Gzirishvili v Minister for Immigration and Multicultural Affairs

[2001] FCA 623

FEDERAL COURT OF AUSTRALIA

Gzirishvili v Minister for Immigration & Multicultural Affairs [2001] FCA 623

ZURAB GZIRISHVILI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1060 of 2000

MADGWICK J
21 MAY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1060 of 2000

BETWEEN:	ZURAB GZIRISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	21 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondent’s 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	OF 2001

BETWEEN:	ZURAB GZIRISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N1060 of 2000

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

JUDGE:	MADGWICK
DATE:	21 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for the review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 6 September 2000, affirming the decision of a delegate of the respondent Minister to refuse the grant of protection visa to the applicant. 

2. The applicant would have been entitled to a protection visa had he been assessed to be a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Under those treaties, a refugee is any person who:

   “…owing to a 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 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

3. The application for review sets out three grounds, none of which is particularised. Firstly, it is claimed that there was a failure to observe procedures, reference being made to s 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”). Secondly, it is claimed that the decision involved an error of law and s 476(1)(e) was clearly intended to be referred to, although section 476(1)(c) was actually mentioned. Thirdly, it is said that there was no evidence or other material to justify the making of the decision. The written submission made by the unrepresented applicant refers, among other things, to ss 476(1)(g) and s 476(4)(a), presumably with reference to the third ground of the application.

   Factual background

4. The applicant is a national of Georgia, one of the former states of the Soviet Union.  He arrived in Australia on 1 July 1998 as one of a group of nine men from the same part of Georgia.  They came to Australia on visas obtained on the basis that they were sponsors of a youth soccer team coming to play in a competition in Australia.  Each of them submitted an application for a protection visa supported by a copy of an undated submission by “members of [the] Akhaltsikh [the district in question] group supporting the Gamsakhurdia Party”.  The Tribunal member involved in this matter dealt with two of these nine cases.  He also dealt with another two cases which concerned applications by sons of each of the two men whose claims he dealt with.

5. The applicant is in his mid 40s.  He claimed to fear persecution by reason of his political opinion, which supported the political beliefs of the former President of Georgia, Zviad Gamsakhurdia.  He opposes, as a neo-Stalinist, the current President and a former Foreign Minister of the Soviet Union, Edvard Shevardnadze.  The applicant claimed to have formed a small political group, not constituting a political party, in Akhaltsikh in January 1996 and to have been involved in three public rallies organised by that group. 

6. The applicant claimed that the first rally in January 1998 was broken up by police and that he was beaten about the head by them, had his teeth knocked out and was severely concussed.  The next rally, which took place on 26 May 1998, Georgia’s Independence Day, was also broken up by police and, although people were beaten, the beatings were not as severe as previously.  The applicant says he was arrested, along with several other people.  He was held for two days and then escorted home by police.   The applicant claimed that another member of his group, who was also detained on 26 May 1998, was forced to make a false confession of involvement in terrorist actions in which he implicated other members (apparently they were not specified) of the alleged group.  The applicant says that the confessor was released, and that he warned the others.  As a result, they promptly set about leaving Georgia, departing within a month.

7. The applicant claimed that the police searched his house, looking for weapons, before he left and again after he had left, in July 1998.  He said he had been in hiding after the first search until the time he left Georgia.  Arrangements had been made for the soccer team to come to Australia commencing at least as early as April 1998.  The applicant’s application to visit Australia was signed on 2 June 1998.  On the occasion of the second search in July 1998 his elder son was also detained for a time by the police.

   The Tribunal’s decision

8. The Tribunal did not accept that the applicant was part of any organised group as described by him and referred to various features of the story, which the Tribunal member thought were unlikely.  The Tribunal accepted, however, that the applicant had “Zviadist” (as pro-Gamsakhurdia views are known) sympathies, but considered that his knowledge of relevant political matters was not strong. 

9. Accepting that the applicant had been injured by police in respect of a demonstration on 3 January 1998, the Tribunal member found that as there was no group such as that claimed by the applicant and that any such group had not been involved in the organisation of that or any other relevant rally, but that nevertheless the applicant did attend it and the meeting was violently dispersed by police, with a number of people, including the applicant, being injured in “indiscriminate” violence.  The Tribunal accepted that the applicant was seriously injured, as he said.  Likewise, the Tribunal accepted that, although the applicant had had no hand in organising the rally of 26 May 1998, he had attended it, it was dispersed by police and the applicant was arrested and detained for two days, and had his house searched.

1. The Tribunal member found that there was a generally applicable law requiring permits for demonstrations and the like and that none of the meetings described by the applicant was so authorised.  The Tribunal member accepted that Zviadists tend to be refused such permits and that, while this amounts to discrimination against them, there is nevertheless, according to independent evidence, a number of political parties with Zviadist sympathies and there is in operation in Georgia a system under which periodic elections are “generally democratic”.  That is, as I understand it, although flawed by malpractice, the elections are more or less fair.  Consequently, the Tribunal member took the view that there is not such a degree of suppression of all opportunity for Zviadists, including the applicant, to express their political opinion in a legal manner and discrimination against them, as to amount to persecution for reasons of political opinion. 

2. Further, the Tribunal did not accept the applicant’s account of the events over the few days after 26 May 1998, making the point, among other things, that had one of the applicant’s supposed colleagues confessed to involvement in terrorist action and implicated other members of the supposed group, it was implausible that that person would have been released.  The Tribunal also found that, as the applicant had said that his house was not among those searched in the days immediately following the alleged confession and he was not re-arrested, the Tribunal was not prepared to accept that the applicant was among those named, if there had in fact been any confession extracted from another member of the supposed group.

   Consideration of applicant’s case

3. The applicant’s submissions refer in the first place to a burden of proof of refugee status.  This is somewhat misconceived as there is no burden of proof by an applicant for such status.  The question is whether there is material before the fact finder that enables such a finding to be made and which satisfies the fact finder that it ought to be made.  I discern no legal error in that regard on the part of the Tribunal member.

4. A reference was made to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and the continuing significance, according to Gaudron J in that case, to be assigned to an act of persecution of an applicant for refugee status when such persecution has been established. Despite a disparaging comment by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 about this, it seems to me with respect that it is nothing more than a commonsense observation of fact. Such significance has also been remarked upon by other Judges of the High Court in Abebe v Commonwealth (1998-99) 197 CLR 510 per Gummow and Hayne JJ at 578. But again, these references seem to me to have nothing to do with this case. The Tribunal member did not accept that there was ever an occasion on which the applicant was truly persecuted, although he was severely discriminated against. The reasonableness of the finding that to have one’s teeth knocked out, for participating in a political demonstration unauthorised by a State which discriminates against those holding adverse political opinions, is not a matter that gives rise to review in this Court under the restrictive regime of the Act.

5. The balance of the submissions refer to a number of factual matters, and ss 476(1)(g) and 476(4)(a) of the Act are referred to. The reference to section 476(4)(a) is, as counsel for the Minister points out, somewhat misplaced. This is not, so far as I can see, a case where the Tribunal was required by law to reach its decision, only if a particular matter was established and there was no evidence or other material from which the Tribunal could be reasonably satisfied that that matter was established. The Tribunal member was required by law to reach the decision it did only if it was not satisfied that the applicant was a refugee within the meaning of the Convention. That jurisdictional requirement, which stems from s 36(2) of the Act, does not amount to a requirement by law to reach a decision “only if a particular matter was established”. I agree with counsel for the respondent Minister that this is a case where there seems no warrant at all for the application of s 476(4)(a). In any case, as it seems to me, insofar as the Tribunal member came to factual conclusions, there was some material to support the finding made.

6. It is not to the point, therefore, that the fact might “not exist” within the meaning of s 476(4)(b).  In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, it was made very clear that:

   (1)there must be a critical fact, in the sense that the decision was “based on” it,

   (2)there must be no evidence to support the fact; and

   (3)the applicant must prove by admissible evidence that the fact does not exist.

7. Assuming that negatively stated facts may be particular facts for the purposes of s 476(4)(b), in my opinion the applicant’s submissions are misconceived.  The applicant’s submissions really amount to this: 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.

8. Further, in relation to facts which do not depend upon the applicant’s own story but are to be made by an assessment of more general conditions in Georgia, the applicant says that the Tribunal member has unreasonably accepted some of the material and not taken sufficient account of other material.  However these matters may be, and it is not for me to express an opinion, it is not a ground for review in this Court that the Tribunal member has unreasonably reached the factual conclusions which he did.  While the Tribunal member may or may not have erred factually, or may or may not have come to a conclusion which another decision maker might not have reached, these are not matters which give rise to a ground of review in this Court.

   Disposition

9. In these circumstances, it seems to me that no ground has been shown for intervention by this Court and the application will be dismissed.  The applicant is to pay the respondent’s costs.

I certify that the preceding nineteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 June 2001

Applicant appeared in person
Counsel for the Respondent:	J. Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 March & 21 May 2001
Date of Judgment:	21 May 2001