2305666 (Refugee)

2305666 (Refugee) [2024] AATA 4028 (2 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Serguei Tchernine (MARN: 0106729)
CASE NUMBER:  2305666
COUNTRY OF REFERENCE:                   Georgia
MEMBER:Sophie Manera
DATE:2 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 September 2024 at 2:16pm

CATCHWORDS
REFUGEE – protection visa – Georgia – political opinion – United National Movement – low-level political profile – threats of harm – claimed arrest – credibility concern – vague and unpersuasive oral evidence – lack of corroborative evidence – document brokers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 April 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a [age]-year-old man and claims to be a citizen of Georgia, first arrived in Australia [in] February 2017. He applied for the visa on 31 March 2017. The applicant made the following claims in his protection visa application form:
·he fears persecution by the Georgian authorities because of his political opinion;
·he has openly criticised the Georgian government for its widespread corruption and intolerance to opposition views;
·the applicant would continue to express his political opinion if returned to Georgia;
·the applicant fears he will be arrested again, detained, insulted, and unable to find a suitable job;
·the Georgian authorities treat dissenters badly;
·on a few occasions the applicant was arrested by police in Batumi because he had openly expressed his political opinion;
·the applicant was once fired a few days after starting a new job;
·the applicant was twice detained after attending protests in Batumi;
·the applicant tried to seek protection in Adjara but was unsuccessful;
·the applicant fears he will be harmed and mistreated if returned to Georgia. He also fears that due to his bad reputation he will be unable to find a suitable job;
·the applicant would not be able to relocate anywhere in Georgia.
The applicant was not invited to attend an interview with an officer of the Department. On 6 February 2023 an officer of the Department requested further documents and information from the applicant to support his claims for protection.
On 12 March 2023, the applicant’s representative provided the following documentation to the Department:
·An uncertified copy of a United National Movement membership letter (with English translation) dated [in] May 2008.
·An uncertified copy of a letter from the Georgian Police confirming the applicant’s detention and release [in] October 2016 (with English translation), dated [in] October 2016.
·An uncertified copy of letter from a Medical Centre indicating the applicant was hospitalised [in] October 2016 with multiple bruises on chest and face (with English translation), dated [in] October 2016.
On 12 April 2023, the applicant’s representative submitted a letter on behalf of the applicant, stating:
·The applicant was a member of United National Movement since 2008.
·He was targeted by Georgian Dream Party (GDP) authorities for participating in mass protests against pro-Russian policies.
·The applicant was arrested [in] October 2016 for ‘repeatedly violating the rules, for organising and holding a meeting or demonstration’. The applicant was placed in temporary detention and released only after paying a fine.
·The applicant is on the GDP ‘radar’ and will be persecuted if he returns.
·The applicant claims that he was allowed to leave Georgia because the authorities wanted him to leave.
·The applicant was admitted to the emergency department with multiple bruises on his chest and face.
·The applicant had the right to reside in [Country 1] until 29 November 2017.
·The applicant is facing issues obtaining documents in Georgia. Finding documents related to political events is a problem as people are afraid of the consequences and refuse to get involved.
Due to the lack of detail in the application, lack of supporting evidence and failure to provide further information and comment, the delegate was not satisfied that the applicant’s claims were genuine. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
On 23 April 2023 the applicant made a valid application for review to the Tribunal. The applicant provided a copy of the Department’s decision record to the Tribunal.
On 12 August 2024 the applicant provided the Tribunal with a further written statement dated 10 August 2024. In it, the applicant claimed:
·Since 2016 he has been actively involved in national movements opposing the Georgian government’s policies.
·He has participated in rallies and meetings to advocate for democratic reforms and transparency.
·He is deeply committed to democratic values.
·[In] October 2016 his activism led to his arrest on fabricated charges.
·Whilst detained, he endured severe physical abuse and was coerced into renouncing his views. He was placed in solitary confinement and fined 5,000 GEL, which he had to pay to be released. He required medical treatment.
·The applicant and his family faced persistent harassment and threats from authorities and anonymous sources, impacting their safety and ability to live freely in Georgia.
·The environment of fear and intimidation forced him to leave Georgia.
·The political situation in Georgia has worsened. The Georgian government is characterised by pervasive corruption, bribery and nepotism. This allows those in power to act with impunity.
·The government has adopted a controversial Foreign Influence Bill, which has been criticised as an attempt to supress dissent and curtail democratic freedoms.
·There are reports of brutal treatment of protestors.
·The applicant provided various links to country information in his statement.
The applicant appeared before the Tribunal on 16 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Georgian and English languages.
The applicant was represented in relation to the review, however his representative did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Georgia, born in [Town 1], Adjara.
The applicant provided a certified copy of his passport bio-data page in support of his protection visa application. This document states his place of birth is [Town 1] and his nationality is Georgian.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Georgia, and as such his protection claims will be assessed against Georgia as the country of reference and ‘receiving country’ respectively.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis, findings and reasons
Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[3] The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Political interest and initial involvement
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
During the hearing the applicant provided further details of his involvement in politics in Georgia. He said that he decided to become a member of the United National Movement (UNM) at the start of May 2008 as he felt this party had a good influence on the country. On 7 August 2008 he was shocked to hear that Russia had attacked Georgia in the Kodori Valley (Upper Abkhazia). He feared Russia could continue attacking Georgia and he wanted to defend his country. He commenced the process of joining the military. On 11 August 2008 the violence stopped with the assistance of the European Union and other international leaders. This conflict sparked the applicant’s interest in the development and future of his country. In 2011 the applicant travelled to [Country 1] to further his education. In 2012, the GDP won the parliamentary elections and the UNM became the opposition. While in [Country 1], the applicant kept in contact with UNM members.
The applicant said he returned to Georgia in 2016. After his return, he became more involved in the UNM. He attended daily meetings at his local UNM district office. He supported the UNM prior to the 2016 election by doorknocking in his local area and explaining the UNM’s principles and policies and why the GDP was not acting in the best interests of its citizens. When asked how he expressed his political opinion, the applicant said he spoke to people and criticised corruption and injustice. He encouraged people to vote for the UNM. He also attended protests with other UNM supporters. He did not state that he had ever engaged in online activism.
Claimed involvement in protests
The Tribunal noted, and put the applicant, that some of the information and claims put to the Department were inconsistent with what he had told the Tribunal during the hearing, and this may impact his credibility. For example, earlier in the hearing he had said that he was addressing people at the front of a protest when he was arrested. However, he had not claimed at any previous time, for example in any of his documentary evidence, that he had been addressing the protesters at the time he was arrested. The applicant said that he had not addressed the crowd, he was simply a part of it. He did not explain why he said earlier in the hearing that he had addressed the protesters.
Claimed organising of political events
Furthermore, he also stated during the hearing that he had been involved in organising political events. The Tribunal put to him that he had not previously stated in any of the documents provided to the Department or Tribunal that he had been involved in political organising. The applicant said that he was not involved in organising events himself, but he followed the orders of the UNM organisers. He did not explain why he had previously said in the hearing that he had been involved in political organising.
Claimed threats of harm
The Tribunal also put to the applicant that aspects of the evidence he had given during the hearing seemed vague, which may affect the credibility of his claims. For example, the applicant said that his brother and father regularly received threats from unknown persons, believed to be criminals acting on the instructions of the authorities. He said that from time-to-time unknown men would approach his family’s apartment building and would call up to the applicant’s family and tell them to behave and not make any mistakes. The men did not say who they were. The applicant also said that on occasions when the applicant’s brother was leaving the building, men would approach him, threaten him and tell him he could not find a job and then disappear.
The applicant said that his family members were so stressed by these threats that they developed health problems. His brother had a lung problem and his father had a heart problem. When pressed, the applicant acknowledged that his family members’ health problems could have been caused by anything, however he believed they were connected to stress caused by the threats. The Tribunal also asked the applicant why, if his family was so stressed by the threats, did they take no action or change their daily routine. They continue to live at the same apartment in the city, despite the applicant’s oral evidence that the family also own a house in a town approximately 30 or 40 km away. The Tribunal also asked the applicant how he knew these threats were coming from the authorities, or criminals connected with the authorities, considering the assailants do not say who they are or where they are from. The applicant said that it is common practice for the government to use criminals to harass people. The applicant said this had happened to many families in Georgia. He said that his family had asked for help from solicitors, but no one would assist them.
The Tribunal does not accept that either the applicant or his family have suffered threats from criminals connected with the authorities in Georgia. It finds the applicant’s oral evidence regarding the threats to be vague and unpersuasive. Firstly, there is no persuasive evidence that the threats are connected with the Georgian authorities considering, on the applicant’s evidence, he and his family do not know who are making threats. On the applicant’s oral evidence, he thinks the threats come from criminals arranged by the government because that is what people say. The applicant did not provide substantial details of how often the threats occur, how his family members have reacted to the threats, how the threats impact their day-to-day lives, and why they haven’t done anything about them besides talk to a solicitor. When this lack of detail was put to the applicant, he responded that he could not change the reality and the people who ring do not give a name. This answer does not assuage the Tribunal’s concerns or address the gaps in the applicant’s evidence.
Secondly, the Tribunal is concerned by the absence of corroborative evidence of the threats. While the applicant said that his parents have tried to seek assistance from solicitors, he has provided no evidence of this. The Tribunal finds it would have been reasonable for the applicant to have provided some evidence of the alleged threats to his family, such as evidence of contact with the solicitors or written or oral evidence from his brother or father. The applicant said that he was not aware that his brother could provide evidence, as a letter from his brother wouldn’t be an official document. The Tribunal does not accept this response because it notes that the applicant has been represented since he lodged the application, he has provided his own written statements in support of his application, and it is stated on the hearing invitation form that an applicant may provide evidence from another person, including by telephone, and that witnesses should provide a written witness statement to the Tribunal. The applicant did not state that he had not received the hearing invitation, that he could not read it, or that his agent had not explained the contents to him.
Claimed arrest

During the hearing the applicant stated that he has been arrested on one occasion, [in] October 2016. This allegation was also made in his representative’s submission of 12 April 2023. However, in his protection visa application form the applicant stated that on a few occasions he was arrested by police for attending protests. When this inconsistency was put to the applicant in the hearing, he responded that on a few occasions he was held by the police, but was let go without arrest. The Tribunal is concerned by this answer. The applicant did not explain why, initially, he mentioned being arrested ‘a few times’ (albeit with very little detail of these occasions), and then he later provided specific details of one arrest on one occasion in October 2016, without mentioning other occasions of being detained by the police. The Tribunal considers this inconsistency to be significant, considering the applicant claims he was required to pay a substantial fine to be released and he claims to have suffered injuries from the police on that occasion.
Considering the applicant’s high level of education, the fact that he was represented by a migration agent at time of lodging his application, and his oral evidence that he understood the contents of his protection visa form, the Tribunal does not accept the reason provided for the discrepancy in evidence.
The Tribunal finds the inconsistent evidence provided casts doubt on the applicant’s claimed arrest. As such, the Tribunal does not accept that the applicant has been arrested and detained in Georgia.
Findings on the applicant’s political profile
Given the inconsistencies and vagueness in parts of the applicant’s evidence, the Tribunal finds that he has embellished aspects of his claims and evidence for the purposes of strengthening his application for review.
As such, the Tribunal accepts the applicant was a UNM member and he supported the UNM in political events prior to the 2016 election by doorknocking, attending political meetings at his local UNM office, and attending protests. On the evidence, the Tribunal finds the applicant had a low-level political profile in Georgia.
The Tribunal has considered the documents provided by the applicant to the Department, namely the UNM membership letter, the letter from the Georgian Police confirming the applicant’s detention and release [in] October 2016, and the letter from a medical centre. The Tribunal noted, and put the applicant, that the documents look very similar, in that the formatting and layout of each document was the same; they looked like they had come from the same place or had been prepared by the same person who had simply changed the contents of each document and inserted a different logo at the top of each document. The Tribunal informed the applicant that, considering country information that document brokers, who produce fake documents such as employment certificates or documents supporting asylum claims in exchange for money, are in high demand in Georgia,[4] and considering the Tribunal’s concerns regarding the documents’ appearances, it may find that the documents are bogus and may not place any weight on them. The applicant said that he asked for documents from various people and this is what he got. He could not explain why the documents looked strikingly similar. He acknowledged that there was corruption in Georgia but said that he did not think these documents have been fraudulently prepared or obtained. He did not explain why. The Tribunal asked the applicant how these documents were obtained. The applicant said his brother obtained the police letter from the archives of a government department. He said that his brother made a request to one department, he was sent to another department, and eventually he found someone who was able to obtain the document for him. His brother promised the person who helped him that he wouldn’t disclose who had provided him with the document, which indicates to the Tribunal that the document was not obtained by authorised means. The Tribunal finds this evidence vague and unconvincing. The police letter provided by the applicant purports to come from a Police Major at the [number] Subdivision of the Batumi Police. The Tribunal finds it is reasonable for the applicant to have provided more specific details as to how the police letter was obtained. Furthermore, the applicant’s evidence that the document was obtained covertly is inconsistent with its contents, namely that it was issued by a Police Major. The Tribunal’s concerns are not assuaged by the applicant’s responses.
[4] Migration Drivers Report: Georgia as a Country of Origin', European Union Agency for Asylum (EUAA), 17 August 2022 < Migration Drivers Report: Georgia as a Country of Origin (europa.eu)>
Considering the Tribunal’s concerns regarding the similar appearances of the 3 letters, and country information on the prevalence of bogus documents from Georgia, the Tribunal does not accept the 3 letters were genuinely issued by the relevant bodies. As such, the Tribunal places no weight on the UNM membership letter, letter from the Georgian Police and medical centre letter.
The Tribunal does not accept the applicant was arrested and detained [in] October 2016 nor that the applicant and his family have received threats from the authorities or criminals. The Tribunal does not accept the applicant has come to the adverse attention of the authorities, criminals, or any other person or organisation because of his political activity. The Tribunal does not accept the applicant was fired from a job after a few days because of his political activity, nor that he would be unable to find work because of his reputation. This is because there is no persuasive evidence to support these claims. The Tribunal has credibility concerns with the applicant’s evidence regarding his claimed arrest, and the claimed threats.
Furthermore, considering the applicant does not claim to have been involved in Georgian politics since arriving in Australia, the Tribunal does not accept the applicant would have a political profile if returned to Georgia. While the applicant claims to have sent money to his brother to pass to UNM protestors, he said during the hearing that he simply sends money to his brother’s bank account. On the applicant’s evidence, there is no proof that this money could be identified as his financial support for the UNM or protestors.
The applicant said that he thinks he is on a GDP ‘blacklist’. However, the Tribunal queried how he was able to depart Georgia without any problems if he was on a government blacklist. The applicant said that by leaving the country he would not cause any problems for the government. However, the Tribunal is not satisfied by this answer. Firstly, there is no persuasive evidence to indicate that the GDP kept a blacklist of opponents at the time the applicant departed Georgia in 2017. Country information indicates that in 2024 the GDP decided to create a database containing information on all individuals ‘who are involved in violence, blackmail, threats and other illegal acts’, or ‘who publicly endorse these actions’.[5] Furthermore, as put to the applicant, allowing him to depart Georgia would not prevent him from engaging in political activities from overseas, such as engaging in online activism or sending money to the UNM from overseas. The Tribunal cannot reconcile the applicant’s response with his claim that the GDP is stifling dissenters. The applicant said that this was why his family continued to receive threats. However, this answer does not explain why the Georgian authorities allowed him to depart. The Tribunal finds that the applicant did not encounter any problems when departing Georgia because he has not come to the adverse attention of the authorities and is not on a government blacklist.
Does the applicant have a well-founded fear of persecution if returned to Georgia?
[5] Civil Georgia | Speaker Announces Launch of Incriminating Database on Opponents
The applicant provided the Tribunal with several links to news articles. The Tribunal has also conducted its own research into treatment of UNM members and political dissidents. The Tribunal notes there have been recent protests in Georgia following the Georgian parliament’s reintroduction of a ‘transparency of foreign influence’ bill, also known as the ‘foreign agents’ law. Anti-government protests erupted in Tbilisi and other Georgian cities in April 2024, following the GDP’s announcement that it would reintroduce the law, which targets civil society groups and media that ‘promote interests of foreign powers’.[6] After the bill was passed in May 2024, thousands of protesters clashed with the police outside the parliament building in the centre of Tbilisi.[7] Young people in particular have dominated a huge street protest movement.[8] Tens of thousands of protestors gathered to protest the bill.[9] On the applicant’s oral evidence, and on the country information, protests against the foreign agents law ended in June 2024. However, the Tribunal acknowledges that with parliamentary elections due to be held in October 2024, there is likely to be an increase in political activism and confrontations in the lead up, and clashes between demonstrators and the authorities are possible.
[6] Georgian Dream endorses Chinese report accusing NED of ‘instigating protests’ in Georgia (oc-media.org)
[7] Georgia’s ‘foreign agents’ bill: What’s the controversy about? What’s next? | Protests News | Al Jazeera
[8] Georgia’s future path at stake as protests divide nation (bbc.com)
[9] Georgia’s ‘foreign agents’ bill: What’s the controversy about? What’s next? | Protests News | Al Jazeera
When asked what political involvement he would have if he returned to Georgia, the applicant said that no ‘normal’ person in Georgia could fail to be involved, however he did not specify what he personally would do. Considering the applicant’s previous involvement in politics, and considering the protest movement appears to be driven by the youth, the Tribunal accepts the applicant would attend protests, if the opportunity arose, if he returned to Georgia. However, considering the applicant’s evidence as to his previous political activities in Georgia, the Tribunal finds he would not be involved in organising or speaking at protests, rather he would be an ordinary, low-profile attendee. The Tribunal finds that the applicant would continue to express his political opinion in a similar manner to what he has previously done.
Country information reports incidents of well-known activists and opposition politicians being targets of violence, abusive phone calls, threats and intimidation from the Georgian authorities. For example, one report states that David Katsarava, a well-known activist, was assaulted by police at a protest rally.[10] Opposition leader Levan Khabeishvili said he was beaten by police at a protest.[11] On the evening of 8 May 2024, 3 separate violent attacks were registered in Tbilisi against Dimitri Chikovani, a member of parliament from the opposition UNM party, Lasha Ghvinianidze, an organizer of pro-opposition bikers’ marches, and Gia Japaridze, a former diplomat and university professor who is the brother of the leader of the Girchi opposition party, Zurab Japaridze.[12] On the morning of 11 June 2024, Zuka Berdzenishvili, a civic activist, was attacked by 3 unknown men near his home in Tbilisi, suffering head injuries. This occurred hours after the Speaker of the Parliament, Shalva Papuashvili, published a post on social media naming Berdzenishvili as one of the ‘outraged citizens’ participating in an ‘organized and politically motivated campaign of terror’ against members of the GDP.[13]
[10] Georgia’s future path at stake as protests divide nation (bbc.com)
[11] Georgian opposition member says government is intimidating protesters | Reuters
[12] Georgia: Authorities must address violent attacks against critics and bring perpetrators to justice - Amnesty International
[13] 'Georgia: Authorities must immediately investigate attacks on government critics', Amnesty International, 11 June 2024, 20240808163423
One news article provided by the applicant states that several organisers of the protests against the foreign agents law have been targeted for brutal attacks at their homes or workplace by unidentified gangs.[14]
[14] Georgia police accused of beating protesters against ‘foreign influence’ bill | Georgia | The Guardian
The Tribunal also notes that the UNM’s central office in Tbilisi was vandalised on the night of 31 May to 1 June 2024.[15]
[15] UNM says party central office attacked - 1TV
The Tribunal has also considered the applicant’s evidence that the GDP are targeting a ‘global war party’. The applicant has provided news articles related to the GDP’s rhetoric and pretence that this is a conspiracy by the West against the GDP. According to one news article:[16]
It is hard to pin down what or whom Georgian Dream politicians mean by the "global war party." The amorphous term has been used as a dog whistle to castigate perceived opponents: at various times, the European Commission, the European Parliament, the European Council, the U.S. Congress, the U.S. State Department, the Georgian opposition United National Movement, and Swiss banks.
[16] Georgian Dream Takes On The 'Global War Party' (rferl.org)
The Tribunal notes reports that the protests have largely been peaceful, however it also notes that outbreaks of violence have occurred and police officers armed with water cannons and teargas have been accused of beating protesters.[17]
[17] Georgia police accused of beating protesters against ‘foreign influence’ bill | Georgia | The Guardian
The Tribunal put to the applicant that country information indicated that low-profile political party supporters or activists may not face a real chance of serious harm from the authorities or criminals. The applicant said that normal people who had taken part in the protest had also had some problems. He also said that GDP leaders had blamed the ‘global war party’ and threatened to punish all UNM supporters after the election. The Tribunal informed the applicant that, on the country information before it, it did not have evidence that threats of punishment had been made against all UNM members. The applicant did not present any evidence to the Tribunal which indicated that all UNM members would be punished after the October 2024 elections. The Tribunal does not have any persuasive evidence that all UNM members will be punished after the October 2024 election.
The Tribunal accepts there is a campaign of intimidation against critics of the Georgian government. However, on the country information, this appears to be directed towards high-profile activists and critics. The Tribunal notes that tens of thousands of Georgians have joined protests into Tbilisi, Batumi, and other parts of Georgia in recent months, and that protests had been largely peaceful. On the country information, low-profile political party supporters do not appear to be systematically targeted by the authorities, or criminals acting on their instructions, for political reasons. On the evidence before the Tribunal, and considering the applicant’s profile, previous political activism, and the Tribunal’s findings on his future political activism, it does not find the applicant has or would have a sufficiently high profile to personally come to the adverse attention of the authorities in Georgia. There is no persuasive evidence that low-level political party supporters or activists face a real chance of serious harm from the authorities or criminals for reasons of political opinion.
The Tribunal has also considered the claim, contained in the representative’s letter submitted on 12 April 2023, that people are afraid of the consequences of assisting the applicant. However, there is no persuasive evidence to substantiate this claim. The applicant has not provided further details of this, apart from his assertion that solicitors have not assisted him or his family. Furthermore, the Tribunal also notes that the applicant has provided documents in support of his application, which have been considered above. The applicant has not specifically claimed, and the Tribunal finds there is no persuasive evidence to suggest, that he faces a real chance of serious harm simply because people in his community will not assist him.
The Tribunal finds that if the applicant returned to Georgia, and if he continued his political activities at the same level as he had previously done in Georgia, he would not face a real chance of serious harm from the authorities or criminals for reason of his political opinion or for any other reason.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for reasons of his political opinion or for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
Member

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.
…
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.
…
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.
…
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.
…
5H    Meaning of refugee
(1)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.
…
5J     Meaning of well-founded fear of persecution
(1)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.
(2)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.
(3)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.
(4)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.
(5)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.
(6)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
(1)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.
(2)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.
…
36     Protection visas – criteria provided for by this Act
…
(2)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.
…

[2024] AATA 4028

2 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction