Palme, Ex parte Re MIMIA

[2002] HCATrans 437

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S277 of 2001

B e t w e e n -

APPLICANT S277/2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 12.28 PM

Copyright in the High Court of Australia

APPLICANT S277/2001 appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

GUMMOW J:   Is there an interpreter present?  We should swear the interpreter first, officer.  You will be translating from Russian to English, I understand, and English to Russian.

THE INTERPRETER:   That is correct, yes.

BENJAMIN PERKIS affirmed as interpreter:

GUMMOW J:   Now, would you tell the applicant that he has no more than 20 minutes to make what oral submissions he has, that we have already read the written submissions, but there is this extra 20 minutes – no more than 20 minutes – for oral submissions and you will translate to the Court what he wishes to say to us.  And I suggest you ask him not to go too far before you have had a chance to interrupt and translate.

APPLICANT S277/2001 (through interpreter):   First of all I want to state that my mother tongue is actually Georgian and my second preference is the Russian language, but since they were not able to find a Georgian interpreter, I will try to do my best through the Russian interpreter.

GUMMOW J:   Yes, I understand people in Georgia learn Russian in schools as well as Georgian, or at least they did so before the fall of the Soviet Union.  Yes, now what do you wish to say?

APPLICANT S277/2001 (through interpreter):   In its decision the Federal Court stated that I would be able to return to Georgia and continue my political activities there unhindered.  However, my point of view that it is not possible.  It is not possible because, for example, back in 1998 I was bashed severely and suffered a concussion of the brain and as a result I had to have surgery to my head and I am basically scared to go back there.  Back in May 1998 I was arrested again and spent two days in the confinement, detention.  One of the persons who belong to our group that I was a member of was basically forced to sign a statement that we were terrorists and that we were going to make an attempt on the President’s life.

GUMMOW J:   The President being President Shevarnadze, is that right?

APPLICANT S277/2001 (through interpreter):   That is correct.  So, as a result those members of the group who were able to at the time were forced to leave their families, leave their wives behind and basically flee the country.  Police would come and search private houses of the members and ransack the whole lot.  I saw it myself.  After my departure the police arrest my family.  They would come and search our place and also they got my elder son and bashed him up and as a result he was forced to flee the country also.  My daughter was a university student and after my elder son escaped she was evicted from the university and was not allowed to sit final examinations.

Last year the police came to our place in Georgia and asked my younger son, who was eight years old at the time, and they asked him a question, “When is your father going to come back?”  My son replied, “I don’t know.”  The police push him down the stairs.  As a result he smashed his head and spent 20 days in hospital.  One month after that my wife was sacked from her job and she was forced to divorce me, so now we are divorced.  Last year seven members of our group returned to Georgia because they were promised that nobody would touch them.  However, three months after their arrival three of those seven people were arrested and one of them disappeared; nobody knows where he might be.  After all that taken into account, all these events, how can I possibly go back there?  My health has been affected.  I can show the scars on my body I suffered as a result of all those activities.  I am sorry, I would like to show you physical evidence.

GUMMOW J:   No.  Now, can you explain that the real question in this Court is whether there is any important error at law in the Full Court of the Federal Court, not merely a factual dispute.

APPLICANT S277/2001 (through interpreter):   Yes, I understand all that.  I am actually quite well over-excited and anxious.  Perhaps my friend will be able to speak in my place.

GUMMOW J:   No, I think it is best if – just pardon me a minute.  Yes, just continue as you were before.  Do bear in mind that we have read all the papers and the question for us is whether there is this question of law.

APPLICANT S277/2001 (through interpreter):   I firmly believe that there has been an error of law made, but I am not able to explain how.  I would rather this person here, my friend, to put it in my place.

GUMMOW J:   Yes, very well.

THE INTERPRETER:   Sorry?

GUMMOW J:   No.  We have read the papers, which are very detailed.

APPLICANT S277/2001 (through interpreter):   Well, the Federal Court made a mistake, made an error of law, because the Federal Court told me or stated to me that I would be able to return to Georgia but, in actual fact, I cannot, taking into account what is happening there now.

GUMMOW J:   Yes, very well.  Is there anything else?

APPLICANT S277/2001 (through interpreter):   Well, if possible, you could consider the case and perhaps look at my predicament, taking that into account.

GUMMOW J:   Thank you.  Thank you, Mr Perkis.  We will take a short adjournment.

AT 12.44 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.47 PM:

GUMMOW J:   We do not need to call on you, Mr Smith.  The Court is indebted to you, Mr Perkis, for your assistance in translating.

The applicant, a Georgian national, seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia following rejection of his claim of entitlement to refugee status by reason of a well‑founded fear of persecution.  His claim was that his fear was based upon membership of a political group opposed to the current government of Georgia. 

The Tribunal rejected the applicant’s claim that he had been a member of any organised political group.  It accepted that the applicant had been injured by police officers during the dispersal of a public rally that he had attended.  The Tribunal found that the applicant was injured, not because of his political opinions, but because of his attendance at the rally, which was an illegal rally under Georgian law.

The applicant has submitted in his written materials and orally, through a translator, that the Tribunal was wrong to reject his claims of membership of a political group and its persecution by the Georgian authorities.  This is a submission that the facts as the applicant asserted them should have been accepted by the Tribunal. 

In these circumstances, the Federal Court was correct in law not to substitute different findings of fact.  Moreover, this Court cannot and will not intervene now to do so.  It follows that the appropriate order here is that the application for special leave must be dismissed with costs.

MR SMITH:   Your Honour, there was a question of reserved costs of the last occasion.

GUMMOW J:   Yes, that is right.  Including any reserved costs.  The Court will adjourn until 2.10 pm.

AT 12.50 PM THE MATTER WAS CONCLUDED