BLF16 v Minister for Immigration

[2019] FCCA 1503

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLF16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1503

Catchwords:
MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether the Tribunal failed to assess an integer of the Applicant’s claims.

Applicant: BLF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1492 of 2016

Judgment of: Judge Barnes

Hearing date: 28 June 2018

Delivered at: Sydney

Delivered on: 4 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1492 of 2016

BLF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 May 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Georgia, arrived in Australia in November 2013 as the holder of a tourist visa.  He applied for a protection visa in December 2013.  

3. In a statutory declaration of 9 December 2013 provided in support of his protection visa application, the Applicant claimed to fear harm in Georgia on the basis of his political opinion.  He claimed that after Russia invaded Georgia in 2008 he had joined the National Party (the United National Movement Party, referred to as the UNM) and started to work for it on a volunteer basis, including helping it prepare for elections. 

4. He claimed that in November 2012 (after the UNM lost the 2012 election) he was abducted, beaten and threatened by three people who told him that he had to resign from the UNM and that if he did not do so they would continue to oppress him.  He claimed that he had spent a week in hospital recovering from the beating and that subsequently “these people” made  further telephone threats to him about three or four times a week for about three weeks.

5. The Applicant claimed he went back to work for the UNM in about February 2013, but continued to receive telephone threats.  He claimed that in March 2013 police had searched his home and “found” a gun they had planted.  He claimed he was imprisoned for two weeks, but was released after he promised he would stop working for the UNM and his parents sold their house so he could pay a large amount for bail.  He claimed he had agreed because he had no choice and that he had to give the police his UNM membership card.

6. The Applicant claimed that thereafter the police had called him and checked his whereabouts every week.  He claimed that despite this, he decided to return to his job at the UNM and applied for a new membership card, which was issued on 18 October 2013.  He claimed that he worked in the presidential election campaign, but that after the UNM lost the October 2013 election he became fearful for his safety.  He claimed to fear that his police file could be re-opened and he could be sent to jail.  He left Georgia in November 2013.  He claimed he had the assistance of a party colleague who arranged travel documents.

7. He claimed if he returned to Georgia, he would be compelled to continue to fight for political freedom and to continue to be active within the UNM and that he feared harm on this basis.

8. The Applicant attended an interview with the delegate.  After the interview his representative provided the Department with a written submission of 29 May 2014.  The submission contended that the Applicant’s political allegiance with the opposition UNM, compounded with the explicit criticism he had made of the ruling Georgian Dream Party, had made him a target of ongoing adverse persecution in Georgia.  It was claimed that he had a high level of involvement with the UNM as a party advocate in the public sphere who had distributed pamphlets and spoken to members of the public about the party platform and had explicitly criticised the Georgian Dream Party.  The Applicant’s representative claimed that the Applicant had a higher profile than other UNM members and was recognisable as an advocate of the UNM.

9. In the course of addressing concerns raised by the delegate, the Applicant’s representative also referred to the Applicant’s oral evidence that he was not aware of EU laws regulating visa requirements for Georgians.  It was claimed that the Applicant had never visited the EU and that it was not a viable place of refuge for him. 

10. However in August 2014 the delegate wrote to the Applicant putting adverse information to him that indicated that on 28 October 2008 he had been convicted of a criminal offence in the United Kingdom; that on 6 November 2008 he had claimed asylum in the UK; that on 7 April 2009 he was removed from the UK to Ireland because he had previously claimed asylum in Ireland; and that he had “status” in Ireland.

11. In a response of 1 October 2014, the Applicant’s representative informed the Department that the Applicant had instructed that he was charged with using a false passport in the UK in 2008; that he had attempted to apply for asylum in the UK in 2008; and that he had been removed to Ireland in April 2009 in circumstances where he was told he was not permitted to apply for asylum in the UK because he had made an application for asylum in Ireland.  The Applicant claimed this application was ongoing at that time but that he was removed to Georgia (from Ireland) in November 2011 pursuant to an arrangement with the Georgian government.  He claimed that he no longer had any right to enter or reside in Ireland.

12. On the Applicant’s instructions, his representative provided additional information about the circumstances said to have given rise to his departure from Georgia for the UK and Ireland (which, it emerged, was in 2006).  The Applicant claimed that prior to that departure from Georgia, he had been abducted, severely physically assaulted and robbed of a large amount of money by “unidentified assailants” whom he suspected were working with knowledge of the police.  He claimed he believed that he was targeted for extortion because he had the profile of someone who was relatively wealthy as a well-known farm owner and taxi driver, and that he feared further such harm in the future.  The Applicant claimed he had not disclosed this information as he feared he may be returned to Georgia.

13. The delegate was of the view that the Applicant had demonstrated his willingness to provide false and misleading information in both his written and oral testimony.  Having regard to what the delegate described as the “serious incongruence” between the Applicant’s written and oral testimony and his admission that he was essentially in the UK and Ireland between October 2008 and November 2011, the delegate did not accept that he was an “active high profile member” of the UNM.

14. Further, the delegate did not accept that the Applicant was “a committed and high profile member” of the UNM after his return to Georgia in November 2011 until his departure for Australia.  The delegate had regard to the Applicant’s inability to explain adequately how he acquainted the local populace with UNM’s ideology or political platforms and his lack of general knowledge about the UNM and its earlier political campaigns. 

15. Insofar as the Applicant had claimed that he was motivated to join the UNM in January 2008 because of Russia’s invasion of Georgia, the delegate observed that the invasion in fact took place in August 2008. 

16. The delegate did not accept that the Applicant was a committed high-profile member of the UNM as claimed or his claims of past abduction or harm or that he was framed by the police in an attempt to get him to stop working for the UNM.  Overall, the delegate considered the Applicant’s claims that he was persecuted for his imputed or real political opinions were supported by “tailored false claims” manufactured to meet the requirements for a protection visa.  The delegate considered, but rejected, the Applicant’s explanations for falsifying his claims.

17. In circumstances where the Applicant was found to be “completely lacking in credibility”, the delegate did not accept his new claims about having been targeted for extortion before he went to the UK. 

18. The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence of what occurred in the hearing is the Tribunal’s account in its reasons.

The Tribunal Decision

1. In its reasons for decision the Tribunal described the Applicant’s claims in the statutory declaration accompanying his protection visa application and referred to the fact that in his interview with the delegate the Applicant had confirmed the accuracy of his claims and the answers and information he had submitted.  It referred to the submissions to the delegate, the adverse information put to the Applicant by the delegate and the Applicant’s response, including the new claim he made based on events in Georgia prior to his departure for the UK and Ireland in 2006.

2. The Tribunal summarised aspects of what occurred at the Tribunal hearing.  It recorded that the Applicant had conceded to it that all the information he had provided to the Department was not correct.  He claimed that he had not disclosed the fact that he had previously applied for refugee status in England and Ireland because he thought Australia would not grant him protection if information about his English criminal conviction was known.  He told the Tribunal that he had been granted asylum in Ireland but that he had only limited work rights there.  He claimed that he had heard that Canada was granting asylum and work rights to people from the Baltic States, so he had attempted to travel to Canada in 2008 on a false Lithuanian passport.  He was detected and charged by the British authorities and sentenced to 12 months imprisonment.  He explained that his application for asylum in England was not accepted because he already had a valid application in Ireland.  After he served six months of his sentence in England he was deported to Ireland.  He claimed he had returned to Georgia in 2011 as the Georgian President had stated that it was now safe for refugees to return and the government of Ireland decided to send him back.  He claimed his refugee status in Ireland was only temporary.

3. The Tribunal recorded that the Applicant claimed that when he originally left Georgia (in 2006) he had been fleeing harm after he was kidnapped, robbed and beaten, left unconscious and hospitalised.  He claimed he had not reported this incident because one of his abductors was a policeman, named Georgi.  He travelled to Ireland and claimed asylum.

4. The Applicant claimed that at the time he returned to Georgia in 2011 the people who had previously abducted him were in jail.  He drove a minivan for hire and claimed he had transported many UNM members.  He claimed he had brochures for the UNM in his van and handed them out to customers and that he also volunteered at the UNM office. 

5. The Applicant claimed that in 2012, when the new Georgian Dream Government came into office, all prisoners were released and that Georgi, the policeman who had been involved in his 2006 abduction, returned to a position of authority in the police force.  The Applicant claimed he left Georgia again because he was afraid Georgi could act with impunity and would target him again because he supported the UNM.

6. The Tribunal recorded that the Applicant had conceded to it that he was not harmed or threatened on any occasion between 2011 and his 2013 departure.  He was not abducted, threatened or told to resign from the UNM and he did not have his house searched by police.  He was never charged in relation to possession of a weapon or harassed by the police.  The Applicant conceded that these claims were all false and that he had created them to assist with his claim for protection.

7. The Applicant admitted to the Tribunal that he first became a member of the UNM in October 2013 just before he left Georgia.  He claimed that the person in Georgia who helped him obtain a visa for Australia had told him that the membership card would assist with protection claims in Australia. 

8. The Tribunal did not find the Applicant or his claims to be credible.  It was not satisfied that the revised evidence he had provided was a true account of his circumstances. 

9. The Tribunal gave reasons for its conclusion that the decision under review should be affirmed.  First, it had regard to the Applicant’s concession that key elements of his claims had been concocted and that he was not even present in Georgia for a key period of his initial claims.  The Tribunal therefore found that the Applicant was not a member of the UNM until 18 October 2013 and that he did not experience any harm in Georgia for this reason prior to his departure.  In particular, it found that the Applicant was not abducted by three people, beaten and threatened with a knife in November 2012, threatened by Georgian Dream members, falsely arrested or ever detained by the police at any time. 

10. Insofar as the Applicant had previously blamed interpreting difficulties for inconsistencies and omissions in his claim (because a Russian interpreter had assisted with preparation of his application and statutory declaration), the Tribunal observed that he had conceded that he spoke English and Russian competently. 

11. The Tribunal considered the Applicant’s claim that he had not disclosed information about his previous asylum applications in England and Ireland as he was afraid his criminal conviction in England would have a negative effect on his protection claims in Australia.  However, the Tribunal had regard to the fact that in his original claims the Applicant had invented a claim that he had a criminal conviction in Georgia for illegal weapons possession. 

12. Insofar as the Applicant claimed that he had been “influenced to create claims of harm from the Georgian Dream” after discussing his circumstances with a fellow Georgian in Australia (who told him his circumstances were not sufficient to get a visa), the Tribunal had regard to the fact that the Applicant had also disclosed that he had taken steps to join the UNM prior to his departure from Georgia with the intention that the membership card would assist a claim for refugee status and that he had relocated from Melbourne to Sydney because he was told by some Russians that claims for Georgians were more successful in Sydney. 

13. The Tribunal observed that the Applicant had been represented in relation to his claims and that his agent had provided detailed and thorough submissions based on the original claims.  It was of the view that he would have had plenty of opportunity to explore any concerns about his genuine fears with his representative.  The Tribunal did not accept the Applicant’s explanations for inventing claims and failing to disclose his prior refugee claims. 

14. The Tribunal considered the Applicant’s revised claims stemming from an alleged abduction in March 2006.  It found his evidence in relation to this incident was vague and unreliable.  It observed that the Applicant initially had difficulty identifying the perpetrators (and could only recall the first name of the alleged policeman) and found that he could not satisfactorily explain how he knew the other perpetrators went to prison when he was unable to identify them.  The Tribunal considered that the Applicant had “conveniently tailored his evidence” about having been released in a place that was not under Georgian government control and where the matter could not be reported to the police.  It had regard to the fact that he had given conflicting evidence as to what occurred thereafter and to the absence of any evidence of the extensive injuries the Applicant claimed had interfered with his memory of the event.  Due to the vagueness of the Applicant’s evidence in relation to this incident, the lack of supporting material and its concerns about his credibility, the Tribunal did not accept that the Applicant was ever abducted or threatened in 2006 as claimed. 

15. As the Tribunal did not accept the Applicant was abducted, robbed and beaten by a police officer in 2006, it did not accept as plausible his claim that he would be pursued now by Georgi because he could report the abduction or that he was in fear Georgi when he departed Georgia in 2013.  It was not satisfied that Georgi existed or that corrupt members of the police force would be pursuing the Applicant.

16. The Tribunal considered the Applicant’s claim that he was at risk of extortion in Georgia because he had the profile of someone wealthy and was well-known as a farm owner.  However it had regard to the fact that his evidence to the Tribunal about his previous circumstances in Georgia included a claim that he had difficulty obtaining employment due to a disability (because he had been born with nerve damage to his right arm) which prevented him from obtaining a commercial trucking licence and following his father in his employment and that he did not own the farm on which he worked.  The Tribunal was not satisfied that if the Applicant returned to Georgia he would have a profile that would put him at risk of harm from extortion.

17. The Tribunal also considered the Applicant’s claim he would be at risk as a “supporter” of the UNM because the criminals in Georgia were now “feeling very comfortable” and were targeting people who supported the UNM and members of the Georgian Dream Party were arresting UNM members and/or UNM members were threatened with prosecution. 

18. The Tribunal had regard to the Applicant’s concession that he was not actually a member of UNM prior to 18 October 2013 and that he then “only joined for the purposes of a Protection claim in Australia”.  It acknowledged that the Applicant maintained that his original claims about his association with the UNM from 2011 were true.  The Tribunal accepted that the Applicant may have driven UNM party members during the 2012 election campaign in the course of his employment as a minivan driver and that he may have discussed his support for the UNM with other passengers in his vehicle.  However, the Tribunal was not satisfied that the Applicant’s association with the UNM went beyond this.  It did not accept that he had been involved in organising rallies and getting people to vote for or join the UNM, that he tried to raise awareness about the party or that he had otherwise been involved in any activities of the UNM.  It did not accept the Applicant had volunteered or campaigned for the UNM in any capacity during the general or presidential elections.  In making these findings the Tribunal had regard to the Applicant’s lack of knowledge concerning how many seats the UNM had obtained or the percentage of the vote they received in the 2012 elections or the percentage of the vote for the UNM candidate in the 2013 presidential election, notwithstanding his claims about volunteering for both campaigns.  The Tribunal was of the view that the Applicant’s knowledge concerning the UNM was not consistent with the claimed campaigning and involvement and that it was not plausible that he would have volunteered to the extent claimed without actually becoming a member of the UNM.

19. The Tribunal found that the Applicant’s political involvement had never been significant.  It was not satisfied that he engaged in any activities other than transporting some UNM party members, distributing some brochures and having general discussions with customers in his minivan.  It found that he did not hold any positions and was not a member of the party during the time in question.  It found that he did “nothing of importance” at that time.

1. Nonetheless, the Tribunal evaluated whether the Applicant would be at risk of harm for his “individual circumstances”.  It had regard to country information about a wave of arrests of high-profile opposition politicians and senior officials of the former government after the 2012 election.  It found, however, that the circumstances of the Applicant did not fit this profile and that the country information did not support any claim that there was wide-scale persecution of low-level supporters of the UNM.  It also had regard to recent country information about the level of support for the UNM and the more peaceful and non-violent atmosphere in Georgia in 2013.

2. Having regard to the individual circumstances of the Applicant, the Tribunal was not satisfied there would be any reason to harm or kill him.  It took into account his concession that he did not experience any harm or threats of harm due to his support for the UNM prior to his departure from Georgia.  The Tribunal was of the view that if Georgian Dream Party members had wished threaten or harm the Applicant, some steps would have been taken prior to his departure in November 2013.  The Tribunal did not accept that the Applicant would be of any interest to Georgian Dream supporters or criminals associated with the Georgian Dream Party for reason of his support for the UNM.

3. On the evidence before it, the Tribunal was not satisfied that the Applicant met the Refugees Convention criterion.  It reiterated its view that the Applicant had fabricated and tailored his claims in order to achieve a preferred migration outcome and that these claims were not credible.

4. The Tribunal considered whether Australia had protection obligations to the Applicant under the complementary protection criterion, “considering his individual circumstances as a UNM supporter” and his claim that the Georgian Dream Party had released criminals from prisons.  It was not satisfied that the Applicant had a profile that placed him at real risk of significant harm.  The Tribunal observed that the Applicant had not provided country information to support a claim that his home district had become especially violent or unsafe due to an influx of criminals and stated that it had not found country information supporting the Applicant’s claims.  It did not consider that the Applicant had a profile that would place him at risk of harm or extortion from criminals.  It had regard to the fact he had not been targeted in this manner prior to his departure from Georgia.  It found that this claim was “speculative”.  Having regard to its earlier findings of fact and on the basis that the Applicant lacked credibility, the Tribunal did not accept that he met the complementary protection criterion.

5. The Tribunal affirmed the decision not to grant the Applicant a protection visa. 

These Proceedings

1. The Applicant sought review by application filed on 14 June 2016.  He now relies on a further amended application filed on 28 June 2018 in which there is one ground.  It is as follows:

   The Tribunal has failed to complete the exercise of its jurisdiction as it has failed to assess the applicant’s claim to protection from future political persecution on the basis of its own factual finding that the applicant had joined the UNM party as a member on 18 October 2013.

2. In pre-hearing written submissions, counsel for the Applicant acknowledged that while his application was before the delegate the Applicant had disavowed his original claims and had made new claims (which had not been accepted by the Tribunal) in relation to a fear of persecution from policemen who had previously robbed and assaulted him.

3. However, it was pointed out that the Applicant also made a claim that he was an “active participant” in the UNM and feared being targeted by the Georgian Dream Party which was in power.  It was observed that the Tribunal had accepted that the Applicant had transported UNM members, distributed brochures and had general discussions with customers he was transporting in his minivan, although it had found that he did not hold any positions within the party.

4. The Applicant’s submissions also acknowledged that before the delegate he had claimed he joined the UNM in January 2008 (in response to the Russian invasion of Georgia), that this claim had not been accepted (as the Russian invasion had not occurred until August 2008) and that he had admitted to the Tribunal that he did not become a member of the UNM until 2013 and that this was in order to enhance his claims for protection in Australia. 

5. However it was submitted that while the Tribunal had accepted that the Applicant had joined the UNM on 18 October 2013, it had not assessed his claims to protection on the basis that he was a member of the UNM.  Rather, it was contended that the Tribunal had observed that the Applicant had not held any positions or been a member of the party in the past and then made findings on whether he would be at risk of harm “for these individual circumstances”.  It was submitted that the Tribunal erred in making no finding on what effect the Applicant now having joined the UNM might have in the future. 

6. On this basis it was contended that the Tribunal failed to complete the exercise of its jurisdiction, as it failed to assess the Applicant’s claims to protection on the basis of its factual findings in circumstances where whether the Applicant was a member of the UNM was clearly a matter of substance that could affect the assessment of his claim to fear political persecution.

7. In oral submissions counsel for the Applicant contended that the Tribunal had approached the Applicant’s claims by considering the fact that prior to leaving Georgia the Applicant had not been persecuted by reason of his activities in support of the UNM.  However it was pointed out that those activities had occurred when the Applicant was not a member of the UNM and that the Applicant had claimed that members of the Georgian Dream Party were arresting UNM members and/or that they were threatened with prosecution.  It was submitted that in assessing what might happen in the future the Tribunal had failed to take into account the fact that the Applicant was a member of the UNM.  This was said to be an integer of his claims that had been overlooked.  No authority was cited in support of the ground of review.

8. The First Respondent submitted that the Tribunal had dealt with the claims made by the Applicant, that he had not claimed to fear harm simply because of his now being a member of the UNM divorced from his claimed past activities for the party and that the country information before the Tribunal did not suggest that the membership of the UNM, without more, would attract harm.  It was submitted that in those circumstances the Tribunal was not obliged to address the matter further than it did.

9. In oral submissions the First Respondent pointed out that in the written submission to the Department the Applicant’s claim to fear harm was not put on the basis of his membership of the UNM, but rather on the basis that he had a high profile and was targeted above other members of his branch because he was recognised as an advocate and well-known as a supporter of the UNM.  It was submitted that there was no evidence that the Applicant made a claim that being a member of the UNM was an additional reason for his fear, over and above his claimed former activities.

10. It was contended that, according to the Tribunal, the Applicant’s only claim in this respect was that he had joined the UNM just before he left Georgia because he had been told that this would assist him in getting a protection visa in Australia. 

11. The First Respondent submitted that in the absence of a transcript of the Tribunal hearing, there was no evidence before the court to suggest that the Applicant had articulated any fear based on the act of becoming a member of the UNM that was separate from his claims about his past activities for the UNM.  It was submitted that on a fair reading of the Tribunal decision it was clear that while the Tribunal was aware that the Applicant was now a member of the UNM, it had focused on what the Applicant said was the basis for his claimed fear of harm, being his past activities with the UNM and the profile he claimed he had gained from such activities.

12. This ground is not made out. 

13. The Tribunal accepted and took into account the Applicant’s claim that in October 2013 he became a member of the UMN for the first time, that this was just before he left Georgia and that he took steps to join the UNM in October 2013 prior to his departure with the intention that the membership card would assist a claim for refugee status in Australia but that he had not experienced any harm in Georgia prior to his departure (in November 2013) for this reason. 

14. The Tribunal stated (at paragraph 33-34):

    33.  The Tribunal has considered the applicant’s claim that he would be at risk as supporter of the UNM, because the criminals were now feeling very comfortable in Georgia and they were targeting people who supported the UNM.  Members of the Georgian Dream Party were also arresting UNM members and/or they were threatened with prosecution.  The applicant conceded that he was not actually a member of the UNM prior to 18 October 2013, and then only joined for the purposes of a Protection claim in Australia.  However he maintained that his original claims about his association from 2011 with the UNM was all true.  It is accepted that he may have driven around UNM party members during the 2012 election campaign in the course of his employment as a minivan driver and that the applicant may have discussed his support for the UNM with other passengers in his car.  However, the Tribunal is not satisfied that his association with the UNM went beyond this.  The Tribunal does not accept that the applicant had been involved in organising rallies and getting people to join or vote for the UNM, that he tried to raise awareness about the party or that he had otherwise been involved in any activities of the UNM.  The Tribunal does not accept that he volunteered or campaigned for the UNM in any capacity during the general or presidential elections.  The applicant was unsure how many seats the UNM obtained in the 2012 elections or the percentage of the vote they received.  He suggested that it might have been 20%.  According to the OSCE report, the United National Movement won 40% of the vote and Georgian Dream won 55%.  Similarly he could not identify the percentage of the vote for the UNM candidate in the 2013 presidential elections, although he claimed to have volunteered for both campaigns.  The Tribunal has formed the view that the applicant’s knowledge concerning the UNM was not consistent with his claimed campaigning and involvement.  It is further not plausible that he would have volunteered to the extent that he claimed without actually becoming a member. 

    34.  The Tribunal finds that applicant’s political involvement has never been significant.  The Tribunal is not satisfied that he engaged in any activities other than transporting some UNM party members, distributed some brochures and had general discussions with customers in his mini van.  He did not hold any positions or was a member of party, and the Tribunal finds that he did nothing of importance.  The Tribunal has nevertheless evaluated whether he would be at risk of harm for these individual circumstances.  The 2012 election saw the first peaceful transfer of power since Georgia’s independence in 1992; with the Georgian Dream party of winning an overall majority and its representatives assuming the prime ministerial and all other cabinet positions on 25 October 2012.  As noted above, over 40% of the country supported the UNM in the 2012 elections.   The Tribunal has had regard to various independent sources, including those cited in the applicant’s representative’s submissions, that in the wake of the election, there was ‘a wave of arrests of high-profile opposition politicians’ and senior officials of the former government; while others ‘fled the country in fear of possible prosecution by the new authorities’.  The circumstances of the applicant do not fit this profile.  The country information does not support that there was wide scale persecution of low lever supporters.  For example, the Report on the Protection of Human Rights and Freedoms in Georgia 2013, prepared by the Public Defender of Georgia, was published on Humarights.ge in April 2014.  The report described the political atmosphere in Georgia from the 2012 parliamentary elections though to the 2013 Presidential elections:

    The Year 2013 was less dramatic compared to turbulent 2012 resulting in peaceful change of power following October parliamentary elections.  Compared to extremely charged-up pre-election period ahead of parliamentary elections, presidential elections proceeded in the atmosphere of peace and non-violence.  Although the public witnessed a year-long painful cohabitation of the two main political powers, this tension did not translate into fundamental changes in overall human rights protection.

    The Tribunal is not satisfied on the individual circumstances of the applicant that there would be any reason to harm or kill the applicant.  The applicant conceded that he did not experience any harm or threats of harm due to his support for the UNM prior to his departure and, if the Georgian Dream Party members wished to do that, the Tribunal considers that some steps would have been taken prior to the applicant’s departure in November 2013.  The Tribunal does not accept that the applicant would be of any interest to Georgian Dream supporters of criminals associated with the Georgian Dream Party for this reason.   

    (footnotes omitted, errors in original)        

15. The Applicant did not claim that the act of joining the UNM in itself was separate from or added to the basis on which he claimed to fear harm in the future in Georgia as a “supporter” of the UNM.  As pointed out by the First Respondent, in submissions to the Department it had been contended that the Applicant feared harm based on his high level of involvement in the UNM, over and above that of an ordinary member.  However those claims were made before the Applicant conceded that he only joined the UNM in October 2013.  His later claims were based on his association with UNM from 2011 on, which the Tribunal found had never been significant. 

16. I am satisfied that, reading the Tribunal reasons fairly in light of the decision as a whole, it is clear that the Tribunal considered the Applicant’s political involvement (which included becoming a member of the UNM in October 2013) as part of his individual circumstances.  It found that his involvement had never been significant.  It then evaluated whether the Applicant would be at risk of future harm for his “individual circumstances” in light of country information which it found did not support any contention that there was wide-scale persecution of low‑level supporters of the UNM and suggested there had been an atmosphere of peace and non-violence in 2013.

17. The Applicant did not claim to fear future harm simply because he had joined the UNM in October 2013 divorced from his claimed past activities and support for the UNM from 2011 on.  He did not claim that the fact of membership increased his risk of harm.  The Tribunal recorded his claims about arrests of and threats to UNM members.  However it considered 2012 country information did not support any claim that there was wide-scale persecution of low level supporters of the UNM and referred to information about a more peaceful and non-violent atmosphere in Georgia in 2013.  There is no suggestion that the country information before the Tribunal suggested that membership of the UNM in itself would attract or contribute to a real risk or chance of future harm within the Refugees Convention or complementary protection criterion for a person found to have had no prior significant political involvement. 

18. I am satisfied that the Tribunal took the Applicant’s membership of the UNM in October 2013 into account as part of his “individual circumstances” in considering the chance or risk of future harm.  It found that there would not be any reason to harm or kill him in circumstances where he had not experienced any harm or threat of harm due to his support for the UNM prior to his departure in November 2013.  It rejected the notion that he would be of any future interest to Georgian Dream supporters or associated criminals by reason of his individual circumstances.  Such circumstances included his membership of the UNM from October 2013 which was accepted by the Tribunal. 

19. Similarly, in considering the complementary protection criterion the Tribunal considered the Applicant’s “individual circumstances” as a UNM supporter and his claim the Georgian Dream had released criminals from prisons.  I am satisfied that the Tribunal’s finding that it was not satisfied the Applicant had a “profile” that placed him at real risk of significant harm encompassed the fact of his membership of the UNM in October 2013.   

20. The Tribunal accepted that the Applicant had become a member of the UNM in October 2013.  Its consideration of his “individual circumstances” and the fact he was a supporter of the UNM encompassed this factor.  While the Tribunal focused on what the Applicant said was the basis for his claimed fear of harm; that is, his past activities with the UNM, the profile he had gained from those activities and his support for the UNM, it also addressed his claims about persecution of UNM members.  The Tribunal’s reasoning that the Applicant did not have a profile that put him at risk, whether from Georgian Dream supporters or criminals, that the country information, including about arrests of high-profile opposition (that is, UNM) politicians and senior officials of the former government, did not support any claim that there was wide-scale persecution of low level supporters of the UNM, and its consideration of more recent country information sufficiently addressed the fact that the Applicant joined the UNM in October 2013. 

21. It has not been established that the Tribunal failed to consider an integer of the Applicant’s claims in the manner contended for in the application for review.  The ground of review is not made out.  The application should be dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 4 June 2019