], from 2009 she worked as [a second occupation] and from 2010 – [a third occupation] also. After the GD win and after the elections of October [date], 2012 the authorities pressed her and in December 2012 she was dismissed from the occupied [posts], and [her hours of work] were decreased. After the elections of October [date], 2016 she was dismissed from the [workplace] in November, as her husband was one of the most active members of the National Movement and the wife was their associate and assistant. That was the real reason for the applicant’s wife and her husband to abandon Georgia as they were afraid of being killed

Original and translation from [Ms A], certifying that the applicant and his wife and children after the elections of October [date], 2012 and the GD winning, and since December [date], 2012 till the present are hiding themselves from time to time at her house.

Original and translation from [Mr A], certifying that the applicant and his wife and children after the elections of October [date], 2012, and the GD winning, and since December [date], 2012 till the present are hiding themselves from time to time at his house and were forced to abandon Georgia, as Georgian Dream was pressing and threatening them.

Letter from [a government Ministry] of Georgia to [the] applicant’s advocate stating that on [date] September 2012, in a regional division of [Town 1] of MIA started investigation at Criminal case [file number] about property damage of the applicant and others, a crime under the Criminal Code Article 187, Part I. The investigation revealed that on [date] September 2012, an unidentified person had torn off agitation materials on the external facade of the [business] owned by the applicant and damaged the windows of the above mentioned [business’] window. It caused damage of his property of 20 GEL. The fact of obstructing political activities was not confirmed and other crimes were not identified due to criminal law. In accordance of that in 2012 year, [date] December, an investigation has been suspended on the mentioned case due to The Criminal Code of Georgia Article 105, Part 1, Subparagraph “a”.

Newspaper Article: Why did Valeri Gelashvili and his surroundings expelled from Georgia the applicant ? …….. [Town 1] inhabitants would say that there was a really decent man, the applicant, a former policeman, he used to work [in a certain area] and was fired, he left the police and began business. First he was carrying [goods] from [Country 2], then he collected money and opened the [store]. In short, the applicant was an ordinary, quiet businessman in the rayon, but his problem was the fact that he was the supporter of “national movement”. That's why his [store] was raided, the windows were broken, and the whole [store] was destroyed. So reckoning against the applicant - he was under pressure every day. If other supports of national movement were in the same bad situation we would think that the whole national movement was under pressure, but “nationals’ who were suspected in different crimes, they have had all privileges, but the applicant was under pressure because of personal reckoning and nobody considered to stop the chase, or who would stop that chase, as [Town 1] inhabitants say, somebody who stood near Valeri Gelashvili, he was reckoning from there - when the applicant was a policeman, somebody was reminding him the time when he was a policeman. By the way, during parliamentary elections, the supporter of national movement, policeman [Mr B], raided one of the election districts and seized the voting box and tried to demolish elections on that district. After that, when the elections were going to finish, it became clear that “Georgian Dream” is going to win the elections, [details deleted], condemned “national" past publicly and turned to the side of “Georgian dream” and Valeri Gelashvili, and that was appraised by Valeri Gelashvili, though he could not dare to promote him, but transferred to [a region] as a chief of police. The mentioned [Mr B] spread the word to [the applicant] he would put him into prison! And the reason was that [the applicant] expressed reproach about the deed of [Mr B], when he [details deleted] publicly and as if he confessed the past in front of Valeri Gelashvili. In short, [the applicant] was under pressure, registered fake penalties and was forced to leave not only the region but the country. In this case Valeri Gelashvili is the main active person, from his surroundings were terrorizing [the applicant]. That was why, when [the applicant] asked help to chief of police appointed by Valeri Gelashvili – [named person], he answered that could not help, just advise to leave the country, because you probably be arrested, but arrest is nothing to compared to the surroundings of Valeri Gelashvili, who were threatening. I do not know how they would perform the threat, but [the applicant] would not begin elucidating, that’s why left the county. This kind of “spirit" was performed by Valeri Gelashvili and his surroundings, thought it would be good that this “spirit” would be performed while fixing problems of the village and not in threats to leave the county.

2 Georgian Divorce certificates, one dated November [date], 2013 referring to the applicant and his wife

Certificates certifying that from June [date], 1993 to August [date], 1993 the applicant participated in the war

United National Movement certificate dated [date].10.2013

23.     The applicant also provided to the Tribunal letter dated [August] 2014 from detectives to his lawyer that on [date] September 2012 a criminal case commenced for property damage to his shop by unidentified persons. On [date].10.2016 his son was beaten, hand broken and threatened his wife. A Newspaper article stating that the applicant used to work at the police and he was fired.
24.     At the commencement of the hearing the Tribunal checked with the applicant the documents he had provided to the Tribunal with him, as some appeared to be duplicated.
25.     The applicant said that he was a policeman until 2003. He lived in [Town 1] all his life. He finished high school in [year] and joined the police force in 1994 and later started his own business, a [trading] business from [Country 2] and later [another] business in 2005. He was not [of that profession] but was required to employ a registered [professional]. He had 3 employees.
26.     When asked about owning and running a [business], he said that he had to have adequate property to open shop and he was a sole proprietor. He obtained [supplies] from 3 main companies that he dealt with.
27.     Asked about the taxation structure he said that he paid 20% tax from his profits. Asked what type of registration he was required to complete to start the business he said that one has to have adequate property. It was a shop where customer comes, with a warehouse behind it. A [staff member was required to be employed. He was the sole owner. Asked about what tax regime was imposed on the import of [supplies] into Georgia he responded that he did not trade from overseas but 3 companies imported the [supplies] and he purchased from those 3 importing companies.
28.     His wife did not work in the business. She was [an occupation]. His business was a profitable business. He stopped working in the business in 2012. He tried to expand the business. He stopped working in the business in 2012 as he was under pressure by the opposition. He was an active member of UNM and had significant pressure from GD. He did not sell the business as there were some issues, his business began to be not profitable as he lost all his customers. He also was unable to pay wages to employees and lost his employees. The business was becoming unprofitable from [date].10.12, when the GD came into power and his business started to go down. The shop could have been forcefully taken away from him so he put it under the name of his brother in 2012. Now it is just a building, it is not rented, it is empty.
29.     He knew already GD was going to win, he was already under pressure and someone was threatening him. He knew he was in danger and so he put the building under name of his brother. Asked when he did this he said it was 2012. The business was open from 7.00am to 10.00pm in summer and winter 9.00am to 6.00pm. He worked in the business all the time.
30.     The applicant joined the UNM in 2004. The party started in 2001. Before it had a different name, United Movement Helps Georgia. When they came to political power they changed the name to United National Movement.
31.     Asked what significant events occurred in 2003, the applicant said on 23 November 2003 the Rose Revolution occurred. Members of their party entered Parliament. Asked if any other significant event occurred in 2003 within the UNM he said that there were demonstrations and there were police cordons and actions during this time and over took police around Parliament House. [Date].11.03. Put that the significant event that occurred in 2003 was that three factions or parties joined to form the party in its current form.
32.     He said that he joined the party in 2004 because previously he was working in the police force and could not be member of any political party. However he was very positive towards the UNM party. He was not involved in the party coming to power in 2003. He became an active member in 2004 immediately when he stopped working in the police and started his [sales] business activity.
33.     Asked what activities he was involved in, he said that he was involved before any kind of elections doing agitations and also actively involved trying to attract people from the opposite party to make them members. He was just a regular member but during pre-election campaigns he was a coordinator. As a local district coordinator he was counting the number of people to predict and count percentage of supporters. They tried to increase the rating of the party and make a higher percentage. Above him was a UNM MP from [Town 1]. The applicant had no national standing in the party nor was he involved in national activities, only in his particular districts. When asked how many coordinators there were in all Georgia, he said that he was unable to tell as there were too many. In his area [Town 1] there were 20-25 coordinators.
34.     The applicant said that he took part in the 2012 elections. His job was to permanently meet people and he knew numbers of people in opposition and against the party and also know what percentage of loyal people there were in his district, so he tried his best to involve as many as possible people to join the party to increase their percentage and during these meetings there were arguments and it is like a position and UNM members made negative treatment toward them.
35.     Asked what the coordinator did, he said that in trying to get people to join the party they were going from home to home and meeting people in their own home. Also in places where there were too many people such as in shopping centres and in bus stations, in railway stations he was trying to do propaganda. From time to time there were meetings with the same people involved in agitation for opposition parties and there were significant clashes with them as well.
36.     Also they were promising people that if they support UNM they would help to obtain jobs. In Georgia there were too many prisoners and they were promising to help to release them. Put that this took up a lot of his time, he said it was 3-4 hours per day depends on what people were involved in his meeting. It was during pre-election campaign and election itself, at other times a few hours per week. But it was much longer time before the election.
37.     Because he was a supporter he did not have any financial benefit and he financially supported UNM by renting buses. The Tribunal put that he had stated he was working long hours 7am – 10pm but now states he was politically active for long hours every day. He responded that he never worked from 7am -10pm, it was staff that worked under legislation and he could not sell [certain products], he just did contracts etc.
38.     Put this suggests his business was run down if he was involved in UNM and left his business to the staff then that was the explanation for his business running down. He said it never left his attention.
39.     Put that his UNM reference provided to the Tribunal makes no mention of his very active involvement as a coordinator. He said whatever his previous migration agent had said he provided those documents to the agent. He explained his claimed to his agent about whatever happened in Georgia and his agent said if he needed additional documents he would provide them.
40.     Asked why he fled Georgia fearing harm and came to Australia, he said that he faced a lot of problems and his life was under threat. If he went to nearby countries his opponents could reach him. During the pre-election campaign of [date].10.2012, on [date].9.2012 someone approached his business building, they were members of Georgian Dream [GD] and strong supporters and forcibly entered his [shop]. They said they would kill or destroy him. Several people hit him, he ran away by the back door. They also threatened to kill his family and too many neighbours were involved. They helped him. This occurred because he was an active member of UNM. They demanded that he stop activity with UNM and they believed he had documents about the party’s activity inside his shop and some materials that maybe he held. This happened on [date] September 2012 and he fled.
41.     He and his family fled to Rustavi, after first going to his friend’s place. He went back because the police called him and gave him a guarantee that nobody would touch him. So they made an appointment with him. His business building was destroyed, his shop was destroyed inside. They smashed windows and destroyed all the [goods]. He went back with the police to the shop on [date] September 2012. He also went to [Town 2] and Kutaisi. He was changing his place as they were threatening him.
42.     A journalist arrived during the police interview. He was explaining what happened. Police were involved against him and tried to stop the mass media interview because they tried not to allow him to tell the truth. He was pushed not to tell the truth by police as these particular members of police were supporters of GD When asked how he knew they were supporters of GD he said it was so obvious because when he tried to give an interview they did not support him and went against him. This particular police officer was promoted and became the Sheriff of the district. The journalist never published anything regarding this incident. Asked if he thought this was very important that the mass media interviewed him but the police stopped him, asked why he did not advise department about this in PVA. He said that he told everything to his agent. This was main reason he changed advisors as she did not do a good job and did not put everything down.
43.     When the election finished he realised it would be bad time so he went into hiding actively from December of 2012. Asked why he earlier stated he went into hiding in September 2012, he said after the incident he took his family members away. After the incident and prior to the election, his activities were that too many people were against him and he was an active member of UNM and tried to actively be involved. When asked exactly what he did, he said that it is like a list of supporters and general public. He had list of people supporting UNM and list of people against, there were a group of coordinators and so he gave the information to a person in charge of coordinators.
44.     Too many people were against him and tried to actively avoid UNM but with documents he helped them. He had list of not just members but the general public who gave voices to his party. He was trying not have an active role after the incident at his shop, so he had list of UNM supporters and those against. When asked what he did with the list he said there were a group of coordinators and it was his responsible district, he gave this information to persons in charge of coordinators. This was all he did.
45.     He went into hiding in December 2012 because they believed that Kitiashvili will win the election and represent them in Parliament. Asked what it had to do with him, he responded that all these people were unprotected including former MP Kitiashvili became unprotected. He became a regular member. It was put that nothing happened to him after September 2012. He then said that on [date] September 2013 [Mr B], a member of the police force, beat him. During election of October 2012 [Mr B] took the boxes from election building. Asked for the relevance of this claim he said that next day when it was clear GD won, [Mr B] [details deleted] and he became a strong supporter of GD. He then said he was not sure it was [Mr B] who beat him on [date] September 2013 as it was night time, when somebody beat him. This beating occurred in Kutaisi. He was there because he was hiding. He did not tell the Dpartment about this incident. When he tried to explain at the department interview, they did not allow him to talk and the interview was only based on materials before interviewing person.
46.     Asked why he waited for a 1 year from 2012 to get a visa to come to Australia in 2013 and why he did not go to [Country 1] or EU, he said he did not go to nearby countries as there was still danger and main reason to go far away.
47.     He said that when [Mr B] [details deleted], he was not a member of UNM, he was a police officer. He heard from somebody [Mr B] took the election boxes and next day when UNM lost he resigned from the police and became a strong supporter of GD for [Town 1]. He raised the issue of what [Mr B] did publicly, he criticised him on [date].10.2012, next day after the election. He did this at the building where UNM was located. There were too many police protecting the building in a circle and there were too many supporters of GD. He did not use a microphone, but publicly in front of a lot of people standing outside the building he said “whatever you did Georgian person will not do it, it is political prostitution. People like you have to be punished”.
48.     When asked if anything else happened to him in Georgia causing him to flee he said before he went into hiding, they were threatening him verbally. Not directly but they were sending him verbal messages. The attacks on him were in September and October, they were verbal threats on him, nothing else physically happened to him.
49.     Asked why he did not remove his family from this harm he said that several people approached his home and threw stones at the house, verbally abusing him and threatening to destroy him. They made enquiries when he was coming back.
50.     He did not have any chance to take his family with him when he fled to Australia. For the safety of his family members he divorced his wife, by papers, but not in reality. There is no social support in Georgia. He works in Australia part time as a [occupation] when he gets a job.
51.     Asked what he fears about returning to Georgia, he said that he is afraid someone will kill or arrest him because they are sending messages they will kill him and his political parties members because he was an active supporter of UNM and he was against GD. He drew the Tribunal’s intention to a number of internet sites.
52.     It was put to the applicant that the independent evidence did not suggest ordinary UNM members, workers or supporters suffered any harm in Georgia. Also UNM won 40% of the votes. It was put that high profile people were charged for various offences and some public servants lost their positions but there was no independent evidence that someone in his situation was threatened or harmed. He responded just 2 days ago members of UNM political party were arrested because they opposed GD regarding some properties being sold. Put UNM dissolved on 12.1.17 and there is not much left of it. He responded he knew. He said it is a party divided by itself. Put why does he believes that GD would be interested in pursuing former members of UNM as it is no longer a political party, European Georgia is run by David Bakradze, Sakashvili is in Ukraine and only 6 members of UNM left in Parliament and UNM is gone as a political force. Asked for the date of a newspaper article he provided to Tribunal, he said that it is [date] January 2015. It was about him. Valerie Gelashvili is leader of GD. He said he was in a stronger position.
53.     It was put that it is easy to create fraudulent documents and newspapers. The newspaper article said that he was fired from his job at [a certain branch of the] police and this contradicted his evidence. Asked what the relevance of the newspaper had with the UNM not being a political force in Georgia, he said he never created any fake documents.
54.     Put he had no profile in UNM, it had great support in 2012, no evidence that UNM supporters cannot live safely in Georgia, or that they are subject to threats or that they are at risk of being harmed. It was put that the authorities did not seek to imprison him before he left Georgia and there was no reasons now they would want to imprison him. He said they will imprison him as he as strong relationship with UNM Kiriashvili and is a strong supporter of this political movement and was collecting information about influential people in opposition and UNM members against GB. [Mr B] knew about this. They physically tried to almost kill him. Even it happened in July 2005 and a person was in intensive care.
55.     It was put that new cases against UNM ex-officials largely ceased in 2015, though litigation against existing defendants continued. In a particularly high-profile case, former Tbilisi Mayor Gigi Ugulava was found guilty on a variety of corruption charges and sentenced to 4½ years in prison in September, after extended periods of pretrial detention that the Georgian Constitutional Court had found was unconstitutional. He said it is not a personal business.
56.     It was put to the applicant that documents can be created. He said that he never created fake documents.
57.     It was put to the applicant that he does not claim to have any national standing in the party or to have been involved in national activities and he does not claim to have a national profile, he was not of interest to authorities and he was not was imprisoned before. He said the government will want to persecute him as he has a strong relationship with Kitiashvili. He was a strong supporter of this person and was very active in the political movement
58.     The applicant stated that GD Gelashvili’s supporters were personally telling him that Gelashvili would harm him, this first occurred when they entered his business premises and when he opposed Gelashvili after the election campaign. Put he did not inform the Department of this claim. He said that he first told his migration advisor but what she put in papers he does not know and at interview they did not listen to him and did not pay attention.
59.     It was put that if the authorities wished to imprison him, detain or otherwise mistreat him that they could have done so before he left the country in 2013. He said [Mr B] knew everything about this activity.
60.     The applicant said that Sergo Kitiashvili gave him a suitcase with documents and he never read them. [Mr B] knew about. It was material of compromise. Asked for the relevance of this information he said it was a compromise against people in political power today and they are still today seeking these documents. He was hiding these documents about GD. He was supposed to hold them but he returned the documents to Kitiashvili on [date] August 2012. Asked why it was relevant to his return to Georgia he said that they suspect he knows all compromises about GD. Put that he did not tell the department about this, he said that he told his former agent, she said that if it will be necessary for additional documents she will let him know.
61.     Put independent information indicates that Georgia has a rule of law and government has introduced changed reduce executive powers over courts and there has been judicial reform and improved transparency in the system. The government is accountable to Parliament and this suggests that he has the protection of the Georgian government. He did not agree. He does not trust them, he went through such stress and terrible situations.
62.     Asked about photos provided to the Department, he said they were photos of his building. He said the photos show police tape around the building. I drew to the applicant’s attention that there was nothing indicating the building was a [business].
63.     Asked what he fears about returning to Georgia, he said that he is afraid someone will kill or arrest him because they are sending messages they will kill him and his political parties members because he was an active supporter of UNM and he was against GD.

64.     A letter from the applicant’s advisor dated 31 October 2017 enclosed:
·    Testimonial;
·    Document headed "Georgia" dated [date] October 2017; and
·    Document dated [October] 2017 regarding translators
·    The statement by the applicant stated that at the T1 hearing the applicant said that he could not give full answers to several questions:
·my [spouse] was under pressure from -“’Georgian-Dream” supporters and the members of party till elections of October 1, 2012 and after the elections. They were threatening her that she would be released from her job and by destruction.
·Several days earlier till Elections of October 1, 2012, on September [date] they raided my [shop], attacked me and they were threatened by kill. My neighbors near the [shop] went away me secretly. My [spouse] and my children [hide] with my relative, because we were afraid to come home.
·After elections of October 1, 2012, in December, my spouse was released from [her roles], the hours of [her work] were reduced for her.
·In July, 2014 members of “’Georgian dream” attacked her, they threatened her, she was thrown by her hair, they told her: your husband saved his life and where will you go? Instead of your husband you will find out the answer, as we destroyed your business, you’ll destroy so, if you will not leave the “’National Movement” and if you will not give us the documents which is kept by your [spouse].
·That’s why, our family was permanently changing the place, they were forced to stay with their relatives in different cities: [Town 2], Kutaisi, Rustavi, Tbilisi.
·On October [date], 2016 till elections and after elections still there were threats from the members of “’Georgian Dream” and its supporters’. In the previous days of the elections they met to my son, [he] was beaten and abused by them, they swearing him and threatened to kill him.
·My spouse was released from [the workplace] in November, 2016 despite she was not the member of “’National Movement”, she always was near the party and helped the party during Pre-election Campaign.
·On October [date], 2016 she was forced to change surname and received her mother’s surname. (On October [date], 2016 she changed the [surname]. On April [date], 2017 she arrived in Australia.

65. A 2^nd letter of the same date from the applicant’s advisor enclosed original documents in Georgian and with English translations:

Statement by applicant;

Testimonial

Five documents relating to the operation of the applicant's business;

66.     The Tribunal held a 2^nd hearing [T2] on [date] March 2018.
67.     It was put to the applicant said he had told the Tribunal that he was a policeman until 2003, he worked until [date].8.2004, but the newspaper article stated that he was dismissed. He responded that he worked in the police force until 2004. He was not dismissed from his job.
68.     It was put to the applicant that he has stated at T1 hearing that he had strong relationship with UNM Kitiashvili, he was a strong supporter of this political movement and was collecting information about influential people in opposition. Also put that Kitiashvili is no longer in Parliament, he resigned during the 2012 election and there is no independent information to suggest that he was involved in politics after his resignation.
69.     The Tribunal explained that Kitiashvili said the reason for his decision was pressure against him by the [Town 1] Majoritairan MP GD candidate Valeri Gelashvili and his supporters. He decided to refuse to run in the repeated elections. When the independent information was put to the applicant that Kitiashvili had resigned and the applicant had said that he went into hiding in December 2012 because they believed that Kitiashvili will win the election and represent them in UNM in Parliament he responded that it was first time when election occurred, he tried to win the election however it was 2^nd election and because of pressure and somebody threatened him this was the reasons why he refused to go 2^nd election it was later in 2012. Asked when, he said he does not remember.
70.     It was also put that since UNM disbanded there is no reason why anyone would be interested in any information, if he had any   He responded that “we tried to put on more people as possible during election time. Our opponents tried to scare us. It was like verbal and physical argument”.
71.     Put UNM now disbanded why would anyone be interested in any information he has or had about UNM members. He said that they believe because when they were in power UNM were unfair and it is reason now they are putting pressure on them, they said within 9 years UNM were destroying them and did not provide a good life. Asked if he is claiming the UNM members are still being persecuted and harmed by GD, he said yes it was and continues now.
72.     It was put to the applicant that at T1 hearing in October 2017 he has stated that members of UNM were arrested because they were opposed to GD regarding some properties being sold. His supporters made an action against unlawful decision of GD about properties and during this event several members were arrested.
73.     It was put to the applicant that in January 2013[1], hundreds of Georgian farmers demonstrated, calling for the preservation of "Georgian land for Georgians". Opposition politicians fretted about grave dangers to the country when Indian farmers began coming to Georgia to invest in agriculture. In July 2017[2] amendments were introduced for a new constitution in Georgia which will make the prohibition of selling agricultural land to foreigners constitutional. I put that these demonstrations had nothing to do with internal political parties. He responded that in this time it was not about selling farmers land they were trying to purchase land for themselves.
[1]
[2]
74.     I put to the applicant that Georgia has an Ombudsman[3], Public Defender’s Office and that had he been treated in the manner claimed, he could have lodged a complaint with them. He said that he did not do it when he first time applied to the police on [date].9.2012. When he went to police and complained, he was attacked. Police officers threatened him and promised him and said “if you talk too much your time is over. They pointed to the prison cell and abused him. Under Georgian legislation if a person suffers significant financial harm, if exceeds 50 Lari any person has to be arrested. He was abused and persecuted and they told him to be quiet.
[3]
75.     Asked who organised the documents from his neighbours and how they came about, he responded that it was a friend of his in Europe.
76.     Put to the applicant that his neighbours’ letter [group 2] stated that on [date] September 2012, the same day as the attack on his shop, GD supporters came to his home and threatened him. This was not a claim that had been made previously by him, either to the Department or to the Tribunal at T1 hearing. He responded that he told his agent and was providing all explanations. Regarding several documents he said to him do not worry and when needed, he will provide that. He provided all claims to his previous migration agent, “she told me whatever I will tell you please being it for me”.
77.     I advised the applicant that he had said during T1 hearing that his advisor had not provided all his claims in his PVA. I put that he was represented by [a community legal centre] and I have great difficulty accepting his claims that the advisor had not provided all his claims in his PVA. I also advised the applicant that I had listened to the interview tape, the interview went for 1 hour and 32 minutes. A Georgian interpreter and the applicant’s advisor were present. I put that he was advised at the beginning of the interview that at the end of the interview the interviewing officer would give him the opportunity to discuss the interview with his advisor. I put that at the conclusion the officer offered the applicant and his advisor the opportunity to consult, this was not accepted. The applicant’s agent said that there would not be verbal submissions but a written submission. The applicant responded that he did not understand the opportunity he had and his advisor provided him incorrect information.
78. I informed the applicant that I would put to him information, pursuant to s.424AA of the Act, that would form reason or part of the reason for affirming the decision under review. I advised the applicant that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing.
79.     I put to the applicant that he claimed at T1 hearing that he had publicly criticised [Mr B] on [date].10.2012 in front of the building where UNM was located on the next day after the election. I put that I have listened to the Department interview tape and he had not advised the Department of this incident in his PVA or at Department interview. I advised the applicant if I relied on the information, I would find that it undermined his credibility and would lead me to conclude that his claims were not genuine. If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion. He responded that this occurred where GD was located. He said that he provided all for his advisor several times and on several occasions. She sent all letters to Department and he could not read what she wrote. Whatever information he was providing she was putting additional questions. He was telling her several times what she did not mention and she was advising do not worry about that.
80. I also put to the applicant pursuant to s424AA that he had claimed in his PVA that during the election campaign GD supporters tried to harm him in his shop and he fled via a window. At the Department interview he said that 100 GD members entered his shop, he slipped out the back door. A letter from his neighbours said that on [date] September 2012 GD broke his windows and he escaped via the windows. I advised the applicant if I relied on this information, I would find that it undermined his credibility and would lead me to conclude that his claims were not genuine. If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.
81.     The applicant responded that when this people attacked his building they broke the windows and beat him physically and abused him and he was asking and begging them to leave the building and also there were people trying to separate them and he went to the back of building, jumped out of the building and escaped. His neighbours helped him and were hiding and everything was destroyed and physically abused him. And when neighbours helped him, they said the attackers were going to kill him.
82.     I asked the applicant to confirm that he was in hiding when he was beaten on [date] September 2013 and I asked how anybody knew where he was when he claimed he was in hiding. He said that they have agents and people provide them with information. It is the same way. He told this verbally to his advisor. It was also put to the applicant that he did not report this to the police. He agreed he did not.
83.     I put to the applicant that he claimed he was beaten on [date] September 2013, just prior to his departure for Australia. He responded that he believes his migration agent was doing her best and she was changing paperwork.
84.     It was put to the applicant that he provided documents that his wife has been in hiding since 2013, but she was dismissed from the [workplace] in November, 2016. Asked how someone can be in hiding when working in a [workplace] in 2012 and during the election campaign he said he and his wife were not in hiding, when UNM lost the election they went into hiding and they did not go out of hiding.
85.     They did divorce papers to protect his wife in November 2013. It was put that they divorced for a migration outcome in order for his wife to be able to travel to Australia with a different name. He said it was her mother’s name. He said that he had no idea at all how she applied, it was a big surprise. When she arrived she explained too many things and was trying to protect him.
86.     The applicant explained that the police gave them a guarantee after the incident in September 2012 when he went into hiding. He said that it was for 1 day. His wife and children came back within 1 week. He next went into hiding from beginning of December. His wife and children were going and coming back to [Town 2] or Kutaisi, his wife went to her relatives. She was trying to avoid the people. Officially she did not hide from police.
87.     The applicant said he was hiding from GD and the police. The police called him and threatened to arrest him the day after the incident in the [business]. Asked if they threatened him anytime again, he said that several days later he went to the police station, the Chief of Police openly told him ‘we will arrest you and have information you are not going to shut up and we will have instruction to arrest you if you continue your political activity’. Put that he did not lodge a complaint with anyone. It was put that he was claiming he was being threatened by the UNM appointed police for supporting the UNM. He said that police who threatened him in September, it was the first time and the next time that new police officer was a different person after the election. This Chief of Police after election took a higher position and it means he was supporting GD. When put that he had not informed the Department he said he told his agent.
88.     He said that when he came out of hiding in December 2012 it was a terrible situation and he could not afford to go out in the street.
89.     I also put to the applicant that his wife [divorced] him so that she was able to obtain a passport in her own name and to enter Australia without being identified as his wife, after he had lodged a PVA. He disagreed.
90.     In a post hearing submission the applicant stated that
·on October [date], the applicant had interview with emigration officer, and remembering several facts affected him badly, he could not give full answer on several questions:
·[Spouse] was under pressure from -"Georgian-Dream" supporters and the members of party till elections of October 1, 2012 and after the elections. They were threatening her that she would be released from her job and by destruction. Several days earlier till Elections of October 1, 2012, on September [date] they raided my [shop], attacked me and they were threatened by kill. My neighbors near the [shop] went away me secretly. My [spouse] and my children [hided] with my relative, because we were afraid to come home.
·After elections of October 1, 2012, in December, my spouse was released from [her jobs] the hours of [her work] were reduced for her.
·In July, 2014, the members of "Georgian dream" attacked her, they were threatened to her, she was thrown by her hair, they told her: your husband saved his life and where will you go? Instead of your husband you will find out the answer, as we destroyed your business, you'll destroy so, if you will not leave the "National Movement" and if you will not give us the documents which is kept by your [spouse].
·That's why, our family was permanently changing the place, they were forced to stay with relatives in different cities: [Town 2], Kutaisi, Rustavi, Tbilisi.
·On October [date], 2016 till elections and after elections still there were threats from members of "Georgian Dream" and its supporters. In the previous days of the elections they met to my son, [he] was beaten and abused by them, they swearing him and threatened to kill him.
·My [spouse] was released from [the workplace] in November, 2016 despite she was not the member of "National Movement", she always was near the party and helped the party during Pre-election Campaign. On October [date], 2016 she was forced to change surname and received her mother's surname. On April [date], 2017 she arrived in Australia.

91. The post hearing submissison also contained a licencing certificate, documents relevant to the applicant’s business and a reference stating:
testimonial to [the applicant] as honest, hard working, intelligent, law defender person, in 1996-2004 years he has worked in [Town 1] Regional Department of Georgian Transport Police Department on the post of the officer, he has repeatedly demonstrated in protecting public order, in establishing's somebody's guilt, and in detention operations of criminals, he has earned the encouragement of leadership, after conducted structural reform in 2004 has canceled Transport Police Department and its subordinated Regional Department of [Town 1]. [The applicant] did not continue working in authorities of [government agency] and released from service, but he remained as the friend of law defender, he always is ready to serve in rows of people and order defenders, is good family man, he has a spouse and two children:

REASONS AND FINDINGS
92. On the basis of his Georgian passport I accept that the applicant is a national of Georgia and is not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Georgia. Therefore, I find that the applicant is not excluded from Australia's protection by s. 36(3) of the Act. I also find that Georgia is the applicant's “receiving country” for the purposes of s. 36(2)(aa).
93.     I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of RRT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
94.     Georgia is a semi-presidential representative democratic republic, with the President as the head of state and the Prime Minister as the head of government. The executive branch of power is made up of the President and the cabinet of Georgia. The cabinet is composed of ministers who are led by the Prime Minister and appointed by the President. Notably, the Ministers of Defence and Interior are not members of the cabinet and are subordinated directly to the President of Georgia. Giorgi Margvelashvili is the current President of Georgia after winning 62.12% of the vote in the 2013 election[4].
[4]
95.     The UNM ruled Georgia for nine years from 2003-2012, with Saakashvili being President of the country, before the party lost parliamentary elections to the Georgian Dream (GD) coalition in 2012. The election results saw then-newly created GD coalition receive slightly less than 55 percent of votes, while the UNM had slightly more than 40 percent.

96.     According to Freedom House[5] in 2003, UNM was in the vanguard of peaceful protests that forced out Georgia’s president Eduard Shevardnadze, and its leader Mikheil Saakashvili replaced him as President in early 2004. Under Saakashvili’s leadership, the party governed until 2012, during which time it rapidly strengthened its state institutions, forced organized crime into hiding, and virtually exterminated petty corruption. However, in pursuing its reforms, UNM rule often acted in contradiction to the rule of law, and power became concentrated in the hands of Saakashvili and a small circle of his closest advisers. UNM excesses fed popular dissatisfaction, which led to a surprise victory by the opposition GD coalition in the 2012 parliamentary elections.
[5]
97.     Georgian billionaire Ivanishvili, the founder of the Georgian Dream (GD) party that led the coalition, assumed the office of the premiership, and went into an acrimonious cohabitation with Saakashvili as president. Following the end of Saakashvili’s term and GD-backed Giorgi Margvelashvili’s presidential victory in 2013, Ivanishvili stepped down as Prime Minister. Ivanishvili’s long time business associate, Irakli Gharibashvili, assumed the post. Despite presiding over several key reforms, Gharibashvili’s acerbic style and combative stance towards the UNM made him unpopular, and he resigned at the end of 2015 ahead of the 2016 parliamentary elections. Current Prime Minister Giorgi Kvirikashvili, also a former Ivanishvili business associate, took up the premiership in a move that lowered the political temperature. Despite Ivanishvili’s departure from government office, he remains active in Georgia’s political life, which has prompted accusations that his wealth and influence over GD make him an unaccountable, informal power. Saakashvili, too, retained significant power over the UNM until the aftermath of the 2016 parliamentary elections, even after he left the country under threat of prosecution and effectively gave up his Georgian citizenship to join the Ukrainian government.
98.     Originally a coalition of six parties, GD was founded by Ivanishvili, who made his fortune in Russia. The party came to power in 2012, ending the nine-year rule of Saakashvili's UNM. It was the first peaceful transfer of power since the 1991 Soviet collapse and followed public protests over a scandal involving the mistreatment of prison inmates and accusations that Saakashvili was behaving in an authoritarian manner. Under GD, dozens of ex-officials, including a former prime minister, have been arrested on charges such as abuse of power, and some Western countries have accused the government of selectively applying justice. Saakashvili was forced out of the country after prosecutors issued an arrest warrant for abuse of power and now works as a regional governor in Ukraine[6].
[6]
99.     According to US State Georgia 2013 Human Rights Report [7] the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) concluded the October 27 presidential election “was efficiently administered, transparent and took place in an amicable and constructive environment. Fundamental freedoms of expression, movement, and assembly were respected and candidates were able to campaign without restriction. The campaign environment was without major irregularities.” While the election results reflected the will of the people, observers raised several concerns, including allegations of political pressure at the local level, inconsistent application of the election code, and limited oversight of campaign finance violations. The most important human rights problems reported during the year were the resignation and dismissal of government employees from local government institutions allegedly for their association with the former ruling party, UNM, and the government’s insufficient response.
[7]
100. I note that after the 2012 parliamentary elections, there were reports of harassment against UNM members "at the local level"[8]. Sources reported that there have been acts of violence against UNM members. According to the Human Rights Centre representative, "[t]hough UNM members sometimes experience violence because of their political affiliation, these [incidents] are not widespread".
[8]
101. On 12 January 2017 UNM split into three factions in parliament after a long internal feud over the role of its former leader Saakashvili[9]. The UNM split[10] came ahead of the party’s contested congress, scheduled for January 20 and a week after the release of Gigi Ugulava, ex-mayor of Tbilisi and one of the leaders of the UNM. “One person is responsible for dismantling the party – the person, who established the party,” Gigi Ugulava stated, referring to Georgia’s former president and the founder of UNM, Mikheil Saakashvili, who, in Ugulava’s words “no longer radiates leadership.”   Earlier, in May 2015, the party’s executive secretary MP Zurab Japaridze and three other lawmakers quit the party and set up a New Political Center Girchi; a year later, MP Giorgi Vashadze also quit the party and set up the New Georgia party. Both parties are now outside of the parliament. Intra-party crisis in UNM emerged in the aftermath of October 8 Parliamentary Elections, with Georgia’s former President and the founder of UNM, Saakashvili, who at that time was also the Governor of Odessa region in Ukraine, questioning the overall legitimacy of elections and calling for boycotting the results and with most political council members and future MPs under the leadership of Davit Bakradze and Giga Bokeria preferring to enter the Parliament and the Majoritarian runoffs.
[9]
[10]
102. The applicant claims that he suffered harm in Georgia because of his political opinion as an active member of the UNM, a co-ordinator in [Town 1]. He claims that he and his business were harmed and he will suffer harm on his return to Georgia for his political opinion.
103. I accept that the applicant lived in [Town 1] Gerogia and that he served in the Georgian military in the 1993/4 war and in the police. I give him the benefit of the doubt and accept that he owned a [certain] business but he was not a registered [professional]. I accept that he transferred the business to his brother and I accept that his business was shut down.
104. I do not accept that the applicant is a witness of truth. The applicant’s evidence is inconsistent and his claims of harm are not supported by independent evidence.
105. The applicant has omitted a number of claims he made to the Tribunal from his PVA and/or at the Department interview. His explanation for these omissions were that he informed his then migration agent but she omitted to include those claims in his PVA and said she would let him know when she needed further documents. Whilst I accept that the applicant may not read English, I do not accept that a registered migration agent would intentionally omit claims relevant to an application for refugee status, particularly because in this instance the agent was employed by [a community legal centre], an organisation that caters to assisting applicants make their refugee claims. Further the applicant attended a Department interview and was assisted by the services of a Georgian interpreter. I have listened to the Department tape and I am satisfied that the Department officer properly advised the applicant at the commencement of the interview that when he had finished questioning the applicant he would give him the opportunity to consult with his migration advisor, who was present in the interview room, prior to concluding the interview. The applicant and his advisor did not avail themselves of that opportunity. I reject the applicant’s explanation for the omission of some of his claims as being the fault of his advisor. I am of the view it is a late invention made to overcome inconsistencies in his evidence.
106. Firstly, the applicant initially told the Tribunal that he worked long hours in his [business], 7am – 10pm in summer and in winter 9.00am to 6.00pm and he worked in his business all the time. When discussing his political involvement said that he was politically active for long hours every day. He spent 3-4 hours per day depending on what people were involved in his meetings during the pre-election campaign and the election itself. At other times it was a few hours per week. When this inconsistency was put to him, he said that he did not say that, it was staff that worked under legislation and he could not sell [certain products], he just did contracts etc. As the applicant initially told the Tribunal the hours that he worked, both summer and winter and that he worked in the business all the time, I reject his claim that he was politically active for long hours every day or that the staff were undertaking the workload. He has not explained the inconsistency in his evidence.
107. Secondly, the applicant claimed in his PVA that during the election campaign GD supporters tried to harm him in his shop and he fled via a window. At the Department interview he said that 100 GD members entered his shop, he slipped out the back door. A letter from his neighbours said that on [date] September 2012 GD broke his windows and he escaped via the windows. When put to the applicant by s.424AA, that his evidence was inconsistent he said that when the people attacked his building they broke the windows and beat him physically. They abused him and he was asking and begging them to leave the building. Also there were people trying to separate them and he went to the back of building, jumped out of the building and escaped. I reject his explanation. The applicant has not explained the inconsistency in his evidence.
108. Thirdly, neighbours [group 2] also provided a reference to the Tribunal, stating that on [date] September 2012, ie the same day of the attack on his shop, GD supporters came to his home and threatened him. This was not a claim that had been made previously by the applicant to the Department or to the Tribunal at T1 hearing. His explanation was that he told his migration agent who did not make the claim. As the applicant did not make the claim at T1 hearing and I have rejected his claims that his migration agent did not properly advise him or provide relevant details in his PVA I am satisfied that the applicant has not satisfactorily explained this inconsistency.
109. Fourthly, the applicant claimed at T1 hearing that after his shop was attacked the next day he met with the police. A journalist arrived during the police interview with him. As the police were against him they tried to stop the mass media interview because they tried not to allow him to tell the truth. He was pushed not to tell the truth by police as these particular members of police were supporters of GD. When asked why he had not advised the department about this incident in his PVA, he said that he told everything to his agent who did not put everything down in his PVA. I reject his explanation that it was his advisor’s fault that this claim was not made. As stated above, I do not accept that a registered migration agent would intentionally mislead the Department by omitting relevant information. I am of the view this claim is a late invention made in order to obtain the visa sought.
110. The applicant told the Tribunal at T2 hearing that he was hiding from GD and the police. On the day after the incident in the [business] he said that the police called him and threatened to arrest him. Asked if they threatened him anytime again he said that several days later he went to the police station, the Chief of Police openly told him ‘we will arrest you and have information you are not going to shut up and we will have instruction to arrest you if you continue your political activity’. When put that he had not informed the Department about this claim he said he told his agent but the agent omitted the claim. As stated above, I reject his explanation the omission was his agent’s fault. I am not satisfied that the applicant hid from GD and the police or that on the day after the incident in the [business] the police called him and threatened to arrest him or that several days later he went to the police station, the Chief of Police openly told him ‘we will arrest you and have information you are not going to shut up and we will have instruction to arrest you if you continue your political activity’.
111. Furthermore, when the implausibility of police, during a UNM government, were attempting to harm a UNM supporter, was put to the applicant he said that after the elections the police officer obtained a higher position so that means the police officer was supporting GD. I reject his explanation. I have found no independent evidence to suggest that police threatened, attacked or harmed UNM supporters prior to the 2012 elections. I am of the view that were it the situation it would be known to independent sources.
112. Fifthly, the applicant did not advise the Department or at interview that a policeman, [Mr B], who during the October 2012 election removed ballot boxes from the election building [details deleted] and became a strong supporter of GD. The applicant claimed at T1 hearing that he had publicly criticised [Mr B] on [date].10.2012 in front of the building where UNM was located on the next day after the election. When put by s.424AA he responded that this occurred where GD was located, not UNM building. He said that he provided all for his advisor several times and on several occasions. She sent all letters to Department and he could not read what she wrote. Whatever information he was providing she was putting additional questions. He was telling her several times what she did not mention and she was advising do not worry about that. I reject his explanation, as stated above, I do not accept that the applicant’s advisor is responsible for any errors or ommissions in his claims.
113. Sixthly, the applicant said, at T1 hearing, that on [date] September 2013 [Mr B] beat him. He then recanted saying that he was not sure it was [Mr B] who beat him on [date] September 2013 as it was night time, when somebody he not sure who, beat him in Kutaisi when he was in hiding. He did not tell the department about this incident. I put to the applicant that he claimed he was beaten on [date] September 2013 whilst in hiding, just prior to his departure for Australia. He responded that he believes his migration agent was doing her best and she was changing paperwork. I am of the view that his explanation for the ommission of this claim is to overcome the obvious gap of nearly one year prior to applying for a visa to come to Australia.
114. Asked why he waited for a 1 year from 2012 to get a visa to come to Australia in 2013 and why he did not go to [Country 1] or EU, he said he did not go to nearby countries as there was still danger and main reason was to go far away. I do not accept this explanation, his failure to leave Georgia for nearby countries and remain in Georgia for nearly a year until October 2013 indicates a lack of a subjective fear of harm.
115. Seventhly, one of the reasons the applicant claims that he went into hiding in December 2012 was because he believed that Kitiashvili will win the election and represent them in parliament. The independent evidence[11] before me indicates that former MP Kitiashvili served one term of Parliament, 2008 to 21 October 2012. Kitiashvili withdrew his candidacy[12] on 13 October 2012. Kitiashvili said the reason for his decision was pressure against him by the [Town 1] Majoritairan MP GD candidate Valeri Gelashvili and his supporters.
“Open aggression continues, against the members of my headquarter and the district election commission members. I think my participation in [Town 1] in such terms is impossible. I decided to refuse to run in the repeated elections. I hope the violence and blackmail will not go unchecked in future and there will be reaction”, Kitiashvili said.
[11]
[12]

116. When the independent information was put to the applicant that Kitiashvili had resigned and the applicant had said that he went into hiding in December 2012 because they believed that Kitiashvili will win the election and represent them in parliament he responded that it was first time when the election occurred, he tried to win the election however it was 2^nd election and because of pressure and somebody threatened him this was the reasons why he refused to go 2^nd election it was later in 2012. I reject his explanation The applicant has provided no information to explain the inconsistency.
117. Eightly, the applicant provided a reference from the UNM. That document states that he was a member. When put that his UNM reference provided to the Tribunal makes no mention of his very active involvement as a local coordinator, he said whatever his previous migration agent said to him he provided those documents to his migration agent. He also explained to the migration agent what happened in Georgia and his migration agent said if he needed additional he would provide. I do not accept that what is written in a reference by the UNM would have been provided by a migration agent. Further the applicant provided the document to the Tribunal/Department. I am of the view that had the applicant been a UNM coordinator in [Town 1] some mention would have been made in this reference. I reject his claim as stated above that the omission of this claim was the fault of his agent.
118. I also put to the applicant that he stated in his PVA that he was employed as policeman from 1995-2003. But he provided a letter to the Tribunal that stated that he worked for the Georgian government until August 2004. Further the newspaper article from an unnamed newspaper he provided to the Tribunal stated that he was fired and he did not make this claim to the Department or the Tribunal. When put to him he responded that he was not fired. A testimonial provided post T2 hearing by other police does not suggest that the applicant was fired. As the information provided in this newspaper report is wrong in relation to how he left his work and as document fraud in Georgia is prevalent, I place no weight on this undated unnamed newspaper.
119. Ninthly, the applicant claims in his PVA that he was a strong supporter of the UNM from 2003 and he joined the party in 2004 and became an active member. He also stated that the UNM was not a political party until 2008. When asked what significant event occurred in the UNM in 2003 he responded that the Rose Revolution occurred on 23 November 2003 and members of UNM entered Parliament. The significant event that occurred in 2003 was that Saakashvili and other Georgian opposition leaders formed a "United People's Alliance" in November 2003 to bring together the United National Movement, the United Democrats, the Union of National Solidarity and the youth movement "Kmara" in a loose alliance against the government of President Eduard Shevardnadze to form the UNM party in its pre January 2017 form. I am of the view that a person who claims to be an active local supporter, member and coordinator of the party would have been aware of which factions formed the party in 2003.
120. Tenthly, the applicant told T1 that Gelashvili’s supporters were personally telling him that Gelashvili would harm him. This first occurred when they entered his business premises and when he opposed Gelashvili after the election campaign. When put to him that he did not inform the Department of this claim, he said that he first told his advisor but what she put in papers he does not know and at interview they did not listen to him and did not pay attention. I reject his claim as I do not accept, as discussed above, that the applicant’s advisor is responsible for all his omissions. I do not accept that the applicant opposed Gelashvili after the election campaign. I am satisfied it is an invention made to overcome inconsistent evidence.

121. Eleventhly, the applicant claimed, at T1 hearing, that Sergio Kitiashvili gave him a suitcase with documents, he never read them but [Mr B] knew about them. It was material of compromise. Asked for the relevance of this information he said it was a compromise against people in political power today and they are still today seeking these documents. He was hiding these documents about GD He was supposed to hold them and then he returned the documents to Kitiashvili on [date].8.12. Asked why this claim was relevant to his return to Georgia he said that they suspect he knows all compromise about GD. When put that he did not tell the department about this, he said that he told his agent. All this information he told his former agent what she put and she said if it will be necessary for additional documents she will let him know. I do not accept his explanation for the omission of his association with Kitiashvili or [Mr B] from claims made in his PVA or even at Department interview. I am of the view it is a late invention made to obtain the visa sought.
122. As for his claim Sergo Kitiashvili gave him a suitcase with documents and he never read them or that [Mr B] knew about it I do not accept his claim. The applicant states that it was material of compromise against people in political power today and they are still seeking these documents today but he returned the documents to Kitiashvili on 28 August 2012. Asked why it was relevant to his return to Georgia he said that they suspect he knows all compromises about GD. Put that he did not tell the department about this, he said that he told his former agent, she said that if it will be necessary for additional documents she will let him know. I do not accept, as stated above, that the applicant’s migration agent did not make these claims in his PVA, I am satisfied it is a late invention made to overcome his inconsistent evidence.
123. On the evidence before me I am satisfied the applicant is not a witness of truth who has created his claims in order to obtain the visa sought. I do not accept that the applicant was a member or follower of the UNM or that he had an adverse political profile.
124. As for his claims that the loss of his business was because he had an adverse political profile in Georgia I reject those claims in their entirety. Further, the applicant provided a letter to the Tribunal to his lawyer from the police that stated;
The investigation revealed that in 2012, [date] September an unidentified person had torn off agitation materials on the external facade of the [business] owned by the applicant and damaged the windows of the above mentioned [business’] window, it cause damage of his property at the amount of 20 GEL. The fact of obstructing political activities was not confirmed and other crimes were not identified due to criminal law, in accordance of that in 2012 year, [date] December, an investigation has been suspended

125. I have considered a number of documents the applicant has provided to the Tribunal. He has denied that those documents are fraudulent. The independent evidence[13] before me indicates that in Georgia, fraudulent documents of varying quality are readily available for purchase. The government is working to arrest and prosecute document vendors; however, the penalties for these types of crimes are minimal. Therefore, fraudulent bank documents, employment records, and fake seals/stamps are common.
[13]
126. The applicant has provided documents purportedly from his neighbours. I place little weight on these documents as the neighbours [group 2] letter is inconsistent with the applicant’s evidence and I am of the view that the documents were created by his friend to assist his application.
127. Further, whilst I accept that the applicant and his wife are divorced and she has taken her mother’s name, as the applicant is not a witness of truth I do not accept this was motivated by their fears to protect his wife, rather I am of the view that they were divorced in order for the applicant’s being able to enter Australia without knowledge by the Department that she was related to the applicant who had made a protection visa application.
128. The document referred to as Newspaper Article: Why did Valeri Gelashvili and his surroundings expelled from Georgia the applicant ? does not have the name of the newspaper in which it was printed nor is there a date on the face of the document. Further it is inconsistent with the applicant’s own evidence regarding his dismissal from employment. I place no weight on it.
129. In relation to Letter from [a government Ministry] to [the] applicant’s advocate stating that on [date] September 2012, in a regional division of [Town 1] of MIA started investigation at Criminal case [file number] about property damage of the applicant and others, a crime under the Criminal Code Article 187, Part I as I do not accept that the applicant is a witness of truth and as I am satisfied that it is easy to create fraudulent documents in Georgia I place no weight on this document.
130. I am not satisfied that the veracity of the information can be readily ascertained by contacting the court or the police due to my concerns about the applicant’s credibility, the potential delays in waiting for a response and my obligations not to disclose an applicant’s identity applying for a PVA.
131. As for letters from [Mr A] and his wife, certifying that the applicant and his wife and children after the elections of October 1, 2012, and the GD winning, and since December [date], 2012 till the present are hiding themselves from time to time at his house and were forced to abandon Georgia as I have found the applicant is not a witness of truth I place little weight on these documents.
132. I accept that the applicant’s wife worked [in several roles]. As I do not accept that the applicant is a witness of truth I place little weight on the documents attesting to the applicant’s wife being dismissed [from her jobs] that [her work hours] were decreased or that she was dismissed in November, as her husband was one of the most active members of the National Movement and the wife was their associate and assistant.
·has been a strong supporter of the UNM since 2001 or that his involvement with the UNM began in 2003, by going to meetings and then he joined the party in 2004. I do not accept that he started running party meetings and organised bus hire for events, he eventually he became a coordinator of [a certain branch].

·used his [business] as a location to run political campaigns work as branch coordinator or meetings or that he was involved in any political agitation, demonstrations or clashes.

·in 2011 he began to receive significant pressure from GD supporters, or that on [date] September GD party members came to his [business] and threatened to hurt him if he did not stop what he was doing; they also threatened his family. He fled from his business.

·On September [date], 2012 the representatives of the GD came to the applicant’s home and threatened him and his family.
·his life was under threat. a journalist arrived during the police interview. Police were involved against him and tried to stop the mass media interview

·He and his family were under great pressure before and after the elections and until he departed for Australia or that he or his family were in hiding for any reason whatsoever.

·The police protected him at the campaign office during an altercation, or that both the police and GD party members threatened that they would destroy his business and his family.

·After the election he was subject to blackmail by GD party members or that when he reported the blackmail to the police they told him they would imprison him if he did not stop his activities.
·His former police colleagues told him that they could not protect him. They told him to be unseen and unheard or to leave.
·everyone who had been in the UNM had been arrested, including his cousin.
·in December 2012 his wife was dismissed from [her jobs], and [her hours] were decreased and in November 2016 she was dismissed because of her and/or her husband’s political involvement in the UNM or the National Movement
·Several days before the elections of October [date], 2016 the associates of GD, approximately 10 men beat and broke his son’s hand and threatened to kill him, as his father – the applicant was an active member of the National Movement and his mother - was the allied member of the National Movement.
·he had a list of UNM supporters and those against.
·[Mr B], a member of the police force, beat him or that he was beaten on 21 September 2013 in Kutaisi.
·he criticised [Mr B] on [date].10.2012, publicly next day after the election.
·GD threatening him verbally, sending him verbal messages in September and October, Gelashvili’s supporters were personally telling him that Gelashvili would harm him,
·he has strong relationship with Kitiashvili who gave him a suitcase with documents and he never read them.

133. I have considered all of the applicant’s evidence singularly and cumulatively. I am not satisfied that the applicant had or was perceived to have an adverse political profile in Georgia, prior to departing for Australia. I am satisfied the applicant left Georgia as the holder of a business visa to Australia and he did not flee Georgia fearing harm for a Convention related reason, ie for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
134. I am required to assess whether there is a real risk or a real chance that the applicant will suffer serious harm or significant harm, were the applicant to return to Georgia now or within a reasonably foreseeable future.
135. As I do not accept the applicant was a member, supporter or coordinator of the UNM I do not accept that he will suffer any harm in Georgia on his return. Even were I to accept that he was a supporter of the UNM, and I do not, the party dissolved on 12 January 2017, Davit Bakradze, former Mayor of Tbilisi, Gigi Ugulava and their supporters left the party and founded a new political party European Georgia after 4 month party conflict. Following its split[14], UNM will be represented by only six members in parliament, while the newly formed European Georgia faction will have 21 sitting legislators. Gigi Ugulava is considered the head of the new opposition party. Saakashvili will continue to direct UNM’s activities from Ukraine, where he will simultaneously lead his Ukrainian opposition party,
[14] According to the OSAC Crime and Safety Report 2016
136. Freedom House, 2014 report Georgia, states that Georgian Dream initiated a package of legislative changes after 2012 intended to break down the links between the executive and judicial branches reform the educational institution of judges and improve transparency in the system. Judges are now appointed and dismissed by a 15 member council. In June 2013, the prosecutor’s office gained full independence from the Justice Ministry meaning that the Justice Minister can no longer detain and prosecute government officials. It is the responsibility of the Chief prosecutor, a separate non-political office. Georgians are able to lodge complaints with the Ombudsman or the Public Defenders Office in the event that there are police excesses.
137. According to Freedom House, 2014 Georgia, in 2013 the Georgian government introduced changes to the legislation to reduce executive influence on the courts. The years saw an increase in the number of cases won against the State, indicating a growing separation between the judiciary and the prosecutor’s office. Aggressive enforcement of anticorruption policies has effectively eliminated low-level graft, most notably in the civil service.
138. According to OSCE report 12 March 2014 it is noted that the legal and institutional framework regulating the Georgian judiciary and criminal justice system is generally comprehensive and provides an increasingly sound basis to conduct trials in accordance with the rule of law principles and international fair trial standards. Georgian law provides the right to a public hearing, the right to be presumed innocent until proven guilty, the defendants privilege against self-incrimination, at all stages of the process defendants receive and understand information regarding their rights, there is a right to trial within a reasonable time, there is a right to adequate facilities to prepare one’s case, the right to be heard, the right to examine witnesses against them and to call witnesses. There is a right to Council and a right to public pronouncement of judgement.
139. The constitution provides for an executive branch that reports to the Prime Minister, a unicameral parliament, and a separate judiciary. The government is accountable to Parliament. The President is the head of state and Commander in Chief. The Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) termed the October parliamentary elections competitive and administered in a manner that respected the rights of candidates and voters, but it stated that the open campaign atmosphere was affected by allegations of unlawful campaigning and incidents of violence
140. The applicant is an ethic Georgian. He has experience in running his own business and runs his own painting business in Australia. I am not satisfied that there is a real chance that the applicant will suffer Convention related harm within a reasonably foreseeable future in Georgia or there is a real risk that in the reasonably foreseeable future the applicant would be subjected to violence or significant physical harassment or ill-treatment, or have his life or liberty threatened, or be denied access to basic services or the capacity to earn a livelihood or suffer economic hardship that would threaten his capacity to subsist, in Georgia. I am of the view that, were it the situation, it would be known to DFAT and other independent sources.
141. Having considered the applicant’s circumstances, I do not accept there is a real chance that the applicant will suffer significant harm or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Georgia, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. I am not satisfied that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
142. Having considered these circumstances, singularly and cumulatively, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Georgia, there would be a real risk that he would suffer harm which would amount to significant harm.
143. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
DECISION
144. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

ANNEXURE A
145. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
146. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
147. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

148. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
149. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2018] AATA 1218

16 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction