1717234 (Refugee)
[2023] AATA 2409
•16 May 2023
1717234 (Refugee) [2023] AATA 2409 (16 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Alison Valerie Saunders
CASE NUMBER: 1717234
COUNTRY OF REFERENCE: Georgia
MEMBER:Senior Member G.A.F. Connolly
DATE:16 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 16 May 2023 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Georgia – imputed political opinion – opposition to the police – murder of family member – police corruption – fear of detention – fear of killing – physical assault – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam (1992) 38 FCR 191
Nominal Defendant v Clements (1960) 104 CLR 476 at 495
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made on 19 July 2017 by a delegate of the Minister for Immigration and Border Protection (Minister’s Delegate) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Georgia and is [age] years of age.
On 17 June 2013, the applicant was granted a Visitor (subclass 600) visa.[1]
[1] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 3.
[In] July 2013, the applicant arrived in Australia.[2]
[2] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 3.
On 09 August 2013, the applicant lodged an application for a protection visa.[3] In that application, the applicant stated, to summarise his claim, that he was claiming protection in Australia because he believed he was at risk of being killed in Georgia as a result of the alleged murder of his [Relative A] by Georgian state authorities – a murder that, in the applicant’s view, was being concealed by corrupt Georgian police.[4]
[3] Applicant’s Form 866C, 09 August 2013.
[4] Applicant’s Form 866C, 09 August 2013 at questions 42 to 49.
On 09 August 2013, a bridging visa A (subclass 010) was granted to the applicant.[5]
[5] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 4.
What happened in the period between 2013 and 2017 to delay the progress of the applicant’s status is unclear, on the materials before the Tribunal. In any case, none of it would be relevant to the particular questions before the Tribunal on this application.
On 19 July 2017, the applicant’s application for a protection visa was rejected by the Minister’s Delegate.[6]
[6] Decision Record, [file number], of 19 July 2017.
The applicant appealed to this Tribunal on 07 August 2017.
On 29 November 2022, the appeared before this Tribunal to give evidence and present arguments. The applicant’s already complex case was in a jumbled state and required refinement to be responsive to the actual issues before the Tribunal. There had been and were also complications to do with obtaining a Georgian interpreter. The hearing was adjourned to a future date with a further direction given by me, whereby the applicant could file further evidence and written submissions by 27 January 2023, an extended period noting the upcoming Christmas and summer holidays. It was essential that the applicant make his case with clarity and succinctness. It was also essential that the applicant be given the chance to do so, as it seemed that he was doing his best but had not grasped, as yet, what the essentials of his case were, given his claim for protection.
On 01 February 2023, the applicant’s former wife, [Ms A], swore a Statutory Declaration in support of the applicant’s claim.[7] This has been read and considered by the Tribunal.
[7] Statutory Declaration of [Ms A] dated 01 February 2023.
On 09 February 2023, the applicant swore a further Statutory Declaration in support of his claims.[8] In that document, the applicant set out his claims in this way:[9]
5. I fear being persecuted or suffering significant harm in Georgia because of my political opinion, actual or imputed, on the basis of:
a. My knowledge of incriminating evidence in relation to the death of my [Relative A] [named]; and
b. My knowledge of the corrupt involvement of Georgian officials in trying to coerce [Relative A] to sell/transfer land to them and of their involvement in [Relative A’s] death; and
c. My refusal to give false evidence in relation to the circumstances of my [Relative A’s] death, despite the threats of the police who were trying to coerce me to provide this evidence.
6. The harm that I fear in Georgia includes being killed by corrupt officials or people acting for them, being arrested on false drug charges and imprisoned, and in prison being mistreated, assaulted, suffering cruel or degrading mistreatment or punishment and/or being killed.
7. There is nowhere in Georgia that I could safely relocate to, due to the small size of the country and the wide reach of the authorities. Further, I have not lived in Georgia for almost ten years and I have no means to support myself or re-establish my life in Georgia, particularly as my family relationships have deteriorated over the past ten years so I would not have much family support available.
8. I cannot obtain protection from the authorities in Georgia, because I fear being harmed by the authorities including but not limited to the police, who have directly threatened me.
[8] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 4.
[9] Applicant’s Statutory Declaration of 09 February 2023 at paragraphs 5 to 8.
On 16 February 2023, the hearing resumed before the Tribunal. At the conclusion of the hearing, further leave was given to the applicant’s representative, Ms Alison Saunders, to file additional materials in support of the applicant’s claim by 10 March 2023. Ms Saunders’ filed submissions were of considerable assistance in the determination of this matter.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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.
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 because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Problems In This Case
The applicant’s claim is best summarised in the way that follows, noting that this case is a relatively straightforward one that has been (massively) overcomplicated at, seemingly, every step of this process, including by the Department. There have also been complications owing to the lack of Georgian interpreters, despite the Tribunal’s efforts to find one for this case. This case and its many difficulties have proved why protection cases should be impervious to any metric of what has become known as “case management.”
To be fair, though, the applicant has, perhaps, not helped himself, by often making what is a simple case into a more drawn-out affair than the facts he swears to should require. This was, on reflection, much less his fault, I think, than, perhaps, an effect of his growing up in a Soviet/post-Soviet culture, with its own idiosyncrasies relating to having to satisfy bureaucracies and play their ‘games of forms’.[10]
[10] This is my own phrase.
It is something of an enduring mystery, though, why so many applicants and their representatives in this Tribunal think that they are assisting their case by making almost everything about the case only much more difficult to understand for a third party, such as the member hearing and determining the case. Cases in this executive tribunal, as is the case in any court, will succeed or they will fail in large part based on their chronology and narration of the facts, and their explanations of where these facts lead in terms of the operation of the law. Nothing in this case – or any other case – is more complex than that.
In saying the above, I stress that the applicant’s representative, Ms Saunders, did helpfully bring some needed order to this case.
As a general proposition – that should be chiselled in stone above the portals of this very Tribunal - unexplained complexity does not cover obvious gaps in a case nor will it shore up weak cases. Instead, complexity amid gaps will only cause more doubts to arise and more distrust of an applicant’s motives. Every case requires, at a minimum, a chronological laying out by an applicant of the facts that are the basis of the applicant’s claim. In this matter, it took the Tribunal two hearings for the evidence and submissions to reach a satisfactory state. The applicant actually had a strong case for his appeal against the Delegate’s decision – he just seemed to get in the way of it, seemingly, repeatedly.
It goes without saying that it is not this Tribunal’s role to make an applicant’s case for them and, again, it is perplexing why more applicants and, especially, their representatives, make it so, almost comically, difficult for this Tribunal to understand what the applicant is claiming and why.
All this said, though, the applicant has been, for the following reasons, successful, and, in some respects, his sheer obstinacy and complete lack of artifice has been something weighing, ultimately, to his credit, even if this case has been something of a nightmare, including of the applicant’s making, to comprehend and finalise.
The Applicant’s claims
The applicant, a citizen of the Republic of Georgia, founded [an industry 1] business in the capital Tbilisi in 2010. The applicant has a brother named [Brother A].[11] In 2012, [Brother A] joined the applicant in the [industry 1] business.[12]
[11] Statutory Declaration of [Ms A] dated 01 February 2023 at paragraphs 11-12.
[12] Applicant’s Statutory Declaration of 09 February 2023 at paragraphs 15-16.
The [Relative A] of the applicant and [his brother] was a man named [name].[13] [He] owned land in central Tbilisi. At some time prior to 2013, it is the applicant’s evidence that [Relative A] was approached by members of or agents of [Official A’s] office seeking to purchase this land at a below market value. [Relative A] rejected these approaches.[14]
[13] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 23.
[14] Applicant’s Statutory Declaration of 09 February 2023 at paragraph 4.
On 17 June 2013, the applicant and [Brother A] were granted visas to visit Australia. The purpose of this visit was to attend a [specified business event] in Melbourne. Both were interested in learning new methods [in industry 1] that would reduce [business] costs.[15]
[15] Applicant’s Statutory Declaration of 21 January 2014 at paragraphs 5-6.
On [dates in] July 2013, the applicant and [Brother A] were in Batumi, on the Black Sea coast of Georgia, for business.[16]
[16] Applicant’s Statutory Declaration of 21 January 2014 at paragraphs 7.
On [date] July 2013, the applicant and [Brother A] learned from his then wife [Ms A] that [Relative A] had been found dead in the offices of the applicant’s [business].[17] They returned to Tbilisi. [18]
[17] Statutory Declaration of [Ms A] dated 01 February 2023 at paragraphs 13-14.
[18] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 7.
On [the next day], arriving in the morning at the Tbilisi office, the applicant and [Brother A] reviewed what they say was the CCTV footage of their premises.[19] This footage showed that [Relative A] was in some form of negotiation or conversation with two unknown men in an office that belonged to the applicant.[20] At some point in this encounter these two unknown men showed [Relative A] some papers that they held. A few minutes later, one of these unknown men put a gun of some sort in the mount of [Relative A] – and then [Relative A] was to be seen collapsing to the floor. This CCTV footage showed the two men leaving [Relative A] with the papers they had shown him. [He] was later found dead by the [specified staff member].
[19] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 7.
[20] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 10.
The applicant was concerned by what the CCTV footage showed had happened in the applicant’s office. The applicant and [Brother A] took the video footage of [Relative A’s] collapse to the nearest police station in Tbilisi. The two reported the matter to the Police and left the CCTV footage of [Relative A’s] collapse with the police.[21]
[21] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 11.
Later that afternoon, the applicant was called by a police officer called [Officer A], who said he was a police office and requested that the applicant and [Brother A] return to the police station to discuss what had happened to [Relative A].[22] At the police station, the applicant and [Brother A] were taken by [Officer A] to an office or other place. A second unnamed officer attended with [Officer A] and asked the applicant and [Brother A] if copies had been made of the video footage that the applicant had earlier brought to the police station. When the applicant said that there were no other copies, [Officer A] assaulted the applicant by slapping him[23], while the other police office kicked [Brother A] in the stomach.[24] These police officers threatened the applicant and [Brother A] with imprisonment and death if they did not follow the instructions of the two officers.[25] [Officer A] required both the applicant and [Brother A] to sign a statement to the effect that [Relative A] was suffering unidentified personal and financial problems which caused him to have a fatal heart attack. Out of fear of death, the applicant and [Brother A] agreed to sign such a statement.[26]
[22] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 12.
[23] Statutory Declaration of [Ms A] dated 01 February 2023 at paragraph 16.
[24] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 13.
[25] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 14.
[26] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 15.
Both of the applicant and [Brother A] were first allowed to leave to go home and then return later to sign their statement.[27] However both men, knowing they were to leave for Australia, prepared to leave Georgia. Both men went into hiding in [a town outside] of Tbilisi.[28] While there, the applicant was visited by a friend, [Officer B], who was an officer of [Agency 1].[29] [Officer B] had learned that the two unknown men in the video were employees of his same [Agency].[30] [Officer B] advised the applicant and [Brother A] that they were at risk of harm and there was nothing that [Officer B] could do to help them.[31]
[27] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 16.
[28] Statutory Declaration of [Ms A] dated 01 February 2023 at paragraph 17.
[29] [Source deleted].[30] Statutory Declaration of [Ms A] dated 01 February 2023 at paragraphs 20-21.
[31] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 17.
[Later in] July 2013, the police searched the applicant’s home and office, searching for more video footage (if any) and other evidence. The officers took the business’s computers, documents, CDs, and DVDs from the home.[32] The applicant and [Brother A] remained in hiding at a house in the country.[33] The police also visited the apartment shared by [Ms A] and the applicant with their children. There, the Police also aggressively searched the apartment, again leaving a mess. [34]
[32] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 18.
[33] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 19.
[34] Statutory Declaration of [Ms A] dated 01 February 2023 at paragraph 24.
[The next day], applicant and [Brother A] departed Georgia for Australia.[35]
[35] Applicant’s Statutory Declaration of 21 January 2014 at paragraph 19.
[The following day], the applicant and [Brother A] arrived in Melbourne. Fearing harm, they did not attend the [event].
The Republic of Georgia
The applicant seeks Australia’s protection against his having to return to Georgia.
The evidence in relation to Georgia is that it is a country that has an ongoing struggle with public corruption, at all levels of the Georgian state, including its police force. Indeed, there is no reporting on Georgia that I have found that fails to mention Georgia’s problems with corruption.
The US State Department’s 2022 report on Georgia notes of the local law and corruption problem and it is worth setting out at some length:[36]
The law provides criminal penalties for officials convicted of corruption. While the government implemented the law effectively against low-level corruption, NGOs continued to cite weak checks and balances and a lack of independence of law enforcement agencies among the factors contributing to allegations of high-level corruption. NGOs assessed there were no effective mechanisms for preventing corruption in state-owned enterprises and independent regulatory bodies. NGOs continued to call for an independent anticorruption agency outside the authority of the SSSG, alleging its officials were abusing its functions.
In December 2021 [Transparency International] Georgia reported that “the current institutional model of combating corruption in Georgia does not include all functions (corruption prevention, investigation, implementation of anti-corruption policy, awareness-raising) necessary to curb corruption…there is no independent anti-corruption service that would effectively investigate corruption cases…the infrastructure necessary for the implementation of anti-corruption policy – the Anti-Corruption Council and its Secretariat – is not currently operational.”
On July 25, TI Georgia listed 85 uninvestigated cases of alleged corruption involving high-ranking public officials or persons associated with the ruling party.
Corruption: As of September 30, 90 public servants had been charged with corruption, including 55 employed at local municipality administrative agencies. Cases included five senior local officials, including the first deputy head of the SSSG, one mayor, one city council head, and one city council member. Investigations remained open in two high-profile corruption cases involving two former ministers: Dimitry Kumsishvili and Zurab Alavidze. Some observers considered the investigations politically motivated. The investigations lacked transparency, and authorities did not update the public on their progress.
[36] US Department of State, 2022 Country Reports on Human Rights Practices: Georgia, “Section 4. Corruption and Lack of Transparency in Government”
It is clearly the case that Georgia does have major problems with corruption. It is rated 41/180 countries in terms of corruption perceptions by Transparency International and its polling reveals that roughly 4% of Georgians admit that they have paid a bribe to use a public service.[37] One can only surmise that the 4% of admitting bribe payers among Georgia’s citizenry is the floor, not the ceiling, of corrupt practices.
[37] Transparency International site, accessed 08 May 2023.Relevantly for this case, a former official of the Constitutional Security Department, Giorgi Merebashvili, was charged in 2021 with participating in planning the killing of the Georgian businessman and presidential candidate, Badri Patarkatsishvili, in 2008. These charges only came about because of brave prosecutorial investigations that led to “…. the release of audio tapes dating back to 2007 in which former government officials were allegedly heard discussing methods of killing Patarkatsishvili that would make death appear natural.”[38] On any view, Georgia is a country struggling to operate the basics of a rule of law society.
[38] See the US Department of State, 2021 Country Reports on Human Rights Practices: Georgia, at s1A.Indeed, while reporting in English on Georgia’s internal problems is relatively sparse, it is very difficult to read any of that reporting, especially from Australian or allied governments, or even the most cautious NGO, and not see mention, at some length, of the (obviously rampant) problem of corruption in Georgia.
To put this matter in another way: research efforts for governmental or NGO reporting that either rebutted or just cast some doubt on the extent of corrupt practices in Georgia were entirely unsuccessful.
Accordingly, it is entirely plausible that the story told by the applicant is true, at least in terms of its generalised allegation that he has been threatened by corrupt and even murderous state authorities over land use. There is nothing about the applicant’s story that strikes me as remotely far-fetched given the independently reported state of corruption in Georgia. It would, on all the evidence of what has been reported about Georgia, seem a Herculean proposition to argue that Georgia does not have an endemic corruption problem. Quite obviously, Georgia does have a significant and ongoing problem with public corruption.
The only questions for the Tribunal are: did the events alleged by the applicant actually occur and does the applicant remain a man under threat of harm?
The Applicant’s Evidence
The harm the applicant fears in Georgia amounts to persecution. It includes being killed by corrupt officials or people acting for them, being arrested on false drug charges and imprisoned, and in prison being mistreated, assaulted, suffering cruel or degrading mistreatment or punishment, and/or being killed.
The applicant’s fear is based on his knowledge of and opposition to the corruption and criminality of government officials and, especially, of what he says is the corruption of the police in Georgia, given the death of his [Relative A].
It is the applicant’s evidence that he refused to provide a false statement to the Georgian police in relation to how his [Relative A] died. The applicant’s refusal to cooperate with the Georgian police was despite various threats to his life and his liberty. The applicant learned from his police friend [Officer B], that camera footage of his [Relative A’s] death showed Georgian security officers. The applicant then kept refusing any cooperation with the Georgian police and, more or less, fled from Georgia to come to Australia.
Applicant’s Vulnerability To Harms
The evidence given by the applicant of his refusing to cooperate with Georgian police, in the wake of his [Relative A’s] death, and his then fleeing to Australia, do give rise to the question of whether he would suffer harm by reason of an imputed political opinion: that the applicant is an opponent of the Georgian state’s corruption and its corrupt police.
Georgia is not a large country. The question of a “real chance” here relates to all areas of Georgia, due to the small size and population (3.5m people) of Georgia, and the corrupt nature of the post-Soviet, Georgian regime. It is a large proposition to assert that a person like the applicant is safe to return if the evidence is to be accepted that he is an avowed opponent of the Georgian police, especially as respects a murder or death of an [Relative A] that is related to police intriguing over the [Relative A’s] land in the capital Tbilisi. [Details deleted.][39]
[39] [Deleted.]Given the nature of the Georgian state and its lack of an independent judiciary or executive oversight, it is hard to see how the applicant could – ever – seriously rely on other institutions to assist or even protect him if he returned to Georgia. There is no way that the applicant can realistically relocate to another area of Georgia and obtain protection from Georgian police who seem most likely to harm him.
There is no realistic chance for the applicant to ‘modify his behaviour’ when his vulnerability is based on his identity as a witness or informant in relation to the suspicious death of his [Relative A]. Further the only way for the applicant to potentially protect himself would be to give false evidence in relation to the death of his [Relative A]. This would, effectively, amount to an Australian decision maker recommending that the applicant engage in perjury, which is obviously an abhorrent suggestion.
Therefore, in view of all of the above, the crucial issue is this: can or should the applicant be believed?
Assessing the applicant’s credibility
Relevantly, in assessing an applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is well-founded or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation.
Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is this Tribunal required to accept uncritically any and all the allegations made by an applicant.[40]
[40] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal must first make findings of fact on the claims that she or he has made. This may - and indeed, almost always will – involve an assessment of the particular applicant's credibility. This is certainly true in a case like this, where all of the direct evidence is from the applicant himself. Ultimately belief in the applicant’s credibility leads to further acceptance of what an applicant says either happened or did not happen.
In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection. The Tribunal is, in this case, as in all cases, aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. For many if not most applicants, they are preparing a case in English when and where English is not their first or second language. Some applicants have little or no English proficiency. As a general rule, this Tribunal will grant the benefit of the doubt to applicants who are generally credible even if they are unable to substantiate all of their claims. At the same time, an applicant who is not credible will struggle to make out their case.
All of this said, as was stated above, the Tribunal is not obliged to accept at face value, or at least, uncritically, the claims and allegations made by an applicant. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence, especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[41]
[41] Randhawa (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai; (1994) 34 ALD 347 at 348 per Heerey J; Kopalapillai (1998) 86 FCR 547.
It is noteworthy that s 423A of the Migration Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made earlier, or the evidence not presented, in the time before the primary decision was made. This approach is the application of a rule of common sense in respect of judging adversely an applicant’s credit where she or he has engaged in delay or an omission to speak or act.[42]
[42] see Nominal Defendant v Clements (1960) 104 CLR 476 at 495 per Windeyer J.
This Applicant’s Credibility
In this case, the applicant has had a consistently stated fear for himself and for his return to Georgia, based on a reasonably consistent narration of the events of 2013. In his interviews with the Department, and in the materials filed with this Tribunal, there is a repeated and consistent explanation of how and why the applicant arrived in Australia and what the harms both were and are that give rise to the applicant’s fear.
This is not a case where, in the roughly 10 years after the applicant’s arrival in Australia, that he has caused contradictions or gaps to appear that suggest the applicant is altering or “improving” on the case he first made when he claimed protection by Australia.
Where an applicant, commences a case in 2013, and that case’s asserted facts change in the ensuing decade, then a decision maker can, with some justification, as well as the application of common sense, doubt what is being alleged or relied on by an applicant as a basis for their protection claim can be accepted. That is not this case.
In this case, the applicant has put forward a very consistent view of the facts he alleges happens, in respect of:
a.the applicant’s life in Georgia pre-2013;
b.the applicant’s business in Georgia;
c.the death of [Relative A];
d.the conduct of the Georgian police investigating (or not investigating) the death of [Relative A];
e.the sufferings of himself and his family as a result of the Georgian state and police; and
f.the applicant’s fleeing Georgia for Australia.
It is true that the main evidence in this case is all from the applicant. There is repeated support for the applicant’s case in the evidence of his witnesses, such as his former wife.[43] Yet this case rises or falls, ultimately, on whether the applicant can and should be believed.
[43] Statutory Declaration of [Ms A] dated 01 February 2023.
In my view the applicant is an honest narrator of the events that found this protection claim, so far as one can discern, and he is entitled to the benefit of the doubt. Further, as mentioned above, the applicant seemed to some degree to get in his own way in these matters, I suspect because the events of July 2013 remain in his mind and still cause him great trauma. I find the applicant’s conduct in the narration of his life, from what is before me, to have been the behaviour of an honest man, perhaps unsophisticated, who genuinely fears for his safety. In all the circumstances of this case and given the evidence of the nature of the Georgian state, I find those fears to be highly credible and the applicant to be deserving of Australia’s protection.
It is noteworthy that s 423A of the Migration Act requires that in circumstances where the Tribunal is not satisfied with an applicant’s explanation then the Tribunal is to draw an inference unfavourable to the credibility of the claim.
In this case, I draw inferences favourable to the applicant, as his evidence is consistent, has essentially been the same since 2013, and he has not, in my view, improved on or contradicted earlier evidence. The applicant should, in the absence of reasons to the contrary, be believed and rightly fearful of returning to Georgia.
FINDINGS
Therefore, based on the whole of the evidence supplied by the applicant and others in this case, I find that that the applicant satisfies the criteria for protection by Australia on both refugee and complimentary protection grounds.
Thus, for the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) as the applicant is a refugee.
While it is not necessary for me to make a further finding in respect of complimentary protection, I would, for the sake of completeness, state that were I wrong to find in the applicant’s favour under s 36(2)(a), I would still find that the applicant is a person in respect of whom Australia has complimentary protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 16 May 2023 at 11:28am
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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Protection visas – criteria provided for by this Act
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A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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