2307933 (Refugee)

[2024] ARTA 778

2307933 (REFUGEE) [2024] ARTA 778 (10 DECEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2307933

Tribunal:General Member R Johnston

Date:10 December 2024

Place:Sydney

Decision:The Tribunal sets aside the decision under review and remits the applications for protection visas for reconsideration, in accordance with the orders that:

(i)the first named applicant meets s 36(2)(a) of the Migration Act; and

the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.(i)

Statement made on 10 December 2024 at 9:12am

CATCHWORDS

REFUGEE – protection visa – Georgia – imputed political opinion – opposition to the government – physical assault – fear of killing – police corruption – extortion – electoral fraud – administrative detention – state protection – decision under review remitted

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

Saliba v MIMA (1998) 89 FCR 38
V v MIMA (1999) 92 FCR 355

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant applied for the visa on 22 March 2018 with his then wife, who has a related matter before the Tribunal. At the time the visa application was submitted to the Department, the second named applicant was not yet born. The second named applicant was born in [specified year] and was subsequently added to the first named applicant and his then wife’s visa application.

3. On receipt of evidence confirming the first named applicant and his wife had divorced [in] December 2021, the Departmental delegate decided to treat the first named applicant’s application as separate from that of his wife. The second named applicant was included as an applicant in both the first named applicant’s application and that of the first named applicant’s former wife.

4. On 18 May 2023 the Departmental delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.

5. On 6 June 2023 the applicants lodged an application for review of the delegate’s refusal decision with the former Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

6. This decision and statement of reasons is made by the Tribunal.

   CLAIMS AND EVIDENCE

   Claims and evidence before the Department

   Protection visa application – first named applicant

7. The first named applicant and his then wife lodged a protection visa application on 22 March 2018. In that application he provided he was born in [year], and that he speaks, reads and writes Georgian. The first named applicant and his then wife included with their application a cover letter that stated they had found it difficult to complete the form as they do not speak any English and have extremely limited access to a Georgian interpreter, with no Georgian interpreters available through the telephone interpreting service. They outlined they had no friends to assist them to complete the forms and that they would be happy to provide further information or documents at an interview with the Department.

8. The first named applicant makes the following claims in his protection visa application form:

   ·     He suffered serious harm including assaults and threats of death in order for the [Police Leader 1] of [Town 1], [Officer A], to extort some land from him. With the co-operation of the other authorities he was able to continue to harass and attack him with impunity in order to have him give him the land.

   ·     He fears being seriously harmed, including being killed, by [Officer A] and his associates, as well as other affiliates including among the authorities in Georgia.

   ·     He was seriously assaulted on a number of occasions and threatened by [Officer A] and his men. On one occasion they [inflicted injury 1].

   ·     The harm he feared was from members of the Georgian authorities. When he initially considered reporting the matter to the authorities, he was threatened with death if he did so.

   ·     There is no part of Georgia in which he would have been safe.

   ·     He fears harm from the Georgian authorities.

   Protection visa application – second named applicant 

9. On 31 January 2023 the second named applicant’s mother lodged a Part C application for a protection visa on his behalf to the Department. In that application it is stated the second named applicant relies on his mother’s claims for protection. His mother claimed in her protection visa application to have experienced threats and harm from [Officer A] and the Georgian authorities.

10. On 31 January 2023 the second named applicant’s mother provided the Department with a NSW Birth Certificate for the second named applicant. The first named applicant is listed as his father in that document.

    Updated information to the Department

11. On 17 October 2022 the first named applicant’s wife provided the Department with a form 1022 notifying it that she was married but that she has been divorced from the second named applicant since [December] 2021.

    Interview with the delegate and the delegate’s requests for information

12. The first named applicant was invited with his then wife on 20 January 2023 to attend an interview with a delegate of the Department on 17 February 2023, to be conducted via WebEx remote video link.

13. On 7 February 2023 the first named applicant’s then wife wrote to the Department seeking that the interview scheduled for 17 February 2023 be rescheduled. It was noted at that time that the second named applicant was [age] old.  

14. On 8 February 2023 the Departmental delegate wrote to the first named applicant and his former wife on several occasions. In their various correspondence of 8 February 2023 the Departmental delegate:

    ·     Advised the first named applicant and his former wife that the interview scheduled for 17 February 2023 had been cancelled.

    ·     Requested from the first named applicant and his former wife that they complete a form 1022 and notify the Department of any changes of circumstances in their relationship.

    ·     Requested that the first named applicant and his former wife provide more information for a protection visa, including details about their relationship status, if both applicants maintain separate claims for protection, and how they were able to exit Georgia with Georgian passports if they were of interest to the Georgian authorities. The Departmental delegate also requested specific information related to the first named applicant’s claims, including evidence of extortion from [Officer A], the times, dates, and locations of claimed incidents, an outline of why he was specifically targeted by [Officer A] and the Georgian police, evidence of injuries, assaults, and threats, and why he is still of adverse interest to the authorities now.

    ·     Acknowledged the Department had been advised on 17 October 2022 that the first named applicant and his former wife had divorced [in] December 2021. The delegate explained his application would therefore be assessed separately to his former wife.

15. On 3 March 2023 the first named applicant provided a written submission in response to the Department’s 8 February 2023 request for information. In that submission he provides the following information/submissions:

    ·     His ex-wife was a [Position 1] of  [Town 1] [Election Authority 1]. She was involved in the process of elections and because of the different political opinions she appeared into serious troubles and the people related to the authorities started intimidating her.

    ·     [Officer A], who was the [Police Leader 1] in [Town 1], was organising activities of intimidation, harassment, and threats on alleged political grounds.

    ·     [In] September 2017 the police officer [named] informed him to appear in the police station in [Town 1]. When he came there, he saw police officers and politically motivated persons who supported the government and their candidate. Among them was [Officer A] who was the most aggressive towards him.

    ·     He kept telling him to assure his wife to ignore any violations of rigged elections. They requested that he force his wife to issue false information about the candidate of opposition. He could not consent to it.

    ·     After that day, [Officer A] attempted to threaten his family.

    ·     [Later in] September 2017 he was called to meet [Officer A] and his friends near the [location 1]. He arrived at the mentioned place, where four to five policemen and [Officer A] were waiting for him. They told him that because he did not fulfill their request the would extort land from him and he would register the land in [Officer A’s] name. He refused to do it and suddenly they attacked him, made him fall on the ground and several men were hitting and punching him together. During the occasion they [injury 1]. When they realised that he may die, one of the policemen took him to the hospital. On the way he was warned not to mention their names at the hospital. He has attached a photo as proof of evidence.

    ·     On one occasion he was on the street close to his house when a drunk [Officer A] came close to him by his car and started insulting him with a gun in his hand. He was threatening him to death. He is more stressed and scared of living in his country because he has a [young child] and maybe they will harm him for revenge. His relatives in Georgia are always warning him not to go back there.

    ·     He got divorced [in] December 2021. [Details deleted.] He has provided evidence.

    ·     His cousin [named] knows about his problem. He organised to get their visas and helped them to leave the country confidentially.

16. Included with his submission was a photograph of the first-named applicant [showing an injury 1]. The photograph was undated.

17. On 4 March 2023 the Department was provided with a certified copy of a Georgian Divorce certificate confirming that the first named applicant and his former wife divorced [in] December 2021.

    The delegate’s decision

18. On 18 May 2023, a delegate of the Minister refused the applicants’ protection visa application. The delegate did not accept on the evidence before them that the first named applicant was subject to harassment from the Georgian authorities, that the Georgian authorities tried to extort property from the first named applicant, that the first named applicant was physically assaulted by the Georgian authorities, or that the first named applicant departed Georgia due to persecution from the Georgian authorities. The delegate was not satisfied that the first named applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Georgia, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the first named applicant is not a person in respect of whom Australia has protection obligations, and nor is the second named applicant.

    Claims and evidence before the Tribunal

    Review application

19. On 6 June 2023, the applicants lodged an application for review of the delegate’s decision. They included with their application a copy of the delegate’s decision.

    Pre-hearing evidence

20. On 9 August 2024 the first named applicant provided the Tribunal with a copy of the written statement he had provided to the Department on 3 March 2023. On 10 August 2024 he provided the Tribunal with a copy of the photograph he had supplied the Department of his [injury 1].

21. On 6 September 2024 the first named applicant provided the Tribunal with the following supporting documents:

    ·     [Region 1] Police Department [Town 1] Division Request for Summons dated [in] September 2017 – original Georgian document and certified translation.

    ·     Medical documentation form issued [in] August 2024 confirming the first named applicant was admitted to the [Town 1] hospital [in] September 2017 with [specified symptoms] and an [injury 1]. The first named applicant provided a copy of the original Georgian document and a certified translation.

    The hearing

22. On 6 August 2024 the Tribunal wrote to the applicants indicating that their file was being prepared to be allocated to a Member and seeking that they complete and submit a pre-hearing information form with details of their availability for a hearing.

23. On 8 August 2024 the first named applicant provided the Tribunal with an online hearing information form. He did not indicate any dates that he was unavailable for a hearing. On 9 August 2024 the first named applicant’s former wife, who had a related matter before the Tribunal, and within which the second named applicant was also included as a secondary applicant, submitted a pre-hearing information form within which she outlined [a medical condition impacting on her availability].  

24. The Tribunal considered the applicants’ circumstances, and the related matter, and determined that it was preferable and reasonable to delay listing a hearing in the applicants’ matter [for a time period], so that the related matters could be heard within a similar timeframe.  

25. The first named applicant appeared before the Tribunal on 4 November 2024 to give evidence and present arguments. The second named applicant did not appear given he is a minor. The first named applicant gave evidence and made submissions on his behalf. No witnesses were called to give evidence in support of the applicants’ claims. The applicants were not represented in relation to the review.

26. The hearing was conducted with the assistance of an interpreter in the Georgian and English languages via videoconference. The Tribunal confirmed with the first named applicant they were able to understand the interpreter. The first named applicant speaks some English and did not always require the interpreter. The first named applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.

27. The Tribunal is satisfied that the applicants had a reasonable and genuine opportunity to present evidence and submissions, be heard, and participate fully in the hearing. Where relevant, the first named applicant’s oral evidence to the Tribunal in respect of his claims and those of the second named applicant is referred to in the analysis below.

    Post-hearing evidence

28. On 10 December 2024 the first named applicant provided the Tribunal with the following news articles:

    ·     ‘Georgian election chief doused with paint’, BBC News, 17 November 2024.

    ·     ‘Unrest in Georgia after government suspends EU accession talks’, The Guardian, undated.

    ·     ‘Fireworks fired at police during Georgia protests’, BBC, undated.

    ·     ‘BBC reports from mass protest at “crucial moment for Georgia”’, BBC, undated.

    ·     ‘Parliament calls for new elections in Georgia’, European Parliament News, 28 November 2024.

    ·     ‘Georgia at “tipping point” as pro-West protesters clash with security forces’, ABC News, undated.

    ·     ‘Georgia president calls on Georgians to protest “falsified” election result’, BBC, 29 October 2024.

    ·     ‘Georgia’s pro-EU president vows to stay “until someone is legitimately elected”, BBC, undated.

    ·     ‘Police disperse crowds with force in third straight day of protests in Georgia-video’, The Guardian, undated.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

29. 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.

30. 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.

31. 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).

32. 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.

33. 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

34. 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.

    REASONS AND FINDINGS

35. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.

    Nationality

36. The first named applicant claims to be a citizen of Georgia and provided a copy of the bio-data page of his Georgian passport to the Department. The delegate was satisfied that the first named applicant is using his own identity and that he is a citizen of Georgia. The first named applicant has consistently claimed to be a citizen of Georgia. In the absence of evidence to the contrary, the Tribunal accepts this and finds the first named applicant is a citizen of Georgia and Georgia is his receiving country for the purposes of assessing his claims for protection.

1. The second named applicant was born in Australia. A NSW Birth Certificate has been provided to the Department confirming his identity details and that his parents are both Georgian citizens. Georgian citizenship is assigned to a person at whose birth one of his or her parents are a Georgian citizen[1]. The delegate was satisfied that the second named applicant acquired Georgian citizenship at birth. In the absence of evidence to the contrary, the Tribunal accepts this and finds the second named applicant is a citizen of Georgia and Georgia is his receiving country for the purposes of assessing his claims for protection.

   [1] Organic Law of Georgia on Georgian Citizenship, accessed at on 1 November 2024.

   Analysis, reasons and findings

2. At hearing the Tribunal discussed with the first named applicant his protection claims, why he fears returning to Georgia, what happened to him and his former wife in Georgia, and his family, residential, employment, and personal history. The Tribunal found him to be a credible witness who provided straight-forward and internally consistent evidence in support of his claims.

3. He claimed he would be harmed on return to Georgia by [Officer A], a high-ranking Georgian official, who had harmed him whilst he was in Georgia, in connection to his former wife’s position as the [Position 1] of the [Town 1] [Election Authority 1]. He claimed he would be harmed by [Officer A], the Georgian Dream party, and Georgian authorities like he was before as the party remains in power, the people he was in conflict with are very close to the government, and he had refused on multiple occasions to comply with the demands of the Georgian Dream party members and authorities in relation to instances of election fraud. He stated the second named applicant would not face any danger except in relation to his and his ex-wife’s circumstances.

   Personal background and family circumstances

4. The first named applicant outlined at hearing that he was born in [Town 1], and that he grew up with his mother, father and [a sibling] there. He detailed how his parents remain living in [Town 1] and that his [sibling] is living in [Country 1]. The Tribunal accepts the first named applicant’s family worked in agriculture and that he was a farmer whilst residing in Georgia.

5. The first named applicant explained after marrying his former wife he resided in [Town 1] and Tbilisi as his wife’s family had property in Tbilisi and he had some land in [Town 1] and was [farming] there. The first named applicant explained he had a house on his farmland in [Town 1] that he stayed in. The Tribunal accepts the first named applicant moved between Tbilisi and [Town 1] in the years after he married and before he came to Australia, and that during the election periods in Georgia he and his wife were largely in [Town 1] as his wife needed to be working a lot.

6. The Tribunal accepts the first named applicant and his wife are now divorced. Corroborative evidence before the Tribunal confirms the first named applicant and his wife divorced [in] December 2021.

7. The first named applicant explained whilst in Australia he has worked in [various specified] work. He explained, and the Tribunal accepts, that he rents accommodation for his ex-wife and his children and that he resides with friends.

8. Information before the Tribunal confirms the second named applicant was born [in specified year], and that the first named applicant’s second child was also born [in specified year]. A NSW Birth Certificate before the Tribunal in respect of the second named applicant names the first named applicant as his father.  

   Claims relating to harm from [Officer A] and the Georgian authorities

9. At hearing the first named applicant explained he fears on return to Georgia that he will continue to be harmed by [Officer A] and the Georgian authorities owing to his wife’s former employment with the [Town 1] [Election Authority 1] and his own defiance of the Georgian Dream party and the authorities who continue to hold power in Georgia.

10. The first named applicant explained his wife was the [Position 1] of the [Election Authority 1] in [Town 1] and the people like [Officer A] who worked for the government in power wanted people on their side and wanted to win the election and to get a good result for the Georgian Dream party. He outlined how in 2017 the local elections took place and how because his ex-wife was the [Position 1] of the [local election authority] a lot of things depended on her. He stated he was asked to go to the police station by [Officer A] where he was told that he had to influence his ex-wife and use his influence to get her to do whatever they wanted her to do and to get her to obey them in relation to the elections.

11. The first named applicant explained he refused at the police station to comply with the demands of [Officer A], the police, and the authorities. He outlined how he was told to think about it and that he should speak to his wife at that time. He explained he did not tell his ex-wife at the time about the conversation at the police station as he was worried about it and didn’t want to worry her.

12. In discussing with the first named applicant when the meeting at the police station occurred, he explained he was contacted on the phone [in] September 2017. He stated everyone knows everyone in [Town 1] as it’s a very small regional area of Georgia and he was told to go to the police station on that call and then officially given an order in a document to go on [a day in] September 2017 to the police station.

13. The first named applicant provided the Tribunal before the hearing with a certificated translation of a summons document from Georgia issued [in] September 2017. That document requires the first named applicant to attend the police station on [the day in] September 2017 at [time] for the purpose of investigative actions concerning a criminal case. It is noted the first named applicant has been summonsed as a witness for questioning. The Tribunal raised with the first named applicant that the summons document refers to the first named applicant having to appear for the purpose of investigative actions concerning a criminal case. He explained there was no criminal case and that was used to officially ask him to go to the police station. When asked why he was issued with the summons, he stated it was issued to scare him.

14. In detailing what occurred at the police station on [the day in] September 2017 in more detail, the first named applicant stated [Officer A] was present as well as some other people from the authorities. The first named applicant explained [Officer A] was the head of the police in [Town 1], although after that he moved and was appointed to a higher position as the [Position 2] of the police overseeing [Region 1]. His evidence was consistent with that of his former wife as to the role [Officer A] held in Georgia and his subsequent appointment to a new and higher position in [Region 1]. He stated at the time he went to the police station to meet [Officer A] he had already left his position as the [Town 1] head of police and had moved to his new position. He stated he was asked at the station to influence his wife and get her to obey with what they wanted, but he knew that was unacceptable and that his ex-wife wouldn’t do it anyway.

15. The first named applicant detailed how he was contacted on the phone directly by [Officer A] a few days after the meeting at the police station, where he had been given a few days to think about the request in relation to his wife. He stated [Officer A] asked him on that call to meet him at a [location 1] in [Town 1]. He outlined [Town 1] has a small town centre, with the police station, restaurants, shop, school, and hospital all close together. He explained he did go and meet [Officer A], who was with a group of other people, and that they had been drinking. He stated they told him again that he needed to influence his wife in relation to the elections. In exploring with the first named applicant in more detail what the specific request of him involved, he explained they wanted him to get his ex-wife to be silent during the elections and enable the party to put guillotines in the vote box and win that way.

16. In detailing what occurred at the meeting at the [location 1], the first named applicant explained he was insulted, sworn at, then [Officer A] and the three other people there started to beat him up and he eventually fell down and [sustained an injury 1]. He stated one of the policemen took him to the [named] Hospital in [Town 1] and he was warned by that policeman not to say anything. He stated the policeman took him in his car by himself to the hospital, where he was then placed on a ward, had some X-rays taken, and was looked after by doctors. Corroborative evidence provided by the applicant in the way of a certified medical report from the [Town 1] hospital indicates the applicant was admitted to the hospital [in] September 2017 with [specified symptoms], and an [injury 1].

17. The Tribunal explored with the applicant whether he was targeted or harmed in any way after the incident at the [location 1] or by anyone else. He stated he had no issues with any other people, and only [Officer A] and his associates. He described being released from the hospital and being on the road not too long after when [Officer A] stopped his car and came at him with a gun and threatened him. He explained how [Officer A] threatened him to transfer his farmland officially into [Officer A’s] name. The first named applicant explained his land is in a very good space and large and near the roadside so it was a commercially attractive space that something could be built on. He detailed how he did not believe [Officer A] really wanted his land or had any interest in it, and how he was using it as a threat to make him scared and frightened.

18. The first named applicant stated how [Officer A] had threatened him that [he had suffered injury 1] and if he would not agree with their demands in relation to the elections and what they were asking next he would lose his land and he was capable of doing anything he wanted. The first named applicant explained [Officer A] had threatened him that if he did not obey, he would be in even more trouble. He detailed in his evidence he had received death threats. In discussing why he believes he was a target of harm of [Officer A] and the authorities the first named applicant explained [Officer A] was in power and that the Georgian Dream party wanted to stay in power and that he is a political fanatic.

19. The Tribunal explored with the first named applicant where [Officer A] is currently based and why he would remain a target of harm now, given the elections occurred in 2017. It raised its concern with the applicant that it may find on the basis of his evidence and given the passage of time that he and the second named applicant would not face a real chance of serious or significant harm on return to Georgia in the reasonably foreseeable future. He stated he is not sure where [Officer A] is specifically but he is aware he is the [Position 2] of police in the [Region 1] but that he is still in [Town 1] as his wife is from [Town 1]. He explained people like [Officer A] always go up in power when they work for the government. He described having seen [Officer A] on Georgian television and being aware he was still working in the government. The first named applicant confirmed [Officer A] has not had any contact with his own family in [Town 1] and that he has not attempted to take his farmland that he still owns in [Town 1].

20. As to why he would remain a target of harm, he stated the same people are in Georgia and the same issues are occurring and he is not certain what they may do next. He explained [Officer A] is a highly political person with a lot of power and he cannot be trusted. He detailed if the police [Position 2] is willing to threaten him with a gun and come at him and do what he did to him he is not sure what he is capable of doing next. The first named applicant explained his fear of harm on return to Georgia in connection to the recent elections in Georgia and the recent allegations of election fraud against the Georgian Dream party.

21. The Tribunal had some initial concerns about the limited details the first named applicant and his former wife provided about their claims for protection in their protection visa application. The first named applicant only recently provided the Tribunal with supporting evidence in relation to his contact with the authorities in Georgia and his hospitalisation. At hearing he provided a candid and straight-forward explanation as to why he had not detailed his claims in his written application. He explained when his former wife and he arrived in Australia they did not put an extensive protection visa application into the Department as they were told to give a little bit of information and they would have the chance to explain everything at an interview with an interpreter. He stated his wife was under tremendous stress at that time and could not even talk to him and they never even really talked about it and were struggling to speak about what happened. He explained although they had a Georgian interpreter to submit their initial written claims, that interpreter was struggling with Georgian words. The Tribunal acknowledges the first named applicant wrote a letter with his protection visa application outlining his claims were brief owing to interpreter limitations and that he would be able to expand on his claims at an interview. The first named applicant’s evidence across the hearing was internally consistent with his written claims throughout the process and his supporting documentation. Given the factors above the Tribunal finds there is a reasonable and genuine explanation why the first named applicant’s written claims were so brief and why he was able to expand in detail on his claims at hearing.

22. The Tribunal considered the first named applicant’s evidence throughout the process and his responses to its concerns. The Tribunal found his evidence to be internally consistent, without apparent embellishment or exaggeration, and corroborated by supporting written documentation. The Tribunal accepts the first named was a farmer in [Town 1] and that he and his then wife travelled regularly between Tbilisi and [Town 1]. The Tribunal accepts the first named applicant was called on the phone [in] September 2017 and asked to attend the [Town 1] police station to give evidence. The Tribunal accepts he was issued [in] September 2017 with a formal summons to appear at the police station on [a later day in] September 2017, under the pretence to discuss a criminal matter as a witness. The Tribunal accepts the first named applicant appeared at the police station on [that day] and that he was asked by [Officer A] and his associates to influence his wife and get her to obey with what they wanted in relation to election violations. The Tribunal accepts the first named applicant was contacted by [Officer A] on the phone a few days later and that he then met him and his associates at a [location 1] a few days after that in [Town 1] where he was again told he needed to influence his wife in relation to the elections, and when he refused, that he was insulted, sworn at, and beaten.

23. The Tribunal accepts the first named applicant was hospitalised following the beating and that he suffered [specified symptoms], and an [injury 1]. The Tribunal accepts the first named applicant was threatened by [Officer A] following his release from hospital, where [Officer A] came at him with a gun and threatened him with the forced transfer of his land and further harm. The Tribunal accepts the first named applicant’s land was not forcibly acquired and that he still owns that land in [Town 1].

24. In detailing his former wife’s issues in Georgia and her role as the [Position 1] at the [Town 1] [Election Authority 1] the first named applicant provided brief details, explaining his wife needed to obey what [Officer A] and the police wanted and get a good result for the government. In her related matter before the Tribunal the first named applicant’s wife provided detailed, persuasive, and personal details about her [Position 1] role and the election violations she witnessed in Georgia and the threats, surveillance and harm she experienced there. In that matter the Tribunal was satisfied that the first named applicant’s former wife was the appointed [Town 1] [Election Authority 1] [Position 1] from [date] until hers and the first named applicant’s departure from the country in February 2018. Corroborating evidence before the Tribunal includes the first named applicant’s former wife’s Georgian Election card and a letter from [Election Authority 1] confirming her employment and position details. The Tribunal has also accepted the first named applicant’s wife witnessed and facilitated voter and election fraud in her position as [Position 1], that she was pressured and threatened by [Officer A] and members of the police and State Security Service in an attempt to influence her in her position as [Position 1] of the [Election Authority 1] and maintain her silence regarding election fraud, that she was followed by members of the State Security Service, and that her phone calls were monitored. Accordingly, the Tribunal is satisfied of these events in relation to the applicants’ application before the Tribunal.

25. Whilst the first named applicant stated at hearing that he had not been threatened since leaving Georgia, in his ex-wife’s related matter before the Tribunal the Tribunal has accepted [Officer A] has asked after the first named applicant’s wife and her family whilst she has been in Australia, including in the last twelve months, and that he has threatened the first named applicant’s former wife and her family on their return to Georgia, stating that they will not be in a good position. The first named applicant’s ex-wife provided evidence that whilst in Georgia she was threatened that her ex-husband would have drugs planted on him if she did not comply with the party’s wishes. The Tribunal accepts the first named applicant’s ex-wife has received threats that concern him and the second named applicant since his arrival in Australia, including in the last twelve months, and that his ex-wife was threatened in Georgia that he would be framed with drugs if she did not comply with their demands in relation to election fraud.

    Do the applicants satisfy the refugee criterion for protection?

26. The first named applicant claims if he and the second named applicant return to Georgia, they will be targeted by [Officer A], the police, and members of the Georgian Dream party in relation to his wife’s former work as the [Position 1] of the [Town 1] [Election Authority 1] and his decision not to influence her in relation to election violations and election fraud in Georgia.

27. The Tribunal has accepted the first named applicant was a farmer in [Town 1], that he and his then wife travelled regularly between Tbilisi and [Town 1], and that his former wife was the appointed [Town 1] [Election Authority 1] [Position 1] from [date] until their departure from Georgia for Australia in February 2018. The Tribunal has accepted the first named applicant was called on the phone [in] September 2017 and asked to attend the [Town 1] police station to give evidence. The Tribunal has accepted he was issued with a formal summons to appear at the police station, under the pretence to discuss a criminal matter, that he appeared at the police station on [the day in] September 2017, and that he was asked by [Officer A] and his associates to influence his wife and get her to obey with what they wanted. The Tribunal has accepted the first named applicant was contacted by [Officer A] on the phone a few days later and that he then met him and his associates at a [location 1] a few days after that in [Town 1] where he was again told he needed to influence his wife in relation to the elections, and when he refused, that he was insulted, sworn at, and beaten. The Tribunal has accepted he was hospitalised following the beating and that he suffered [specified symptoms], and an [injury 1]. The Tribunal has accepted the first named applicant was threatened by [Officer A] following his release from hospital, where [Officer A] came at him with a gun and threatened him with the forced transfer of his land and further harm, but that his land was not forcibly acquired from him at any time.

1. The Tribunal has also accepted the first named applicant’s wife witnessed and facilitated voter and election fraud in her position as [Position 1], that she was pressured and threatened by [Officer A] and members of the police and State Security Service in an attempt to influence her in her position as [Position 1] of the [Election Authority 1] and maintain her silence regarding election fraud, that she was followed by members of the State Security Service, and that her phone calls were monitored. The Tribunal has accepted the first named applicant’s ex-wife has received threats that concern him and the second named applicant since his arrival in Australia, including in the last twelve months, and that his ex-wife was threatened in Georgia that he would be framed with drugs if she did not comply with their demands in relation to election fraud.

2. At hearing the first named applicant indicated it would not be safe for him to return anywhere in Georgia. When the Tribunal raised with him that it may find he would return to [Town 1] he stated he knows he has land there but he does not believe he would be safe. He stated he would consider somewhere else to return to but not Georgia. Given the first named applicant has family in [Town 1], land in [Town 1], and he grew up in that area, the Tribunal finds it is likely he would return to Georgia to [Town 1] where he has a home and land and that he and the second named applicant would also likely return to Tbilisi where the second named applicant has extended family on his maternal side of the family.

   First named applicant

3. The Tribunal has considered the findings above, and having regard to the findings above, its assessment of the first named applicant’s future conduct in Georgia and relevant country information as raised below, the Tribunal is satisfied there is a real chance that the first named applicant will suffer serious harm upon return to Georgia in the reasonably foreseeable future.

4. To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.

5. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.

6. The Tribunal has accepted the first named applicant and his wife were subject to threats and intimidation whilst in Georgia on account of the first named applicant’s ex-wife’s role as the [Position 1] of the [Town 1] [Election Authority 1] and that the first named applicant was physically harmed and hospitalised when he refused to comply with the demands of the Georgian Dream government and [Officer A] to influence his wife in relation to election violations.

7. The country information before the Tribunal indicates government corruption in Georgia is wide-reaching, including within the authorities. In 2023 there were reports of high-level government corruption, with weak checks and balances and a lack of independence of law enforcement agencies among the factors contributing to allegations of high-level corruption[2]. Government officials are reportedly not held accountable for violence and harassment[3]. Successful cases against high-raking officials and those close to them are reported to be rare[4].

   [2] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

   [3] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

   [4] Freedom House, Freedom in the World 2024: Georgia.

8. Elections violations are a politically sensitive issue in Georgia. National elections in Georgia are reported to be competitive but lacking important components of fairness. The Office for Democratic Institutions and Human Rights Election Observation Mission Final Report of 8 April 2022, commenting on the 2 and 30 October 2021 elections, reported that overall fundamental freedoms were respected, although there were allegations of intimidation, vote-buying, pressure on candidates and voters, and an unlevel playing field[5]. It is stated in that report that trust in the impartiality of [local] [Election Authority 1s] continued to be low due to the procedure for the election and appointment of their members, the alleged influence of the ruling party on the commission, and the handling of post-election complaints by [local] [Election Authority 1s]. They reported of the 2017 Parliamentary elections that the majority of opposition contestants raised concerns that election results were impacted by the misuse of administrative resources and pressure on voters from the ruling party, with results challenged across several hundred polling stations across the country owing to alleged irregularities[6].

   [5] Office for Democratic Institutions and Human Rights, Georgia Local Elections 2 and 30 October 2021, ODIHR Election Observation Mission Final Report, 8 April 2022.

   [6] Office for Democratic Institutions and Human Rights, Georgia Local Elections, Second Round 12 November 2017, Election Observation Mission, undated and access at on 1 November 2024.

9. The United States Department of State report of credible domestic civil society organisations deploying at the Georgian parliamentary elections in 2020 approximately 3,000 election observers across the country, alleging misuse of administrative resources by the ruling party, voter intimidation, vote buying, violations of ballet secrecy, obstruction of journalists and domestic election observers, and inaccurate and altered vote tabulation at the precinct and district level[7]. They report domestic organisations submitted hundreds of electoral complaints and were highly critical of the [Election Authority 1’s] management of the election. Missing ballots were reported with allocations of widespread carousel voting[8]. Freedom House have reported instances of abuse of administrative resources, vote buying, ballot-box stuffing, and Georgian Dream intimidation outside voting stations being reported[9]. In 2017 the United States Department of State reported allegations the Georgian Dream party colluded with the [Election Authority 1] to stack district and [local Election Authority 1s] with Georgian Dream supporters and allegations of intimidation of state employees to vote for the ruling party or not to vote, dismissal threats, and threats where support was expressed for the opposition[10].

   [7] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

   [8] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

   [9] Freedom House, Freedom in the World 2024: Georgia.

   [10] United States Department of State, 2018 Country Reports on Human Rights Practices: Georgia.

10. The October 2024 Georgian elections have been alleged to be impacted by mass vote-rigging, violence, and falsification of the results, with calls by the US and European Union for an independent investigation[11]. There are reports some exit polls showed the opposition ahead[12]. There have been allegations the Georgian Dream used call centres to monitor and pressure voters, employed bogus observers, and confiscated voters’ IDs in exchange for money to cast fraudulent votes[13]. The Georgian President has declared that the country’s disputed parliamentary election was fraudulent, with the Georgian Dream claiming a stolen victory[14]. [Details deleted.][15].

    [11] ‘Georgian PM rejects vote-rigging claims in BBC interview as president calls mass rally’, BBC, 28 October 2024.

    [12] ‘Experts React: Georgia just concluded a contested election, with the country’s future at stake. Now what?’, Atlantic Council, 27 October 2024;

    [13] ‘Georgian Dream accused of using call centres to monitor and pressure voters’, OC Media, 3 November 2024.

    [14] ‘Georgian election: MEPs to demand irregularities to be addressed’, European Parliament News, 21 November 2024.

    [15] [Source deleted.]

11. Government critics and opponents of the Georgian Dream party are reported to be subject to surveillance and government control. Surveillance takes place in public and private settings[16]. In 2021 the State Security Service was revealed to have engaged in widespread surveillance of journalists, activists, clergy, and politicians, with multiple involved individuals later confirming the authenticity of leaked conversations[17]. It is reported there is widespread arbitrary and unlawful interference with privacy, family, home, and correspondence in Georgia. Concerns have been raised about the State Security Service’s secret surveillance system and its lack of political neutrality and weak oversight[18]. In 2022 parliament passed controversial amendments expanding the government’s ability to conduct covert investigative measures[19]. There are reports the government illegally surveyed journalists and instances where the government restricted public figures, political opponents, and journalists from criticising the government or discussing matters of public interest[20].

    [16] United Kingdom, Country policy and information note: Political parties and affiliation, Georgia, September 2024.

    [17] Freedom House, Freedom in the World 2024: Georgia.

    [18] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

    [19] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

    [20] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

12. The police have reportedly maintained a practice of summonsing individuals to appear before them at the police station as witnesses and later arrested them[21]. Authorities reportedly used administrative detention to hold individuals for up to fifteen days without the right to an effective defence, or the right to a meaningful appeal, with violations of due process occurring as a result of the government’s use of administrative arrests[22]. Although the constitution and law prohibit arbitrary arrest and detention and for the right for a person to challenge the lawfulness of his or her arrest in court, it is reported the government’s observance of these prohibitions was uneven and selective and arbitrary arrests continued[23]. The use of excessive force and physical and psychological violence was reportedly particularly problematic in cases of administrative arrest[24]. It is reported court rulings on administrative offenses are often based solely on the testimonies of police officers and disregard fair trial norms[25].

    [21] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

    [22] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

    [23] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

    [24] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

    [25] Human Rights Watch, World Report 2024: Georgia.

13. There are reports of an increase of violence and attacks against activities in opposition to the government, with concerns raised the country’s ruling force may be resorting to violence to silence its critics. It was reported critics of the government were attacked or threatened by individuals or violent groups, believed to be incited and orchestrated by the authorities in an attempt to stigmatise and intimidate opponents[26]. Freedom House report in 2023 a number of opposition figures were beaten or shot at during the year, with other instances of legal harassment, intimidation, and physical violence against opposition parties[27]. They report instances of a UNM councillor being attacked on the street, opposition figures being fired at in separate instances, an activist being shot at and wounded by the Georgian Dream party, and a former mayor of a municipality having gunshots fired at his car, reportedly by Georgian Dream members[28]. There are allegations of State Security Service involvement in attacks on government critics, suggestive of potential state involvement[29]. Civil society actors have reported increased threats, smears and harassment for criticizing the government, as well as risks to physical safety, with at least six government critics reportedly being subjected to physical attacks that appeared coordinated[30]. There are reports of verbal intimidation, threats towards activists and their family members, physical attacks, and campaigns against civil society actors through slander accusing them as enemies of the nation and of committing treason[31]. In October 2024 there were reports of searches of opposition party offices and activists’ homes[32].

    [26] ‘Georgian government accused of promoting political violence’, EurasiaNet, 22 June 2023.

    [27] Freedom House, Freedom in the World 2024: Georgia.

    [28] Freedom House, Freedom in the World 2024: Georgia.

    [29] Human Rights Watch, World Report 2024: Georgia.

    [30] Amnesty International, The State of the World’s Human Rights: Georgia, 177.

    [31] ‘Civil society and democracy under attack in Georgia’, Kvinna Kvinna, 31 May 2024.

    [32] ‘Thousands rally in Georgia after police raid opposition offices’, The Australian, 5 December 2024.

14. The Tribunal considered the first named applicant’s evidence and claims in the context of the country information outlined above. The first named applicant was subject to threats, intimidation, harassment, and physical harm from [Officer A] and the Georgian authorities when in Georgia, to the extent he was hospitalised with a [significant injury] and [an injury 1]. The first named applicant’s ex-wife gave evidence in her related matter that she was threatened that the first named applicant would have drugs planted on him if she did not comply with election violations. He was privy to the election violations and intimidation tactics undertaken by the Georgian Dream party to secure election victories in 2016 and 2017 and demonstrated to that party and the Georgian government his unwillingness to comply with their political demands and to influence his then wife in relation to voter fraud.

15. The Tribunal accepts the first named applicant is known by [Officer A] and members of the Georgian Dream party and authorities to be in opposition to the actions of the government. The first named applicant’s experiences in Georgia, in being summonsed to appear at the police station to give evidence as a witness, and the subsequent harassment and violence he experienced when he would not agree to the demands of the Georgian Dream party, is consistent with the country information outlined above. The Tribunal finds the first named applicant would be returning to Georgia in circumstances where the Georgian Dream party are under particular scrutiny and public pressure in relation to allegations of election fraud, and where the country information supports they have enacted a targeted campaign to silence critics of their government.

16. In circumstances where the first named applicant and his ex-wife hold sensitive information about elections violations that occurred in Georgia in the past under the Georgian Dream’s governance, as well as details and evidence of the threats and harm that occurred in [Town 1] in relation to attempts to orchestrate election results and outcomes, the Tribunal finds it is not a remote possibility that the first named applicant would remain a target of harm from [Officer A] and the Georgian authorities on return to Georgia in an attempt to silence him and as a consequence of his clear defiance of the Georgian Dream government.

17. Whilst in Australia, [Officer A] has continued to ask about the first named applicant’s former wife and has threatened both her and her family on return to Georgia. Whilst the first named applicant and his wife have divorced, the Tribunal accepts given they have two young children together whom they both care for that they are significantly involved in each other’s lives and would be perceived by the Georgian officials and [Officer A] to continue to be able to exert influence over each other. Notwithstanding the first name applicant’s divorce from his ex-wife, the Tribunal finds he has himself acted in defiance of the Georgian government, holds sensitive information about the Georgian government, and has been subject to threats of harm both in Georgia and in Australia in relation to his unwillingness to comply with the demands of the Georgian government.

18. The Tribunal is satisfied on the evidence before it that the first named applicant was in direct conflict with the Georgian authorities and [Officer A] in Georgia as a result of his refusal to comply with their election violation requests and on account of his imputed political opinion. Considering the extent to which the first named applicant was harmed in Georgia in the past, the information he holds about elections violations that occurred in Georgia and the threats and harm that were enacted on him to influence his then wife as [Position 1], the current threats made by [Officer A] about his family, and the country information referred to above regarding the current political landscape in Georgia, the Tribunal is satisfied the first named applicant would be of interest to [Officer A] and the Georgian authorities on return to Georgia. The Tribunal finds the degree to which election violations are a controversial and sensitive issue in Georgia, and the extent to which opponents of the Government are subject to violence, surveillance, and harassment, increases the level at which the first named applicant would remain a target of [Officer A] and the authorities on his return to Georgia despite the passage of time since his departure from the country.

19. Considering the factors outlined above and the country information referred to above, and in particular the extent to which the first named applicant was harmed by the authorities whilst in Georgia and the country information as it relates to administrative arrests, government corruption, and the situation in Georgia for critics of the government, the Tribunal is prepared to accept there is a real chance the first named applicant will be persecuted by [Officer A], the Georgian authorities, and members of the Georgian Dream party on return to Georgia in the reasonably foreseeable future.

20. The Tribunal finds the first named applicant will be subject to threats, harassment, physical violence, police questioning, administrative arrest, and detention. The Tribunal accepts this harm includes significant physical harassment and significant physical ill-treatment and that it amounts to serious harm in accordance with s 5J(4)(b) of the Act.

21. The Tribunal accepts the harm will be directed at the first named applicant for reason of his imputed or perceived political opinion as an opponent of the Georgian Dream party and the Georgian government and that this is the essential and significant reason for the persecution: s 5J(1)(a) and s 5J(4)(a). The first named applicant stated he was not a member of any political groups or party in Georgia. The Tribunal accepts there is no requirement under the Act that the political opinion for which a person will be harmed be one that is actually held by the person, that the person be a member of a political party or other public organisation[33], and that it is sufficient that the opinion is imputed to him or her by the persecutor[34]. 

    [33] V v MIMA (1999) 92 FCR 355 at 363.

    [34] Saliba v MIMA (1998) 89 FCR 38 at 49.

22. The Tribunal is satisfied that the harm the first named applicant fears from [Officer A] and the Georgian authorities is systematic and discriminatory conduct in accordance with s 5J(4)(c) of the Act. The persecution is deliberate, non-random, and intentionally directed at the first named applicant as an attempt to control and silence him, and in retaliation for his defiance of the Georgian Dream party.

1. In accordance with s 5J(2) of the Act, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. Section 5LA(2) provides a relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

2. As outlined above, the country information before the Tribunal indicates Georgia experiences high-level government corruption and a lack of independence of law enforcement. Government officials are reportedly not held accountable for violence and harassment[35] and successful cases against high-raking officials and those close to them are reported to be rare[36]. It is reported judges are vulnerable to political pressure from within and outside the judiciary on cases involving politically sensitive subjects or individuals[37]. There are reports of selective judicial justice and politically motivated prosecutions[38]. In this context the Tribunal is satisfied that effective protection measures in relation to the harm the first named applicant fears from [Officer A] and the Georgian authorities would not be provided to him by the Georgian State. The harm the first named applicant fears is from Government officials and the authorities. Accordingly, the Tribunal finds the Georgian authorities are not willing to offer effective protection and that effective state protection is not available to the first named applicant in Georgia.  

   [35] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

   [36] Freedom House, Freedom in the World 2024: Georgia.

   [37] United States Department of State, 2023 Country Reports on Human Rights Practices: Georgia.

   [38] Amnesty International, The State of the World’s Human Rights: Georgia, 177.

3. Section 5J(1)(c) of the Act provides the real chance of persecution must relate to all areas of the receiving country. The Tribunal accepts that the Georgian Dream is a national party and the Georgian authorities and police are controlled by the Georgian government. Georgia is a relatively small country of 4.9 million people[39]. The first named applicant lived in Georgia in [Town 1] and Tbilisi. The Tribunal accepts he would be well known amongst the Georgian officials, Georgian party members, and authorities in Tbilisi and [Town 1] given his past conduct with the officials in Georgia and the harm he experienced there. The Tribunal accepts the first named applicant, if returning to an area in Georgia other than [Town 1], will need to establish housing and connect with essential services. He will need to commence employment to secure an income and subsist. The Tribunal is prepared to accept in seeking housing, employment, establishing community connections, and necessarily having to interact with government services and the authorities in re-establishing himself on return to Georgia that he is likely to come to the attention of the Georgian authorities and through his connection with them, [Officer A], wherever he resides in Georgia. [Officer A] has maintained an interest in the first named applicant’s wife and by extension the first named applicant since their departure from Georgia and as recently as the last year. In these circumstances the Tribunal is prepared to accept the first named applicant faces a real chance of serious harm in all areas of Georgia.

   [39] CIA, The World Factbook: Georgia.

4. The Tribunal finds the first named applicant is unable to take reasonable steps to modify his behaviour on return to Georgia to avoid a real chance of persecution in respect of his imputed political opinion.

5. The Tribunal finds that the first named applicant is outside the country of his nationality, and owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5H(1) of the Act.

6. As the first named applicant meets the definition in s 5H(1), the Tribunal is satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Second named applicant

7. The first named applicant explained to the Tribunal that the second named applicant did not have any claims of his own on return to Georgia, and that his claims derive from his own claims and those of his mother. In her related matter before the Tribunal the first named applicant’s former wife explained she believed the second named applicant would be pressured on return to Georgia and his life impacted as he grew up. She stated she was uncertain what [Officer A] was capable of doing given his threats towards her and her family on return to Georgia.

8. The second named applicant is a minor. He was not present in Georgia during the election violations and has no knowledge of them. He has limited if any capacity to influence his mother and the first named applicant. The Tribunal finds whilst threats have been made about the first named applicant’s ex-wife’s family, this is a general threat and does not contain any specificity as to the second named applicant. The country information referred to above indicates widescale threats and harm are directed at critics of the government, and that threats extend to family members, although does not suggest a pattern of targeted attacks are made on the children of activists and government critics in attempts to force silence or as a retaliatory measure. 

9. On the evidence before it, whilst the Tribunal accepts [Officer A] has made recent threats against the first named applicant’s wife that her family would not be in a good position on return to Georgia, the Tribunal finds the second named applicant does not himself face a real chance of serious harm or a real risk of significant harm on return to Georgia in the reasonably foreseeable future. The Tribunal finds that the threats issued by [Officer A] against the second named applicant do not in and of themselves amount to serious harm in accordance with s 5J(4)(b) of the Act or significant harm in accordance with s 36(2A) of the Act.

10. The Tribunal has found, as outlined above, that the first named applicant meets the definition of refugee in s 5H(1), and that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

11. Having found the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a), the Tribunal has considered the second named applicant’s circumstances as a member of the same family unit of the first named applicant.

12. Section 5(1) of the Act provides a definition of ‘member of the same family unit’. It states one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) further outlines that ‘member of the family unit’ has the meaning given by the Regulations. Regulation 1.12 prescribes that a person is a member of the family unit of the other person, the ‘family head’, including if the person is a child of the family head (other than a child who is engaged to be married or has a spouse or de facto partner), and that person has not turned eighteen. 

13. The second named applicant is the child of the first named applicant. A NSW Birth Certificate before the Tribunal for the second named applicant indicates the first named applicant is named as the second named applicant’s father. 

14. The Tribunal is satisfied that the second named applicant is a member of the same family unit of the first named applicant. Given the Tribunal’s findings above, the Tribunal is therefore satisfied the second named applicant is a member of the same family unit as a person who satisfies s 36(2)(a).

    Do the applicants have a right to enter and reside in a third country?

100.   On the evidence before it, the Tribunal finds s 36(3) does not apply. The applicants do not have a right to enter and reside in a third country.

Conclusion

101.   For the reasons given above, the Tribunal is satisfied that:

i.the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

ii.the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

DECISION

102.   The Tribunal sets aside the decision under review and remits the applications for protection visas for reconsideration, in accordance with the orders that:

i.the first named applicant meets s 36(2)(a) of the Migration Act.

ii.the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Date of hearing: 4 November 2024

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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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