Gozalishvili v Minister for Immigration and Multicultural Affairs

[2000] FCA 1953

FEDERAL COURT OF AUSTRALIA
Gozalishvili v Minister For Immigration and Multicultural Affairs [2000] FCA 1953

Migration Act 1958 (Cth), s 476

IVANE GOZALISHVILI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1057 of 2000

WILCOX J
SYDNEY
20 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1057 of 2000

BETWEEN:	IVANE GOZALISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	20 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant, Ivane Gozalishvili, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1057 of 2000

BETWEEN:	IVANE GOZALISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	20 DECEMBER 200
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

WILCOX J:

1. This is an application by Ivane Gozalishvili to review a decision of the Refugee Review Tribunal.  The Tribunal refused Mr Gozalishvili’s application to review a decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, refusing a protection visa. 

2. The applicant is a native of Georgia.  He came to Australia with several compatriots, arriving on 1 July 1998.  On 13 August 1998, he lodged an application for a protection visa. I gather that most, if not all, of his companions took the same course.  It seems that six of those cases were dealt with by a particular Tribunal Member, that being the Member who refused Mr Gozalishvili's claim.  The Tribunal Member accepted that Mr Gozalishvili was a member of, what she called, a “small political discussion group” that bore the title, “Akhaltsikhe Gamsakhurdia Supporters’ Group”.

3. This group, according to the applicant, was opposed to the government of the current President of Georgia, Eduard Shevardnadze.  The Tribunal Member accepted that the supporters' group met privately at someone's house from time to time, perhaps as frequently as once or twice or week in early 1996.  The group was not a registered political party and was not officially affiliated with a registered political party.  However, the Tribunal Member accepted that one of the members of the group obtained information, from time to time, from the Round Table-Free Georgia Party.

4. The Tribunal Member accepted the evidence of the applicant that he attended five public meetings in Akhaltsikhe; one in 1996, two in 1997 and two in 1998.  She found there was no trouble at the first three of these meetings, despite the fact that the meetings did not have a permit.  When the police asked the participants to move on, they did so. 

5. The fourth meeting was apparently on 3 January 1998; this was held outside the theatre in the square at Akhaltsikhe.  The Tribunal Member found this was a place in respect of which a permit would be required.  She accepted that, on this occasion, the police moved in with truncheons, hit out at people in an apparently random way and made some arrests.  The arrested persons apparently did not include Mr Gozalishvili.  Nor was he injured in any way or subjected to any follow-up action. 

6. The fifth meeting was said to have occurred on Independence Day, 26 May 1998.  The Tribunal Member was puzzled about the date because the applicant told her the meeting was held on a Sunday, yet 26 May 1998 was apparently a Tuesday.  However, the Member accepted that Mr Gozalishvili was present at the meeting.  She noted that Mr Gozalishvili claimed nine people were arrested although he, himself, saw only a few people arrested.  The Tribunal Member also noted statements Mr Gozalishvili made on a hearsay basis, about some of the arrested people being sent to the capital, Tbilisi.

7. The Tribunal Member noted Mr Gozalishvili's claim that, two days after the meeting, he left his home and went into hiding; and also his claim that the police subsequently searched his house.  Apparently, the suggestion was that he was suspected of being a terrorist.  However, the Tribunal did not accept the factual accuracy of these claims.  The Member stated reasons for this.

8. The Tribunal Member noted that the written submission, lodged on behalf of the applicant and eight other claimants for refugee status, made general claims about "brutal suppression" of “all meetings and protest rallies” and “repressions from the district authorities.”  In her reasons for decision, the Member went on:

   “At hearing, none of these claims was pursued or supported, nor were claims about political activism such as writing to the authorities and to newspapers.  The applicant has made no claims, nor does the evidence suggest, that he has ever suffered harm - let alone harm amounting to persecution – for reason of his political views, nor for any other Convention reason, in the past.  He has never come to the adverse attention of the authorities, not even at the five public rallies which he attended; he has lived his life in the same small district and in the same house (where his family continue to live) since about 1970.

   On the evidence before it, the Tribunal is not satisfied that there is a connection between the applicant's political views and his departure from Georgia.  That is, it does not accept that he felt he had to leave Georgia because of ramifications of a demonstration in May 1998.  The Tribunal finds that, independent of the demonstration, the applicant heard of an opportunity to buy a visa to Australia and took the opportunity.

   The Tribunal is satisfied that the authorities in Georgia have no adverse interest in the applicant for reason of his political views, even if he does attend demonstrations twice a year, and go to a small private discussion group with his friends.  There is ample independent evidence … to support this finding.”

9. The Member then referred to evidence about the conduct of one of the other applicants and ended with the conclusion that “the chance that harm, let alone harm amounting to persecution, will befall the applicant for a Convention reason in the reasonably foreseeable future is remote.”  Accordingly, the Tribunal found the applicant does not have a well founded fear of persecution for a Convention reason. 

10. As will be apparent, these are findings of fact.  The facts are for the Tribunal to determine.

11. I understand, very clearly, that Mr Gozalishvili feels the Tribunal did not make correct findings of fact. However, I cannot interfere with the Tribunal's decision simply on the basis that I might be persuaded to take a different view of a factual matter. It is necessary for an applicant for review to make out one of the grounds set out in s 476 of the Migration Act 1958.

12. Mr Gozalishvili handed me a written submission.  It was obviously prepared by somebody else; it is written in English and I understand he does not speak or read English.  However, I treat it as putting the matters Mr Gozalishvili wishes to raise with the Court.

13. The submission refers to the ground set out in s 476(1)(g) of the Migration Act, "that there was no evidence or other material to justify the making of the decision".  The submission refers to a number of allegations the Tribunal said it did not accept, and argues there was no evidence to justify non-acceptance.  There are many submissions which are simply propositions about the facts. 

14. In relation to s 476(1)(g) of the Migration Act, I pointed out to Mr Gozalishvili, who conducted his own case with the assistance of an interpreter, that s 476(4) is in the following terms:

    “(4)     The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

    (a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

    (b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

15. Para (a) refers to a case where the person who made the decision was required by law to reach that decision only if the particular matter was established.  That is the situation in the present case, except that it works the other way.  The Tribunal Member was required by law to rule in favour of Mr Gozalishvili only if she was satisfied he was a person to whom the Convention on Refugees applied.  The question for her was whether she was satisfied about that matter.  There was no matter unfavourable to Mr Gozalishvili about which she had to be positively satisfied before refusing to recommend the grant of a protection visa.

16. Para (b) refers to a situation where the decision maker based the decision on the existence of a particular fact and that fact did not exist.  It is apparent that is not the present case.  The Tribunal did not make its decision because of the existence of a particular fact, but rather because it was not satisfied Mr Gozalishvili came within the Convention on Refugees. It is not possible for Mr Gazalishvili to make out a case under para (g) of s 476 (1).

17. As Mr Gozalishvili is not legally represented, I have considered for myself whether any other ground of review is apparent from the Tribunal's reasons; for example, error of law or failure to follow proper procedures.  But I see nothing to indicate any other ground is available in this case.  I repeat again that the real problem, from Mr Gozalishvili's point of view, is that the Tribunal came to an unfavourable view of the factual claims made by him, and that is a matter about which I have no jurisdiction. 

18. I have no option but to dismiss the application and I propose to take that course.  The application will be dismissed with costs.

I certify that this and the preceding eighteen (18) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:  20 December 2000

The Applicant appeared in person.
Counsel for the Respondent:	Justin Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 December 2000
Date of Judgment:	20 December 2000