Gzirishvili v Minister for Immigration and Multicultural Affairs

[2001] FCA 867

FEDERAL COURT OF AUSTRALIA

Gzirishvili v Minister for Immigration and Multicultural Affairs [2001] FCA 867

MIGRATION – review of decision of Refugee Review Tribunal (“Tribunal”) – where no particulars of grounds of review given

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

LEVANI GZIRISHVILI v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
N1452 of 2000

STONE J
SYDNEY
6 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1452 of 2000

BETWEEN:	LEVANI GZIRISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	6 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

the application be dismissed with costs.

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 1452 of 2000

BETWEEN:	LEVANI GZIRISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	6 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, Mr Levani Gzirishvili, a citizen of Georgia, arrived in Australia on 18 April 1999 ostensibly as part of a Georgian sailing team coming to Sydney to prepare for the 2000 Olympics. On 27 May 1999, he applied to the respondent (“the Minister”) for a protection visa to remain in Australia. His application was refused by the Minister’s delegate (“Delegate”) on 22 June 1999. This refusal was upheld by the Refugee Review Tribunal (“Tribunal”) on 17 November 2000. Mr Gzirishvili now applies under s 476(1) of the Migration Act1958 (Cth) (“the Act”) for review of the Tribunal’s decision.

2. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees done at Geneva, as “amended” by the 1967 Protocol Relating to the Status of Refugees done at New York (“the Convention”). Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   DECISION OF THE TRIBUNAL

3. The Tribunal considered the applicant’s protection visa application, his written submissions in support of that application, his written submissions in support of his application for review and the oral evidence given before the Tribunal on 6 June 2000.

4. The applicant entered Australia on a Subclass 421 visa that is normally given to members of national sporting teams. The applicant disclaimed all knowledge of the nature of this visa. He claimed that the visa had been obtained by the company he had retained to obtain the visa and that he was unaware of how it was obtained. He said that he had never been a sportsman.

5. The applicant claimed that his father, Zurab Gzirishvili, was a member of the Group of Supporters of Zviad Gamsakhurdia and that as a result of his father’s political activities he feared persecution. The applicant’s father had also applied for a protection visa. Because of discrepancies between their statements, the Tribunal was sceptical about the claimed father-son relationship but ultimately, was prepared to accept the existence of this relationship. There were also inconsistencies between the details of the applicant’s history as stated in his application and before the Tribunal.  These inconsistencies related mainly to the applicant’s employment history, his means of support in the absence of employment and the extent of his political interest and involvement.

6. The applicant claimed that, as a result of his father’s activities, his house had been searched on three occasions and that, on each of these occasions, he had been questioned and threatened by the police. He also claimed that because of his father’s activities he had been unable to find employment. At the Tribunal hearing, he claimed that, on one occasion, he had been beaten by the police; this claim was not mentioned in the applicant’s written statements made before the hearing.

7. The father’s application was refused by the Delegate, and this refusal was upheld by the Tribunal. After the father’s case had been determined, the Tribunal wrote to the applicant inviting comment. The Tribunal pointed out that as the applicant claimed to fear persecution because of his father’s activities, the rejection of his father’s claims could lead to the rejection of the applicant’s claims. Neither the applicant nor his adviser responded.

8. In considering the father’s application, the Tribunal had already rejected the father’s claim to have held a leadership role in the Group of Supporters of Zviad Gamsakhurdia. The Tribunal had accepted that the applicant’s father, although not of current interest to the authorities, had been the victim of violence and had been arrested as a result of his participation in political rallies.  In its reasons in this matter, the Tribunal noted that further doubt was cast on the father’s claims by his son’s limited knowledge of the group and its activities.  As the son was over 18 years of age at the time of the alleged events, the Tribunal expected the son would have more knowledge of the group and its activities.

9. The Tribunal rejected the applicant’s specific claim that he had been unable to find employment because the evidence in relation to this was inconsistent. Different accounts of the applicant’s and his father’s employment histories were given in the applicant’s application, his father’s application and the oral evidence given by each of them at their respective hearing. The Tribunal noted, in particular, that although the applicant had claimed that he was unable to obtain employment because of his father’s political opinions, his father himself had remained employed until his departure from Georgia.

10. The Tribunal rejected the applicant’s claim that he had been beaten by police. It concluded that, had such assaults occurred, the applicant would have mentioned them in the two statements prepared prior to the hearing.

11. Based on the above findings, the Tribunal rejected the applicant’s claims that his house had been searched and that the police had questioned him about his father. In any event, the Tribunal stated that police questioning, even if accompanied by verbal abuse and threats, would be insufficient to constitute persecution for the purpose of the Convention.

12. The Tribunal noted that no other members of the applicant’s or his father’s family had been harmed since the applicant’s arrival in Australia. In making this observation, the Tribunal rejected the applicant’s claim that his family would not have informed him had such harm occurred. Thus the Tribunal concluded that, even if it had accepted that the applicant’s father was at risk because of his political opinions, it would conclude that the applicant would not be at risk by virtue of being a member of the same family.

13. Finally, the Tribunal noted that the applicant delayed departing Georgia for some time after the events about which he complained. The Tribunal pointed out that the applicant’s passport was granted in November 1998 and his visa to Australia was granted on 17 March 1999 yet the applicant did not leave Georgia for some four weeks after the latter date. It reasoned that if he had been in genuine fear of persecution he would have left the country earlier. It concluded on the basis of the evidence as a whole that the applicant was not a person to whom Australia has protection obligations under the convention.

    APPLICATION FOR AN ORDER OF REVIEW

14. This matter was originally set down for hearing on 17 April 2001. On that date, however, the applicant advised the Court that his father had lodged an application with this Court for the review of the Tribunal’s decision refusing the father’s application for a protection visa. In the circumstances, on the applicant’s request, I adjourned the hearing pending the disposition of his father’s application for an order of review. On 21 May 2001, Madgwick J dismissed Mr Zurab Gzirishvili’s application for review. As his Honour found no reviewable error in the Tribunal’s handling of the father’s case, there is no need to consider his Honour’s decision for present purposes.

15. The applicant seeks review of the Tribunal’s decision on the following grounds:

    1. Procedures the were [sic] required by the Act to be observed in connection with the making of the decision were not observed (s.476(1)(a)).
    2. The Decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s.476(1)(c)).
    3. There was no evidence or other material to justify the making of the Decision.

16. These grounds were not particularised nor did the applicant provide any written submissions. At the hearing today, the applicant, who appeared for himself, was not able to point to any aspect of the Tribunal’s reasons that could support one of the nominated grounds of review. His submissions amounted to a complaint that the Tribunal did not believe him and that he would like another opportunity to convince the Tribunal of the truth of his story.

17. The respondent’s written submissions were prepared without the advantage of any particulars of the applicant’s grounds of review of the Tribunal’s decision and, understandably, were confined to general observations about the grounds of review and assertions that the applicant had not established any of the elements of a successful claim.

18. I have reviewed the Tribunal’s reasons for its decision. In summary the Tribunal found that the applicant claimed to fear persecution because of his father’s political involvement with the Gamsakhurdia party.  At all times the applicant has accepted that his claim for a protection visa was based on the alleged consequences of his father’s political involvement. That being so, the Tribunal’s rejection of the father’s political involvement (and the upholding of that decision by this Court) was fatal to the applicant’s claim.  However, in addition to this finding, the Tribunal also made critical findings about specific elements of the applicant’s claim. In particular it found that even if the father’s involvement had been as alleged, there was no real chance that the that his family, in particular his son, would for that reason be of any interest to the authorities or be subject to persecution for a Convention reason. 

19. The Tribunal also rejected the applicant’s claims that he was prevented from finding permanent employment and that he had been detained and assaulted. It did so because of inconsistencies in the evidence presented and prevarication in the oral evidence. In my opinion these findings were open to the Tribunal on the evidence. In the Tribunal’s reasons I can find no evidence of any breach of the procedures required by the Act or any incorrect interpretation or application of the relevant law. In relation to the claim under s 476(1)(g), the applicant has not pointed to any fact material to the Tribunal’s decision that does not exist or to any matter that was required by law to be established. Accordingly neither of the requirements of s 476(4)(b) have been established and the ground has not been made out. The applicant’s submissions made before me today amount to an invitation to review the Tribunal’s decisions on the merits that I must decline.

20. For the reasons set out above the application must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             9 July 2001

Counsel for the Applicant:	The applicant appeared in person, assisted by an interpreter
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 July 2001
Date of Judgment:	6 July 2001