Gzirishvili v Minister for Immigration and Multicultural Affairs

[2001] FCA 1568

FEDERAL COURT OF AUSTRALIA

Gzirishvili v Minister for Immigration & Multicultural Affairs [2001] FCA 1568

MIGRATION – protection visa – review of decision of Refugee Review Tribunal (“Tribunal”) – no issue of principle.

Migration Act 1958 (Cth) s 476(1)(a), s 476(1)(e), s 476(1)(g), s 476(4)(a)

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to

ZURAB GZIRISHVILI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 912 OF 2001

CARR, CONTI AND STONE JJ
6 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 912 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ZURAB GZIRISHVILI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CARR, CONTI & STONE JJ
DATE:	6 NOVEMBER 2001
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.   the appeal be dismissed;

2.   the appellant pay the respondent’s costs of the appeal.

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 912 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ZURAB GZIRISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CARR, CONTI & STONE JJ
DATE:	6 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CARR J:

1. I agree with the reasons given by Stone J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

Associate:

Dated:             9 November 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 912 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ZURAB GZIRISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CARR, CONTI & STONE JJ
DATE:	6 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CONTI J:

1. I agree with the reasons given by Stone J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             9 November 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 912 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ZURAB GZIRISHVILI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CARR, CONTI & STONE JJ
DATE:	6 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J:

INTRODUCTION

1. Mr Gzirishvili (“the appellant”), a citizen of Georgia, arrived in Australia on 1 July 1998 with nine others. On 12 August 1998, Mr Gzirishvili applied to the Minister forImmigration and Multicultural Affairs (“the Minister”) for a protection visa under the Migration Act 1958 (Cth) (“the Act”). A delegate of the respondent Minister refused to grant a protection visa on 10 November 1998 and the delegate’s decision was upheld by the Refugee Review Tribunal (“Tribunal”) on 7 August 2000 (decision handed down on 6 September 2000). He applied to this Court on 4 October 2000 and, on 21 May 2001, a judge of this Court dismissed his application. Mr Gzirishvili has appealed from that decision.

   THE TRIBUNAL’S DECISION

2. The appellant had claimed that he was entitled to a protection visa because he had a well-founded fear of being persecuted for reasons of his political opinion. He claimed to be a member of the Akhaltsikhe Zviad Gamsakhurdia Support Group (“the Group”), which opposed the current government of Georgia headed by Mr Eduard Shevardnadze, and to have participated in public rallies organised by the Group. He described events as follows:

   ·in January 1998, police broke up a rally and beat the appellant  about the head;

   ·on 26 May 1998, police broke up a rally, beat people and arrested the appellant and a number of other people;

   ·another member of the Group who had been arrested at the 26 May 1998 rally was forced to make a false confession implicating other members of the Group;

   ·police searched the appellant’s house for weapons on two occasions and, on the second occasion, arrested the appellant’s son.

3. The Tribunal rejected the appellant’s claim that he was part of any organised political group, pointing to aspects of the appellant’s description of the Group that, in the Tribunal’s view, made the existence of such a group unlikely. The Tribunal did accept, however, that the appellant supported Zviad Gamsakhurdia although it noted that he “was not very familiar with Gamsakhurdia’s ideology, apart from the basic issues of independence and democracy”.

4. The Tribunal accepted that the appellant attended public rallies that were violently dispersed by police and that the appellant was injured, detained for two days and had his house searched. On independent evidence the Tribunal found that permits are required for assemblies on public thoroughfares and that, in Georgia, it is illegal to hold demonstrations in front of public buildings. The Tribunal also found that permits are not generally granted to Zviadists.  It found that the rallies attended by the appellant were held without permits and, because the rallies were held in the Town Square, inferred that they would have been in front of a public building.

5. The Tribunal found, however, that Zviadists are not prevented from expressing their political opinion in other ways, such as by demonstrating on private property, by writing letters to newspapers, by joining political parties and by voting in elections. In this context, the Tribunal held that enforcement of a ban on demonstrations in front of public buildings and discriminatory refusal to issue permits to Zviadists to assemble in public streets did not constitute persecution. The Tribunal further held that the violence directed towards the appellant at illegal meetings was because of his attendance at an illegal meeting, not his political views.

6. The Tribunal accepted that the appellant may have been detained after one of the rallies. However, it noted that, on his own evidence, he was released after two days, which would tend to indicate that he was of no further interest to the authorities. The Tribunal rejected the appellant’s evidence that he had been implicated by a false confession.  The Tribunal observed that it was not plausible that someone who had made such a confession would be released.

7. The Tribunal noted that, other than during his presence at illegal meetings, the appellant had not suffered any adverse consequences from his political opinion. The Tribunal further found that the beating received by the appellant were not sufficiently severe to constitute persecution. It also held that, should the appellant return to Georgia, he would be able to express his political opinion in a legal manner without risk of persecution. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution by reason of his political opinion.

   THE DECISION OF THE PRIMARY JUDGE

8. The primary judge addressed each of the three matters raised in the application, namely that there was a failure to observe procedures (s 476(1)(a) of the Act), that the Tribunal’s decision involved an error of law (s 476(1)(e) of the Act) and that there was no evidence or other material to justify the making of the decision (ss 476(1)(g) and 476(4)(a) of the Act). All three grounds have been repeated in the Notice of Appeal.

9. The primary judge addressed each of the issues raised in the “Statement” filed by the appellant as follows:

   ·the appellant submitted that an applicant for refugee status should be given the benefit of the doubt and criticised the Tribunal’s findings on credibility. The primary judge noted that the appellant’s submissions were in error in referring to a “burden of proof of refugee status” as an applicant for refugee status has no such burden. His Honour pointed out that it is not a ground of review in this Court that the Tribunal member has unreasonably reached certain factual conclusions.

   ·the appellant referred to the decision of Gaudron J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 in which her Honour commented that a past act of persecution could have continuing significance. The primary judge agreed with Gaudron J’s comments but noted that they would only be relevant to cases where a past act of persecution had been established. The Tribunal in this case had found that the past conduct to which the appellant was subjected did not constitute persecution.

   ·the appellant identified several findings of fact that he claimed were in error, referring to the lack of evidence for such findings. The appellant did not establish, in relation to any particular fact, that the fact was critical to the Tribunal’s decision, or that there was no evidence to justify that finding or that the fact did not exist. The primary judge summarised the appellant’s submissions before him as amounting to an assertion “that he was telling the truth; that his story is supported by that of others; that analysis of the facts supports the proposition that he was telling the truth; and that the Tribunal member has unreasonably found to the contrary”. The appellant had also submitted that the Tribunal member “has unreasonably accepted some of the material [regarding general conditions in Georgia] and not taken sufficient account of other material”. The primary judge held that factual errors and unreasonable conclusions were not grounds of review in this Court.

10. Other submissions made by the appellant and not, for obvious reasons, separately addressed by the primary judge include an assertion that the Tribunal was not entitled to review the appellant’s case on its merits and an assertion that the Tribunal was required to take account of the view of the “Executive” before making any findings as to the state of affairs in Georgia.

11. At the hearing today the appellant appeared for himself, assisted by an interpreter. His submissions amounted to assertions that the Tribunal was wrong not to accept his evidence and not to find him credible. These submissions amount to an invitation to this Court to review the appellant’s case on the merits. Although it was explained to the appellant that such review is beyond the jurisdiction of this Court, he was not able to take the matter further.  I have reviewed the judgment of the primary judge and the reasons of the Tribunal and can discern no error in either.

12. In the circumstances I would order that the appeal be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             9 November 2001

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 November 2001
Date of Judgment:	6 November 2001