SZVGZ v Minister for Immigration

[2017] FCCA 1133

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGZ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1133

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Georgia – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.425

Applicant: SZVGZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2852 of 2014

Judgment of: Judge Driver

Hearing date: 29 May 2017

Delivered at: Sydney

Delivered on: 29 May 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth) as it applied at the time of the filing of the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2852 of 2014

SZVGZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals (Tribunal).  The decision was made on 19 September 2014. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The applicant is from Georgia and had made claims of political persecution.  Background facts relating to the applicant’s claims and the decision of the tribunal on them are set out in the Minister’s outline of submissions filed on 23 May 2017. 

Background

1. The applicant applied for a protection visa on 30 January 2013.[1]  The applicant claimed that if he were to return to Georgia he would be persecuted because of his membership of and association with a political party, United National Movement (UNM). 

   [1] Court Book (CB) 1-32.

2. Specifically, the applicant claimed:

   a)to have been involved in the United National Movement election campaign of October 2012 (2012 election). Due to his involvement with the UNM and his association with active members of the UNM, the applicant contends that the successful party in that election, the Georgian Dream, and its members, will harm him if he returns to Georgia;[2] and

   b)whilst he did not suffer any abuse or harm from the Georgian Movement prior to arriving in Australia,[3] he is on a list of "wanted people", and that he is at risk of "of death, imprisonment and abuse".[4] The applicant told the Tribunal that his family, who remain in Georgia, have been harassed and attacked by representatives of the Georgian Dream.[5]

   [2] Decision Record (DR), [2], [9].

   [3] DR, [16].

   [4] DR, [30].

   [5] DR, [9(g)].

Tribunal's decision

1. The Tribunal identified the following inconsistencies in the evidence provided by the applicant: 

   a)the residential address the applicant provided in his visa application form, which was at Tbilisi, was a two hour drive away from the Chekani village, the location where the applicant told the Tribunal he "practically lived" during the 2012 election;[6] 

   b)the applicant told the Tribunal at the hearing that he had previously travelled to Greece, Turkey and Azerbaijan in his capacity as a wrestler. This was inconsistent with the information in his visa application form which indicates that he had not travelled outside of Georgia prior to his arrival in Australia;[7]

   c)in the applicant's visa application form the applicant recorded that he could speak, read and write in the languages of English, Georgian and Russian. Despite this, when the Tribunal asked whether the applicant had read his visa application form prior to submitting it, he told the Tribunal that "he did not know English very well", and that his representative had filled out the form. The Tribunal then reminded the applicant that he had confirmed the accuracy of the evidence before the Tribunal, and also signed the application form verifying that the information was correct and accurate; ^[8]

   d)evidence as to the applicant's employment with a wine factory. There were two inconsistent statements as to this evidence:

   i)the applicant in his statement of claim identified the owner of wine factory to be GD,[9] however, he later stated at the hearing that the company was actually owned by ZA[10] and his brother; and

   ii)the applicant was unable to provide clear evidence as to whether the company was involved in producing wine from grapes or just bottling wine bought from wineries. The Tribunal described his evidence as to this fact as "vague and confusing".[11]  The Tribunal also drew to the applicant's attention that information from his business visa application in particular, a letter from the Ruji company, indicated that the company produced "materials for winemaking".[12] The applicant was granted the opportunity to respond to this evidence and he told the Tribunal that the company was also making wine and purchasing grapes.[13]

   [6] DR, [11].

   [7] DR, [11].

   [8] DR, [12].

   [9] Name has been anonymised.

   [10] Name has been anonymised.

   [11] DR, [14].        

   [12] DR, [24].

   [13] Note, the Tribunal did not attach weight to this document because it was undated, see DR [24].

2. In addition to the above inconsistencies, the Tribunal found many of the applicant's statements to be implausible, including the following:

   a)despite indicating that he had a job with the wine factory in 2007, the applicant was otherwise unemployed between 1998 and 2007. When the Tribunal questioned the applicant on this, the applicant stated that he spent that nine year period in the gym, training for wrestling. After further questions from the Tribunal, the applicant responded that his family derived income from growing grapes on their land in a village. The Tribunal found this evidence to be unlikely because the farm was in a village that was two hours away from Tbilisi. The applicant then told the Tribunal that it was his grandparents who worked on the farm and that his father would variously assist them on weekends;[14] and

   b)the applicant contended that as recently as May 2014 a former Georgian Dream candidate and now governor of Kvareli, David Keikashvili, was threatening him and harassing his family. The Tribunal did not accept this contention because independent country information indicated that Keikashvili had been sacked from his position as Governor and arrested on 25 April 2014.[15]

   [14] DR, [13].

   [15] DR, [26].

3. On the basis of the above inconsistent and implausible evidence, the Tribunal determined that the applicant was not a credible witness. Specifically, the Tribunal reasoned that it "might appear that [the applicant] created the story in order to remain in Australia".[16]

   [16] DR, [27].

4. In addition to making the above adverse credibility finding, the Tribunal did not accept that the applicant would be persecuted by the Georgian Dream party if he returned to Georgia. The Tribunal provided two additional reasons for this conclusion: 

   a)a large number of supporters from both parties (UNM and Georgian Dream) participated in the election campaign and there was no evidence to suggest that general supporters were targeted. The evidence indicates that only senior members were targeted, and the applicant's own evidence established that he was not a high profile member of the UNM; and

   b)three years had passed since the 2012 election making it unlikely that the Georgian Dream party would still be looking for the applicant with the intention of harming him.[17]

   [17] DR, [25], [35]-[37].

Present proceedings

1. These proceedings began with a show cause application filed on 15 October 2014.  The applicant continues to rely upon that application.  It is supported by a short affidavit filed with it which I received as a submission. In the affidavit the applicant asserts he was denied procedural fairness and that the standard of interpretation at the hearing was unacceptable.  He also asserts that the Tribunal failed to consider crucial issues in relation to the decision.

2. These assertions are substantially duplicated in the grounds of review: 

   1. The decision maker made a jurisdictional error by not considering all relevant claims.

   2. The Tribunal decision was affected by low standard of interpreting during the hearing

   3. The Tribunal decision was affected by non-compliance with the procedural requirements.

   Due to the abovementioned errors I was denied procedural fairness.

3. I have before me as evidence the court book filed on 11 December 2014. 

4. An immediate difficulty is that the asserted errors by the Tribunal are not particularised. Indeed, the grounds of review advanced, on their face, are meaningless without particulars. Had I been confronted with the application in this form at the outset, I would have listed it for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). The matter has had, in this Court, a somewhat complex procedural history. It is appropriate to recite that history because it details the various opportunities that presented themselves to improve the quality of the application.

5. Initial orders were made by Registrar Tesoriero on 17 November 2014.  The applicant was given the opportunity to file and serve an amended application and additional evidence, including a transcript of the Tribunal hearing.  The case was listed for callover before Judge Cameron.  On 3 March 2015 Registrar Morgan amended the orders to provide that the matter would be listed for hearing on a date to be advised administratively.

6. The matter was called over before Judge Cameron on 16 May 2016. The matter was at that time listed for a further callover on 25 May 2016.  At that time Judge Cameron ordered that any application to amend the application be made by application in a case supported by affidavit. No such application has been made. Judge Cameron also ordered the preparation of written submissions. More recently, by a letter dated 27 April 2017 the parties were advised that the matter had been transferred to my docket and had been listed for hearing today.

7. The point of this is to emphasise that over the course of the last two and a half years the applicant has had an opportunity to clarify the grounds in his application and support them by evidence.  He has not taken up those opportunities.  He told me from the bar table that there were, at times, in the interlocutory hearings interpretation problems either because a Russian interpreter had been booked rather than a Georgian one or because it was difficult to find a Georgian interpreter of good quality.

8. Fortunately, we have not encountered that difficulty today. It is correct that there are few Georgian interpreters available.  Nevertheless, today when I invited oral submissions from the applicant I found him to be highly articulate in his own language.

9. The applicant put a number of propositions to me orally in support of his application.  He told me that the Tribunal member who dealt with the case presented as being cynical at the Tribunal hearing.

10. The applicant asserts that he was asked irrelevant questions and that he was instructed to answer questions put precisely and not to deal with other matters. The applicant contends that at the end of the hearing the Tribunal enquired why he had not engaged in more detail. He also asserts that the words “child care” were not accurately interpreted at the Tribunal hearing, and that he was asked irrelevant questions about child care in any event, which I understand to be a reference to his own childhood. In essence, the applicant contends that he was not given a real hearing opportunity in conformity with s.425 of the Migration Act 1958 (Cth) (Migration Act).

11. The allegations are hypothetically matters of substance; the difficulties are that the applicant has waited until today’s hearing to make them and they are not supported by evidence. The applicant drew to my attention a particular aspect of the Tribunal’s reasons with which he has difficulty. The applicant directed my attention to [32] of the Tribunal’s reasons at court book page 102:

    As put to the applicant at paragraph 26, the Tribunal fund implausible his claims that the former Georgian Dream candidate, David Keikashcili, with whom the applicant claimed he was in conflict over the election campaign in Kvareli, was harassing his family and threatening harm to him a month after he was arrested and charged in April 2014. This claim is further undermined by the photograph of his alleged enemy Keikashvili posted on his Facebook page; and his attempt to deceive the Tribunal by suggesting that Keikashvili’s photo was accompanied by a Georgian language post about his dismissal as governor.

12. The applicant contends that David Kikashvili, referred to in that paragraph, was only detained for a day and was then released due to his connections. He told me that he became aware of those circumstances a couple of weeks after the Tribunal hearing. The essence of the applicant’s assertion is that the Tribunal made an adverse credibility finding based upon a factual mistake. 

13. The applicant told me that he did not draw the additional information to the Tribunal’s attention before it made its decision on 19 September 2014; that was about a month after the hearing.  It is impossible to say whether, if he had done so, it would have made any difference.  The Tribunal had several credibility concerns about the applicant’s claims and evidence.  As the Minister’s solicitor noted in oral argument, even if David Kikashvili was released after his arrest, it did not necessarily follow that he was in a position to threaten the applicant at the time the applicant alleged. 

14. In short, there is insufficient evidentiary basis to support the applicant’s claims of a breach of s.425 or otherwise to find fault with the Tribunal’s decision. I otherwise agree with the Minister’s submissions in relation to the grounds of review.

15. Ground 1 alleges that the Tribunal failed to consider "all relevant claims".  The applicant does not identify any claim that the Tribunal failed to consider.  Moreover, the applicant's claims, which were not particularly complex, were clearly understood and considered by the Tribunal.  It did not accept them, for the reasons it gave, and which are summarised at [5] to [8] above.

16. Similarly, ground 2 does not identify any specific defects in interpretation, nor how they could be said to have affected the jurisdiction of the Tribunal.  Further, the applicant has previously claimed to speak English (although he sought to resile from this at the Tribunal hearing, as detailed above). No evidence has been filed in support of the ground. In the absence of particularisation or evidence, the ground cannot succeed. 

17. Ground 3 asserts an unparticularised breach of “procedural requirements”. In the absence of particulars this ground is meaningless.

18. Finally, the applicant makes a general assertion of procedural unfairness. In that regard the applicant does not appear to identify any additional justiciable ground.  Rather, he complains that he was denied procedural fairness by reference to grounds 1, 2 and 3.  For the reasons given above in respect of each of those grounds, the applicant is unable to establish jurisdictional error. 

19. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by a jurisdictional error.  I will order that the application be dismissed.

20. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale as it applied at the time the application was filed.  The applicant told me that he did not know what to say in relation to costs.

21. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth) as it applied at the time of the filing of the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  6 June 2017