SZVZD v Minister for Immigration
[2017] FCCA 1973
•22 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVZD v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1973 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal denied the Applicant procedural fairness or failed to consider all his claims – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.48B, 417, 424A, 425 |
| Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 | ||
| Applicant: | SZVZD | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 61 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 5 December 2016 |
| Date for Last Submission: | 30 January 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 61 of 2015
| SZVZD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 15 December 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Georgia, arrived in Australia in May 2013 as the holder of a Subclass 400 temporary work visa. He applied for a protection visa on 5 June 2013. He had the assistance of a solicitor/migration agent from the Refugee Advice and Casework Service.
In his protection visa application the Applicant claimed that he had been the managing director of a named family business from December 2004 until May 2013. He claimed to fear that two former political associates and business partners who worked in the government would have him killed for not giving them “more share of [his] business”.He claimed that he had been beaten up and arrested by the police on the order of these two powerful men and falsely accused and charged with weapons and drug offences. He claimed he was given one day to gather documents to surrender the family business to his associates, but instead used this time to escape from Georgia with the assistance of a prominent friend.
The Applicant claimed to fear he would be arrested, jailed and beaten until he signed a statement saying the business was not his and that then he would be killed (but that his death would be made to look like a suicide). He claimed the authorities would not help him because they were trying to kill him. He foreshadowed providing more information in a statement.
The Applicant subsequently provided the Department with a statutory declaration dated 28 October 2013 elaborating on his claims to fear harm on the basis of his failure to cooperate with two former business associates whom he claimed were now in the ruling party in Georgia and wanted to kill him.
He claimed that after he left university he became involved in politics, that he joined the New Rights Party in 2002 and was in charge of a regional youth group, involved in demonstrations and other activities and in the 2003 election campaign. He claimed that through his political activities he met two named men (his associates). He left the New Rights Party “after the revolution” and did not engage in political activities from 2003 to 2010. He claimed he became sole owner of the family business and property in 2005.
The Applicant claimed that in 2006 his associates indicated that they would let him win a particular government tender and that he would also win other tenders if he gave them 30% of his business. He agreed to this proposition. A contract was drawn up to this effect between the Applicant and nominees for his associates. The nominees also worked in the business, which prospered.
The Applicant claimed that in 2010 he joined the United National Movement and assisted one of his associates to win an election. However in April 2012 his associates joined the Georgian Dream Party. He claimed that he refused their invitation to join and they warned him he would have “great problems” if the Georgian Dream Party won the election. He claimed that two weeks after the 1 October 2012 election (which the Georgian Dream won) he started to receive telephone threats and abuse.
The Applicant claimed that on 26 October 2012 police came to his business premises and stated that they were instructed to check all the business documentation. He claimed that when he asked his associates to explain this situation, they told him they were going to take over the business. He claimed he found that his business and personal bank accounts were frozen.
The Applicant claimed he made a counteroffer to allow his associates to increase their share in his business while he maintained an interest and role, but that this offer was refused. He claimed that he was then beaten up by four people who said they had been sent by his associates and that his father was beaten up a week later. He claimed that in December 2012 he spoke to one of his associates on the telephone and said he still did not agree to their conditions.
The Applicant claimed that the next day (14 December 2012) he was taken by government officers to the central police office and warned that he would be arrested if he did not give his share of the company to his associates. He claimed he was forced to sign a confession in relation to weapons and drug offences and that they would arrest him on the basis of this confession if he did not agree to give up his business. He claimed he was given two days to provide company ownership documents, but instead made arrangements to leave Georgia with the help of a friend who was a prominent politician.
The Applicant claimed that before he left Georgia he was able to obtain his signed confession from the police file through the help of the friend, who also assisted him to depart through the airport.
In his statutory declaration of 28 October 2013 the Applicant also claimed that while officially he was still the proprietor, one of his associates had taken over running his company. He claimed that they still needed him to transfer ownership officially, but that he would refuse to do so. He claimed that as long as he refused to do this they would try to kill him and that even if he transferred the company they would try to kill him so that he would not expose their corruption or try to sue them. He claimed they would arrest him immediately if he returned. He referred to a “summons document” dated 9 July 2013 he claimed his father had sent him. He also claimed that the friend who had helped him had later faced false charges, but had been released, granted an amnesty, and was still in office. He referred to a Georgian TV video of the arrest of his friend.
The Applicant attended a departmental interview in February 2014. According to the delegate’s decision, at the interview the Applicant claimed that his associates could not seize the company or strip the assets as the records were beyond their control in the National Register. He also claimed that they would not forge documents because this might cause them problems in the future.
The Applicant’s adviser provided post-interview written submissions of 26 February 2014 in which it was claimed that the Applicant feared harm on the basis of his actual and imputed political opinion and as a member of the particular social group of high-profile and successful Georgian business owners. The submission addressed issues raised by the delegate, including why the Applicant’s associates needed him to transfer ownership and could not simply seize the business and forge any necessary documents. Reference was made to his evidence that his associates could not gain access to the Georgian National Registry of businesses and assets. It was explained that the Applicant’s instructions were that the Registry held the original documents and that it could not be compromised. He claimed that without his physical presence and consent, widespread corruption (which would be evident in the future) would be necessary to transfer ownership.
The submission also responded to the delegate’s concern about the absence of any documentary proof of the Applicant’s claimed ownership of property or the company. It was claimed that he could not get proof because under the Georgian Code he had to make a request to the National Registry in person. He claimed that his father had unsuccessfully tried to get such documents.
The submission attached untranslated Georgian language documents, including what was said to be a copy of the confession the Applicant claimed he was forced to sign which was highlighted at the point which was said to state (in Georgian) the Applicant’s profession as the managing director of a named company; a news article said to state that one of the Applicant’s associates had been accused of criminal activity and had extensive criminal networks and contacts; and certified copies of documents said to have been provided to the delegate in support of the application.
The delegate refused the application, finding that the Applicant’s case relied on a chain of events that had become increasingly less credible and concluding that he had fabricated a series of claims based around his travel dates as a means of supporting his protection visa application.
Application to the Tribunal
The Applicant sought review by the Tribunal.
On 3 September 2014 the Tribunal wrote to the Applicant through his migration agent inviting him to attend a hearing on 13 October 2014. The letter advised that if the Applicant wanted the Tribunal to consider any documents or written arguments they should be in, or translated into, English.
On 8 September 2014 the Tribunal wrote again to the Applicant (through his agent), noting that he had provided a number of untranslated documents to the Department that the Tribunal was unable to read and consider. It also advised him that the only documents on the departmental file were those attached to the adviser’s submission of 26 February 2014 and that while there was a reference to documents emailed to the delegate earlier, they did not appear on the departmental file. The letter stated that if the Applicant wanted the Tribunal to have regard to any documents other than those attached to the submission of 26 February 2014 they should be provided to the Tribunal prior to the hearing. A Tribunal Casenote of 24 September 2014 records that the adviser clarified with the Tribunal that she believed she knew which documents had been emailed to the delegate.
On 8 October 2014 the Applicant’s advisers provided a pre-hearing submission to the Tribunal, setting out the Applicant’s claims, addressing issues raised in or by the delegate’s decision and attaching copies of the Applicant’s statutory declaration of 28 October 2013 and the submission of 26 February 2014. The Applicant was said to maintain the claims he made in his statutory declaration as detailed in the departmental interview. He was said to fear violence and intimidation at the hands of political opponents and former business partners, Georgian security forces and individuals acting at the behest of or in support of political groups opposed to the United National Movement of which he was a supporter. He claimed that his fears were elevated in his home town, where he was well-known to local politicians, police and community members.
The submission suggested that the harm feared by the Applicant was consistent with harm he claimed he had suffered in several incidents following earlier elections in Georgia, including his arbitrary detention and physical ill-treatment and the subsequent forcible appropriation of his business premises. The adviser also made submissions about politically motivated intimidation and coercion in Georgia.
The adviser stated that the Applicant was attempting to procure translations of the documents on the departmental file and indicated that they would endeavour to provide these to the Tribunal when available. It was foreshadowed that further documents may also be provided in support of the application. In an attached “declaration” the Applicant stated that this submission accurately presented his claims.
Subsequently, the adviser provided a disc containing a segment from a Georgian TV show that the Applicant wanted to play and have translated at the hearing.
The Applicant attended a Tribunal hearing on 13 October 2014 and an adjourned hearing on 3 December 2014. The only evidence before the Court of what occurred in those hearings is the Tribunal’s account in its reasons for decision and the mention of the hearing in the adviser’s post-hearing submissions of 10 December 2014.
The submission of 10 December 2014 addressed the circumstances in which the protection visa application and original statutory declaration had been prepared and concerns said to have been raised at the Tribunal hearing, including in relation to the inconsistency between the Applicant’s evidence that he retained legal ownership of the family company (as claimed in his October 2013 statutory declaration and the adviser’s submission of 26 February 2014) and his oral evidence to the Tribunal that 3 to 4 months after his May 2013 arrival in Australia his father had told him that all the shares in the family company had been transferred out of his name and that his name was no longer on any ownership papers. The adviser’s response to this inconsistency repeated the Applicant’s oral evidence to the Tribunal as recorded in the Tribunal decision. It was stated that the Applicant instructed that from the time he could no longer gain entry to the company premises (October 2012) he no longer considered himself to be the owner of the company, that his associates were not willing or able to forge documents transferring his 70% ownership while he was in the country because he would be able to commence a legal action, but that since his departure they had been able to forge the documents in his absence. He claimed that if he was not at risk and returned to Georgia he could commence a legal challenge.
The Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s claims as essentially claims that he had been politically involved and formed relationships with various people and that after he took over his father’s business he gave a share of that business to his friends (the associates) who had positions in the administration, in order to win contracts and tenders. It recorded that he claimed he was invited by these friends to join another political party, which he refused, and that after that party won the 2012 elections, he had been subjected to threats, beatings and harassment, including at a police station. He also claimed his business accounts had been frozen and that subsequently his business had been taken over. He claimed his former friends had demanded that he transfer the business to them and threatened to kill him if he refused; that he had been forced to sign a confession relating to false charges; and that a summons had been issued against him. He claimed that he would be imprisoned and killed for refusing to hand over the business and to prevent him from exposing the corruption of high officials and also to stop him suing the officials. The Tribunal recorded that the Applicant claimed that he had been able to escape Georgia with the help of a prominent friend who had subsequently been arrested, but later granted an amnesty. The Tribunal stated that the Applicant had added to these claims in his interview and in written and oral evidence to the delegate and the Tribunal.
The Tribunal accepted that the Applicant was a national of Georgia. However it found that he was not a credible witness. It gave detailed reasons for this finding. The Tribunal stated generally that the Applicant had provided vague answers in response to questions (at the hearing) and had repeatedly cited information in his written submissions rather than providing responses to the questions posed. It also had regard to a number of inconsistencies and deficiencies in his evidence.
The Tribunal considered the Applicant’s oral claim to it that the business register had been falsified and the family business transferred and that it was no longer in his name. It recorded that initially he had been unable to state when this had happened, but that when pressed had said that his brother had told him about the business transfer 3 to 4 months after he came to Australia. The Tribunal was of the view that it was unclear why the Applicant would be unable to state when this occurred, given that the transfer of the business was central to his claims.
The Tribunal found that it was of considerable concern that the Applicant’s written claims to the delegate and to it had been that he continued to own shares in the business. It recorded that the adviser’s written submission of 26 February 2014 suggested that the associates owned 30% of the shares in the company and that the Applicant owned the balance and that his written evidence was that it would be very difficult to transfer the remaining shares or falsify the necessary documents because his associates did not want to be caught. The Tribunal found that the Applicant’s subsequent oral claim to it that the business had in fact been transferred shortly after his arrival in Australia contradicted his earlier evidence (which had been submitted after the date of the claimed transfer) that he still owned a substantial part of the business and that it would be hard to falsify the transfer. This was so notwithstanding that such claims were fundamental to the Applicant’s case.
The Tribunal considered the Applicant’s explanation for this inconsistency. He claimed that his adviser had made mistakes. The Tribunal found that this contradicted the Applicant’s initial evidence to it that he was familiar with the contents of his application and that all the information in it was correct and accurate. The Tribunal was also of the view that the Applicant had had ample time since the application and since various submissions were made to ensure the accuracy of the information submitted on his behalf.
The Tribunal was also concerned about the lack of documents to support the Applicant’s claimed business involvement. It observed that the Applicant had repeatedly informed the delegate that he could not obtain documents from the authorities in Georgia if he was not physically present in the country but, by contrast, he had claimed his birth certificate had been obtained by his friend without his knowledge. The Tribunal acknowledged that the Applicant had also told it that all the documents were in his office, to which he had no access. However, in the absence of a formal statement from the relevant organisation responsible for business records in Georgia, the Tribunal did not accept that the Applicant’s presence in Georgia was required to obtain evidence of his business ownership and dealings. The Tribunal was also of the view that even if the Applicant had no access to his office, other documents relating to the operation of the business and the Applicant’s involvement therein should have been available, such as media articles, advertising materials, copies of communications with third parties etc. In the circumstances of this case the Tribunal was of the view that the lack of any documentary evidence relating to the Applicant’s business ownership, business involvement and the operation of the business since his departure for Australia cast doubt on his claims.
The Tribunal also had regard to the fact that while the Applicant claimed to have formed good connections with various political leaders, he had presented no evidence from such persons in support of his claims. The Tribunal was of the view that such evidence should have been available to the Applicant. It acknowledged that documentary evidence was not always available, but was of the view that in the circumstances of this case the Applicant should have been able to present some verifiable documentary evidence to support his claims.
In addition, the Tribunal had regard to discrepancies between the Applicant’s oral evidence to it and his statements in his application form relating to significant matters. For example, while in his written statement and his oral evidence to the Tribunal the Applicant had stated that he worked in his business until a specified date in October 2012, on his application form he stated that he continued to work as managing director in his business until May 2013.
In addition, while the Applicant claimed to the Tribunal that he went into hiding for months before his departure for Australia, moved around from December 2012 and stayed at a friend’s place until he left the country, on the application form he had stated that he continued to live at his own address until his departure for Australia. It considered the explanation that he considered his home address to be his residential address as his relocation was only temporary, but had regard to the fact that the question on the application form was not about permanent or temporary residence, but about actual residence. It was also of the view that the Applicant’s experienced migration agent who assisted him with the application would have been aware of this.
Insofar as the Applicant had told the Tribunal at the hearing that his agent had made mistakes on the application form and that his “original” form contained different information, the Tribunal considered his claims that he completed the forms in Georgian and had them translated into English and provided information to his agent through an Italian interpreter. However the Tribunal also had regard to the fact that at the start of the hearing the Applicant had assured it that he had read his visa application form and was familiar with its contents and that the information in it was correct and accurate. The Tribunal also noted that the discrepancies in question related to dates and periods on the application form, rather than to complex claims in the accompanying statement. The Tribunal was of the view that it was not apparent why there would be such significant errors on the application form relating to such matters. It was not convinced that the Applicant only recalled the errors in his application when faced with inconsistencies.
The Tribunal also had regard to numerous other concerns about the Applicant’s evidence, including the fact that he had repeatedly told it that he joined the New Rights Party (NRP) in 1999, when the information before the Tribunal was that the party was formed in 2000 (and his written claim had been that he joined it in 2002). It also had regard to the fact that the Applicant’s oral evidence that the NRP was formed around 1993 or 1995 was not correct. Given the Applicant’s claimed significant involvement with this party, the Tribunal would have expected him to have such information. It considered the Applicant’s explanation that he was nervous and joined the NRP in the year he completed university (2002), but was not convinced that nervousness or forgetfulness explained the error, particularly in light of the Applicant’s ability to recite the precise dates of other events.
The Tribunal also had regard to the fact that while in his oral evidence the Applicant had claimed that in 2010 he headed an election office and was chair of the election campaign and responsible for local area elections for the United National Movement, he had not referred to any particular position in that party in his written claims.
In addition, the Tribunal took into account the fact that the Applicant did not recall correctly the percentage or number of seats won by the UNP in the 2012 elections. As he claimed to have had significant involvement in these elections, the Tribunal would have expected him to have a better knowledge or recollection of how the party performed during the elections.
The Tribunal had regard to the fact that the Applicant could not recall even a rough date for the first beating he claimed he experienced (although he recalled the date of a claimed second beating precisely). It also had regard to the fact that the Applicant said that he did not go to the hospital after the first beating and that a doctor visited him, whereas in his statutory declaration he had claimed that he went to the hospital with his brother.
The Tribunal took into account inconsistencies in the Applicant’s evidence about how long he was given by police to collect business documents. It also found that it made little sense to force the Applicant to sign a false confession relating to drugs and firearms possession so people would have control over him and to force him to hand over the business (as he claimed), rather than to have him sign business transfer documents. Insofar as the Applicant suggested that transfer papers had to be signed before a notary and that it was too late in the day to go to a notary’s office, the Tribunal did not consider it plausible that if the purpose was to force the Applicant to transfer the business, the police or others could not have made the necessary arrangements to ensure a notary was available to witness the transfer or to arrest the Applicant earlier in the day at a time a notary would be available. The Tribunal considered that the Applicant’s description of these events was implausible.
The Tribunal found that the Applicant’s claims about the falsification of documents were unconvincing. It recorded that he had claimed that the people seeking an interest in his business did not want to falsify transfer documents because they did not want an investigation and did not want the falsification and their involvement to be obvious. However he later claimed that now he was outside the country they had falsified the documents. The Tribunal found that it was not apparent why these persons were unwilling to falsify the documents when the Applicant was in Georgia, but were willing to do so once he left the country. The Tribunal considered his explanation, but found that it was not obvious why he could only complain about such matters when within Georgia and not from outside the country. Insofar as the Applicant suggested that they had the false confession they could use against him, the Tribunal observed that that could have been done while he was in the country.
The Tribunal concluded that “[w]hile most of these matters on their own may not be fatal to the application,” the combination of these matters was indicative of the Applicant’s lack of credibility in relation to his claims.
The Tribunal considered the Applicant’s repeated claim that he could not communicate with his agent and that there may have been errors in translation. However it had regard to his assurance at the start of the hearing that he was familiar with the content of the application, that it was correct and accurate and that it had been translated to him. It noted that it was not until the Tribunal pointed out inconsistencies in the evidence that the Applicant suggested that the information in his application was not accurate. The Tribunal acknowledged that a different interpreter may have been used when the Applicant communicated with his migration agent, but was of the view the Applicant had had ample time and opportunity to communicate with his representative, to familiarise himself with the application and to ensure it was correct. It did not accept that the inconsistencies it had referred to were caused by communication difficulties between the Applicant and his representative.
The Tribunal also considered the Applicant’s claim that he made “technical errors” because he was stressed because of the matters referred to in his application and family issues. The Tribunal did not accept that the Applicant’s nervousness was the reason for the inconsistencies it identified. It noted that no medical evidence had been presented to indicate that the Applicant was unable to present evidence or that he had any health issues that prevented him from recalling events. It stated that it had made allowances for any errors due to interpreting, including the fact that the interpreter (for the hearing) was only available by telephone.
More generally, the Tribunal had regard to the fact that the Applicant did not depart Georgia until May 2013, some time after he claimed that problems had started and he been beaten, harassed, lost access to his business and money, threatened and warned. The reference in this part of the Tribunal reasons to a claim that the Applicant’s problems started in “late 2011” (rather than late 2012) is clearly a typographical error of no significance. The Tribunal recorded that the Applicant suggested that it took him six months to get an Australian visa. The Tribunal was of the view that if the Applicant had experienced these events, he would have taken the first available opportunity to leave the country. It noted that the Applicant had previously travelled to Turkey on several occasions and was of the view that he could have done so much more quickly and easily (rather than waiting for the visa). The Tribunal was of the view that even if the Applicant believed that there were Georgian criminals in Europe and Turkey, going to any country outside Georgia as a first attempt and then making arrangements to travel to a safe third country would have minimised any risk of harm. It found that the fact that the Applicant waited six months (that is, from late 2012) without taking adequate steps to remove himself from harm suggested that he had not been truthful in his evidence.
The Tribunal acknowledged that the Applicant had provided a substantial amount of documentary evidence, including country reports, which may indicate that those who opposed the political regime in Georgia may experience some form of harassment or harm. It also accepted that a person named as the Applicant’s friend had been arrested. However while the Tribunal accepted this evidence and the Applicant’s claims about the situation in Georgia, for the reasons it had stated, it did not accept that these matters had affected, or would affect, the Applicant because it did not accept his claims relating to the reasons he would be targeted or persecuted.
The Tribunal had regard to the copy of the signed confession provided by the Applicant. It expressed concern about the Applicant’s ability to obtain a copy of his signed confession, given his claimed inability to obtain any verifiable documents at all relating to his business or other events he described. It also had regard to information indicating that fraudulent documents were readily available in Georgia and to the Applicant’s own evidence that documents could easily be fabricated and his claim that documents relating to his employment (for his Subclass 400 visa application) had been fabricated. In the circumstances the Tribunal did not accept that the confession was a genuine document or of any probative value and gave it no weight.
The Tribunal concluded that it had formed the view, on the basis of inconsistencies in the Applicant’s evidence and the absence of any documentary evidence relating to his employment or supporting his claims, which the Tribunal believed should have been available to him, that the Applicant had not been truthful in his application. Overall, it found his claims to be “nothing but mere assertions”. It rejected his evidence.
The Tribunal did not accept that the Applicant had any political involvement from 2002 or from 2010 as claimed; that he associated with others who had political affiliations or aspirations; that he was involved in campaigning, managed an electoral office or had any involvement in any other political activities; that he had business dealings with any person who had political connections or occupied any party or political post after the 2012 elections; that he was subjected to pressure to transfer his business to third parties; that he was threatened, beaten on two occasions, denied access to his business premises; that his bank account was frozen; or that he was in any way intimidated or physically assaulted. Nor did the Tribunal accept that the Applicant was forced to sign a confession or that false cases had been brought against him. It did not accept that the Applicant went into hiding before departing Georgia or that he left the country to avoid harm. It did not accept any of the matters to which the Applicant referred in his application and rejected the entirety of his claims.
On this basis the Tribunal found that there was no real chance that the Applicant would be persecuted for any Convention reason or combination of reasons (including political opinion, membership of any particular social group or any other reason) and that he did not have a well-founded fear of persecution.
For the same reasons, having rejected the Applicant’s claims, the Tribunal found that it followed that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Georgia there was a real risk he would suffer significant harm. The Tribunal was not satisfied the Applicant met the complementary protection criterion.
The Tribunal affirmed the delegate’s decision.
These Proceedings
The Applicant sought review by application filed in this court on 12 January 2012. The grounds in the application are discussed below.
The Applicant did not file a transcript of either Tribunal hearing, pre-hearing or post-hearing written submissions as provided for in orders made by the Court. However he made oral submissions which I have considered.
I note first that there were some difficulties arranging a suitable Georgian-speaking interpreter for the hearing. In his application the Applicant requested a Georgian interpreter. Apparently because there was no Sydney-based Georgian-speaking interpreter available on the first hearing date, an Italian-speaking interpreter was provided by the registry. Material in the Courtbook indicated that, as the Applicant’s solicitor had informed the Department, Italian was his second language. However it became apparent from the Applicant’s initial responses at the start of the hearing that his spoken Italian may not be adequate for him to participate in a hearing. The hearing was adjourned.
On the next scheduled hearing date a Sydney-based Georgian-speaking interpreter was provided. However the Applicant and this interpreter were acquainted. The hearing was adjourned. On the third scheduled hearing date an interpreter who was apparently held out to the registry to be a Georgian-speaking interpreter participated by telephone link. However, shortly after the hearing started, this interpreter claimed to have insufficient Georgian and indicated that she wished to proceed in Russian. The Applicant had previously told the Court that he did not speak Russian. The hearing was again adjourned.
Ultimately the hearing was conducted with the assistance of a Georgian-speaking interpreter based outside Australia who participated by way of telephone link. However I am satisfied that the Applicant was afforded a proper opportunity to participate in the hearing. As indicated, he was also given the opportunity to file post-hearing submissions (and granted a requested extension of time in that respect), but he did not do so.
Issues raised in oral submissions
It is convenient to consider first the issues raised by the Applicant in oral submissions. He raised several concerns about the Tribunal’s approach to the untranslated documents he provided in support of his application.
The Applicant asserted that the Tribunal had not taken into account the documents he provided which were not translated into English and took issue with such an approach. He submitted that the Tribunal could have ordered translations and also could have verified whether the documents were genuine or not, in particular by telephoning the number of a police inspector referred to in what he said was a Georgian summons document he provided to the Department.
He expressed concern that the Tribunal did not accept his documents as genuine. This appears to be a reference to the Tribunal’s finding about the signed confession. He also took issue with what he understood was the Tribunal’s failure to accept his evidence that the birth certificate and other documents he submitted to obtain the visa on which he travelled to Australia were not genuine. He also claimed that it did not take into account the birth certificate he later submitted.
It appears from the Courtbook (and a bundle of Georgian language documents tendered by the First Respondent) that the Applicant provided documents to the delegate referred to in his statutory declaration of 28 October 2013, being a Georgian birth certificate and national ID card; a copy of what was said to be a “summons document” dated 9 July 2013; a video of a Georgian TV report of the arrest of a prominent friend; and a copy of his signed confession. There are no translations of any such documents in evidence in these proceedings.
In his reasons the delegate recorded that at the interview he had advised the Applicant that any evidence or documents must be presented in English to be considered and that he had agreed to the agent’s request for additional time to provide further documents and a submission.
No translations were provided to the Department. Rather, in the written submission to the Department of 26 February 2014 the Applicant’s adviser referred to independent country information about Georgia (in English) and also explained that the Applicant had instructed that in his signed (untranslated) “confession” (a highlighted copy of which was provided) he was described as Managing Director of a named company. This was said to illustrate the Applicant’s role and involvement in the family company in circumstances where it was claimed that his instructions were that he was unable to obtain proof of ownership of his company or assets because under the Georgian Code he had to be physically present in Georgia to attend the National Registry personally to complete the necessary forms.
In the submission, the adviser acknowledged that there were “issues to inspection” of the signed confession as it was in Georgian and there were said to be no qualified Georgian translators in Australia. The adviser did not ask the delegate to obtain a translation or provide other details about the content of the confession.
The adviser also provided further untranslated copies of the Applicant’s birth certificate, the document said to be a police summons submitted by the Applicant, as well as a Georgian language article which was said to state that one of the people the Applicant feared had been accused of criminal activity in 2002 and had extensive criminal networks and contacts.
It also appears from the Courtbook that on 4 August 2014 (after the delegate’s decision was made and the review application was lodged, but before the date of the Tribunal hearing invitation) the Applicant provided statements in English to the Department about bank accounts and about the “police summons” which he claimed he could not afford to get translated, but that he had translated using the TIS service. There is no evidence or suggestion that he provided a translation of this statement to the Department. Rather, he claimed the document was from the Georgian police, that it bore his name and address and that of a police officer (for whom a telephone number was provided) and a police station to which he was to report at a stated time on a date in July 2013 and that if he did not report he would have been arrested. He claimed “[t]he reason for the arrest is that I do not agree with their political standing. Immigration in Australia is aware of this. Members of this party I was a part of have been arrested and are now in prison.”
As indicated, in the hearing invitation letter the Tribunal informed the Applicant (through his agent) of the need to provide copies of documents at the hearing and that any documents should be in English or translated. It later wrote to his agent on 8 September 2014 advising that it was unable to read and consider the untranslated documents on the departmental file and that if the Applicant wished the Tribunal to have regard to them he should provide translated copies prior to the hearing.
No translations were provided. In the pre-hearing written submission of 8 October 2014 the Applicant’s adviser did not take issue with the need to provide English language translations of documents in Georgian and, indeed, informed the Tribunal that the Applicant was attempting to procure translations of these documents which the agent would endeavour to provide when available. The possible provision of further documents was also foreshadowed. Except to the extent reliance was placed on the “confession” as evidence of the Applicant’s position and company, it is clear that the adviser understood and accepted that it was necessary to provide translations of all Georgian language documents provided to the Department. A disc with a segment from a Georgian TV show that the Applicant wanted to play and have interpreted at the hearing was provided. There is no evidence as to whether or not this was played at the hearing, but the Tribunal accepted that the Applicant’s friend had been arrested.
In these proceedings the First Respondent confirmed that none of the attachments to the adviser’s submission to the delegate of 26 February 2014 were in English. The First Respondent tendered copies of the Georgian language attachments. There is no suggestion by the Applicant or in the material before the Court that any translations of any of these documents were provided to the Tribunal. In the absence of a transcript, there is no evidence as to whether any of the documents in Georgian were translated or elaborated on during the Tribunal hearing.
Finally, in the post-hearing submission the adviser stated that although the Applicant had confirmed at the Tribunal hearing that the birth certificate provided to obtain his visa to travel to Australia was genuine, on consideration he had realised that it was not genuine. The adviser provided a copy of a birth certificate that the Applicant’s father was said to have obtained from the Georgian Ministry of Justice after the Applicant came to Australia. The submission did not include translations of this or any other documents provided in support of the protection visa application. Nor did it otherwise address the content of such documents.
As the Applicant raised the issue of the Tribunal’s asserted failure to have regard to or obtain English translations of Georgian language documents for the first time at the hearing, I gave the parties the opportunity to provide post-hearing submissions in relation to this issue. The First Respondent filed further submissions. The Applicant did not.
Insofar as the Applicant asserted that the Tribunal should have obtained translations of all materials on which he sought to rely, in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 the Full Court of the Federal Court stated that the Tribunal was not under a general duty to obtain a translation of all materials on which an applicant sought to rely. Wilcox, Whitlam and Marshall JJ observed at [25]:
There may be occasions in which the RRT is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the RRT. However, the primary judge was correct when he said, as a general proposition, at [46] that the RRT “is not required to translate material in a foreign language” or “consider large volumes of material whose relevance is not explained.” Its failure to do so will not mean that it failed to consider or review an application in accordance with s414(1) of the Act or s54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained.
In X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319; [2002] FCAFC 3 the majority of the Full Court of the Federal Court held that while there was no general duty to obtain a translation of documents, the Tribunal in that case could not disregard particular evidence merely because it was untranslated (see [26]-[31] per Gray J and [49]-[54] per Moore J). In X the Tribunal had refused to consider an appellant’s untranslated diary provided to it after the hearing. Gray J distinguished the circumstances in X from those in Cabal. The diary was the only document provided in relation to the appellant’s involvement in political activities in a particular period. The appellant had identified its relevance. The only reason given for the Tribunal’s refusal to consider this document was that it was untranslated. In contrast to this case, the Tribunal in X had not informed the appellant that it would not take into account the contents of untranslated documents until he provided a translation. As Gray J stated (at [30]-[31]):
…It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated.
As the learned primary judge in the present case pointed out, the Tribunal could have asked the appellant to nominate the particular passages in the diary that he regarded as relevant, and to have provided a translation of them into English. The Tribunal has ready access to interpreters who, without great difficulty, could also function as translators of documents. It could have opted to obtain its own translation. What course the Tribunal might take in a particular case will depend on the circumstances of the case. In the present case, it did not have the option of refusing to take into account the diary because it was not in English.
Moore J agreed generally. However, as his Honour stated at [53]:
The point addressed by the Full Court in Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant's application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any “best evidence” rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration & Multicultural Affairs (supra). However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa. (emphasis added)
In MZXTZ v Minister for Immigration and Citizenship (2009) 110 ALD 577; [2009] FCA 888 Gray J suggested (at [43]) that while the Tribunal could not refuse to consider a document on the ground it was untranslated, the Tribunal could have obtained its own translation “or could have invited the appellant to provide a translation, verified in some appropriate way.”
In this case, both the delegate and the Tribunal informed the Applicant (through his agent) of the need to provide translations if he wished documents to be considered and invited him to do so. The adviser acknowledged this and suggested that translations would be provided. Further, the adviser had the opportunity to explain the content and relevance of untranslated documents and did so to a limited extent, in particular in the submission of 26 February 2014 (Courtbook p.71 and pp.74-75).
As the First Respondent pointed out, this issue has also been considered in subsequent cases. The decision in X has, in effect, been confined to the particular facts of that case. For example, it was held in S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (sometimes referred to as S14/2003 v Minister for Immigration and Multicultural and Indigenous Affairs, but see Corrigendum dated 3 February 2004) at [49] (affirmed in S14/2002 v Refugee Review Tribunal [2004] FCAFC 171) that where an untranslated document was provided by an applicant and the Tribunal did not take steps to translate it, but asked the applicant about it at the hearing, it did not err in the manner considered in X (also see MZWKU v Minister for Immigration and Multicultural Affairs [2006] FCA 996 at [19]). Relevantly, Moore J stated in S14/2002 at [49]:
Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546.
In SZLSW v Minister for Citizenship and Immigration (2008) 103 ALD 580; [2008] FCA 1321 Rares J rejected the proposition that the Tribunal had a duty to translate the full content of newspaper articles the appellant had provided. His Honour summarised the effect of Cabal, X and S14/2002 in considering circumstances in which the appellant had an opportunity at the Tribunal hearing to explain the relevance of untranslated newspaper articles and the Tribunal had regard to the proposition the appellant wished to draw from the untranslated articles. Rares J found there had been no failure to have regard to this information (see [8]-[18]).
His Honour had regard to the fact that the Tribunal in SZLSW had informed the appellant on four occasions in writing that he needed to provide translations and the appellant had an experienced solicitor/migration agent able to consider an appropriate approach to advise him to take before the Tribunal to look after his interests (at [17]). Rares J also suggested that the fact that there was no translation before the court of the newspaper articles was “significant” as there was no evidence to indicate that the articles had anything in them beyond the point the Tribunal recorded. This was said to provide a reason to refuse relief, as there was no reason to think another hearing with translated articles would have provided any further information to which the Tribunal could relevantly have had regard (at [18]).
In SZMXS v Minister for Immigration and Citizenship [2009] FCA 1542 the applicant was expressly invited by the Tribunal to draw its attention to any (untranslated) document he specifically sought to rely upon. He declined to do so. No error was established. Flick J stated at [23]:
…the Tribunal is under no unqualified duty to obtain a translation of all material that a claimant may seek to rely upon…
His Honour referred to Cabal at [25] and continued at [23]-[24]:
…To the extent that an occasion may arise as to whether a translation of materials should be obtained, such occasions may be confined to securing the translation of “a particular document”. There is no general requirement to secure the translation of “voluminous” material.
Indeed, there may be no requirement imposed upon the Tribunal to secure the translation of even a particular document. But, if a document that has not been translated is to be relied upon, there may be a necessity to inform a claimant that the Tribunal will not take that document into account because a translation has not been furnished: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56, 116 FCR 319.
After referring to the observations of Moore J in X at [53] and Gray J at [30], Flick J noted that in dissenting in X, O’Loughlin J had observed at [44] that:
…[t]here is room for a variety of views — so much so that I do not think it appropriate for this Court to lay down inflexible guidelines.
In SZMXS Flick J also had regard (at [25]) to the fact that the appellant had “been expressly invited by the Tribunal to draw its attention to any particular document that he specifically sought to rely upon”, but “apparently declined that invitation”.
Finally, in SZQGL v Minister for Immigration and Citizenship (2012) 206 FCR 474; [2012] FCA 1011 a reviewer invited an applicant to describe untranslated documents in an interview. No denial of procedural fairness was established in such circumstances (also see SZRAT v Minister for Immigration and Citizenship [2012] FMCA 928 at [21]-[22] (affirmed on appeal at SZRAT v Minister for Immigration and Citizenship [2013] FCA 134) and SZGYA v Minister for Immigration and Citizenship [2012] FMCA 957 at [32]-[33]).
There is no general duty on the Tribunal to obtain translations. In the submission to the delegate dated 26 February 2014, the adviser had given some limited explanation of the content and relevance of untranslated documents, in particular claiming that the Applicant’s signed confession indicated his role in the family business. Beyond this, the adviser acknowledged that there were “issues” in relation to the inspection of this document given it was written in Georgian. The Applicant provided limited details in relation to what was said to be an untranslated police summons in a statement of August 2014, in particular claiming the reason for it related to his political activities.
The Tribunal made clear to the Applicant the need to provide translations of documents, in particular in the hearing invitation letter and the letter of 8 September 2014. This clearly placed the Applicant and his migration agent on notice that untranslated documents would not be considered by the Tribunal until the Applicant provided translations. The adviser clearly accepted the need to provide translations (as acknowledged in submissions) and did not provide any detailed written explanation of the content or relevance of the documents, beyond that described above. The Applicant had nearly three months to provide translations before the resumed hearing in December 2014, but failed to do so. He was at all times represented by a solicitor who was able to provide him with advice and respond to the Tribunal’s letter (cf SZLSW at [17]). In other words, the Tribunal made express enquiries about the untranslated documents. The Applicant provided some limited explanation of the content and relevance of the documents, but did not ask the Tribunal to obtain any translations.
There is no evidence before the Court as to what occurred at the Tribunal hearing, beyond the Tribunal’s account in its reasons for decision and the references in the post-hearing submission. The Applicant had the opportunity to provide a transcript of the hearing, but did not do so. In particular, there is no evidence as to whether or not there was further clarification sought or proffered about the content or relevance of any of the untranslated documents at the Tribunal hearing. The first hearing was brief (apparently less than 15 minutes according to the hearing record) but the adjourned hearing went for nearly four hours. It is not appropriate to draw any adverse inference in this respect in the absence of a transcript.
I am not satisfied on the evidence before the Court that these circumstances were such as to enliven an obligation on the Tribunal to obtain a translation of any of the Georgian language documents provided by the Applicant or that its failure to do so was indicative of a denial of procedural fairness or a failure to consider evidence or claims in a manner constituting jurisdictional error. Nor is there any evidence to suggest a denial of procedural fairness based on what occurred, or did not occur, at the Tribunal hearing.
Moreover, having placed the Applicant on notice of the need to provide translations, the Tribunal nonetheless considered the claims which were said to be evidenced by the untranslated documents, insofar as necessary to do so after making a comprehensive adverse credibility finding which was reasonably open to it on the material before it and which has not been shown to have been affected by jurisdictional error.
The Tribunal accepted that the Applicant had provided a substantial amount of documentary evidence, including country reports which may indicate those who opposed the political regime in Georgia may experience harassment or harm. This was apparently a reference to material in English cited by the agent. The Tribunal did not fail to take into account such information. It also accepted that the Applicant’s friend had been arrested (apparently the person the subject of the arrests said to be described in the Georgian language TV program). The Tribunal did not fail to have regard to the evidence in that respect. It also acknowledged the Applicant’s claims about one of his associate’s criminal connections throughout Europe (apparently the subject of a news article submitted).
The Tribunal also considered, but did not accept, that the Applicant was in any way intimidated or that false cases had been bought against him. It understood, but rejected, the Applicant’s claim to have been forced to sign a confession relating to false charges and that a summons had been issued against him. It did not accept his claim to face arrest or being killed on return to Georgia. The Tribunal’s rejection of the genuineness of the signed confession of 14 December 2013 (which was relied on by the Applicant as evidence of his involvement in the family company) was reasonably open to it on the material before it for the reasons which it gave. The Tribunal considered the Applicant’s claims about false charges, insofar as the untranslated documents were said to relate to false charges. It did not accept the credibility of the underlying factual basis for these or the Applicant’s other claims. The Tribunal rejected his claimed political involvement (said by him to explain why he would be arrested if he did not report to the police station). As to the birth certificate and ID card, as discussed further below, the Applicant’s identity was not in issue.
Insofar as the Applicant contended that the Tribunal should have made inquiries, as a general principle it is well accepted that a Tribunal is not required to make an applicant’s case for him (see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]). The Tribunal has no general duty to inquire (see SGLB v Minister for Immigration and Multicultural Affairs [2003] FCA 176). There is no evidence the Applicant asked the Tribunal to verify the genuineness of any of the Georgian language documents or to make any particular inquiries. The complaint the Applicant now makes about the Tribunal’s failure to initiate an inquiry on the telephone number said to have been provided for a police inspector in the “police summons” is not such as to demonstrate that the Tribunal erred in failing to inquire into a critical fact the existence of which was easily ascertained in the sense discussed in SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22; [2008] FCA 1372 (and also see SZGUR v Minister for Immigration and Citizenship (2010) 114 ALD 112; [2010] FCA 171). The Tribunal was not under any obligation to call a telephone number that was allegedly contained in an untranslated summons (as described by the Applicant). There is no evidence that the Applicant made any request to the Tribunal that such a call be made. Such an inquiry was not an obvious inquiry. It cannot be said to be clear that calling such telephone number would have satisfied the Tribunal of any critical fact, particularly given that its concerns about the Applicant’s credibility were based on numerous identified deficiencies in his other evidence. Similarly, insofar as the Applicant submitted that the Tribunal could have made general inquiries as to whether the Georgian authorities were still seeking him, the failure to do so is not indicative of jurisdictional error.
The Tribunal was not under any duty to obtain a translation of the documents arising out of any duty to inquire in circumstances where its decision turned on an adverse credibility finding based on a number of deficiencies in the Applicant’s evidence, independent of the Applicant’s explanations for what was contained in such documents. This is not a case in which it is apparent that obtaining a translation of any or all of the untranslated documents would have addressed the significant concerns the Tribunal had in relation to the Applicant’s English language evidence.
As indicated, there is also no suggestion that the Applicant or his adviser asked the Tribunal at the hearing to obtain translations of any particular documents or parts thereof. The Tribunal was aware of the claimed content and relevance of untranslated documents, insofar as the Applicant had provided this information to it. It considered the claims such documents were said to evidence.
It has not been established that the Tribunal overlooked or failed to consider evidence that was significant in the context of the Tribunal’s reasons such as to constitute jurisdictional error (cf Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16). I note that in SZWCC v Minister for Border Protection [2015] FCA 1402 the Tribunal’s failure to consider untranslated police reports was found not to constitute jurisdictional error on the basis that the reports lacked cogency in the context of the Applicant’s evidence and the Tribunal’s findings. The same may be said in the present case in relation to untranslated documents about which the Tribunal did not make express findings. It has not been established that any such documents were so cogent or important to the exercise of its function that the Tribunal’s failure to expressly refer to and consider such evidence in its findings demonstrated jurisdictional error.
Further, this is not a case in which the Tribunal’s failure to obtain translations of any of the material produced by the Applicant can be categorised as legally unreasonable (see Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1). The Applicant was on notice from both the Department and the Tribunal of the need to provide translations. There are no translations in evidence to establish any relevance of such documents to the Applicant’s claims beyond that considered by the Tribunal. In these circumstances the Tribunal’s failure to have documents translated cannot be said to be material to the Tribunal’s decision such that it can be seen as having acted unreasonably, or, for that matter, to have denied the Applicant procedural fairness.
Hence, it has not been established that the Tribunal fell into jurisdictional error in failing to obtain translations of untranslated documents provided by the Applicant, in failing to take into account any particular untranslated documents or in failing to make inquiries.
As indicated, the Applicant also took issue with what was said to be the Tribunal’s failure to accept his documents as genuine. Insofar as this concern was in relation to the signed confession, the Tribunal had regard to this document, but did not accept that it was a genuine document or was of any probative value and gave it no weight. It did so in circumstances where it had already found that the Applicant’s description of the circumstances in which he claimed he was forced to sign a false confession were implausible. The Tribunal was concerned about the Applicant’s claimed ability to obtain a copy of his signed confession, given his claim that he was unable to obtain any verifiable documents at all relating to his business or other events described. It also had regard to country information (and the Applicant’s evidence) as to the ready availability of fraudulent documents in Georgia. In this context the Tribunal acknowledged, with apparent acceptance, the Applicant’s evidence that documents relating to his employment that had been provided to obtain his visa to travel to Australia had been fabricated. The Tribunal’s findings in this respect were reasonably open to it on the material before it for the reasons it gave and are not indicative of jurisdictional error. Contrary to any suggestion to that effect from the Applicant, the Tribunal did not disbelieve the Applicant’s protection claims generally on the basis of his prior provision of fabricated documents.
In submissions the Applicant appeared to assume that the Tribunal did not accept his post-hearing claim that the birth certificate he provided when he applied for a visa to enter Australia was not his real birth certificate and that he had later provided the Tribunal with his real birth certificate. However the Tribunal did not have to address the distinction between the original birth certificate and the subsequent birth certificate. It was open to it to have regard to the fact that while the Applicant had repeatedly informed the delegate that he could not obtain documents from the authorities in Georgia because he was not physically present in the country, by contrast he had claimed to the Tribunal that his birth certificate had been obtained by his friend without his knowledge. The Tribunal did not find that the second birth certificate provided to it by the Applicant was not genuine. It accepted that the Applicant was a national of Georgia.
None of the issues raised by the Applicant in relation to documents he provided establish jurisdictional error.
The Applicant attempted to provide the Court with an explanation for why he could not obtain documents showing his ownership of his business, but this does not go to show jurisdictional error on the part of the Tribunal.
In addition, the Applicant took issue in oral submissions with the Tribunal’s reliance on the fact that he had travelled to Turkey in the past and its view that he would have been able to go to Turkey when the claimed problems occurred (rather than waiting six months to get an Australian visa). The Applicant suggested that it was on this basis that the Tribunal had found that all his other claims were not truthful.
As the solicitor for the Minister pointed out, this is not an accurate characterisation of the Tribunal’s findings and reasons. The Tribunal gave detailed and clear reasons why it did not accept the credibility of the Applicant’s claims and evidence. It had regard to his failure to leave Georgia earlier as only one of numerous factors. It considered his explanation for why he could not travel to Turkey, but found that even if he considered that there were Georgian criminals in Turkey and elsewhere in Europe (and I note this was a matter said by his agent to be canvassed in an untranslated Georgian news article), going to any country outside Georgia as a first attempt and then making arrangements to travel to a safe third country would have minimised the risk of harm he claimed to fear. It was reasonably open to the Tribunal on the material before it to have regard to the fact that the Applicant remained in Georgia waiting for an Australian visa in circumstances where he had previously travelled to Turkey on several occasions. No jurisdictional error is established in this respect, whether on the basis of unreasonableness or otherwise.
The Applicant also claimed that the Tribunal had stated that Georgia was a democratic independent country and that everyone could live there peacefully. There is no such statement in the Tribunal reasons. Indeed, the Tribunal accepted that the Applicant had provided a substantial amount of documentary evidence, including country reports, which may indicate that those who opposed the political regime may experience some form of harassment or harm. It also accepted that the person the Applicant named as his friend had been arrested. In other words, the Tribunal accepted the Applicant’s claims relating to the political situation in Georgia but, for reasons it gave, did not accept that these matters had affected or would affect the Applicant because it did not accept his claims relating to the reasons he would be targeted or harmed.
The Applicant took issue with the Tribunal’s asserted reliance on the fact that he could not remember the date that the NRP was formed to reject his claim. This was not the sole basis for the Tribunal’s adverse credibility finding, although the Tribunal did take into account the fact that the Applicant told it he joined the NRP in 1999, when information before the Tribunal was that it was formed in October 2000. It also took into account (among other matters discussed above) the fact that despite his claimed significant involvement with the NRP, the Applicant told the Tribunal that the NRP was formed in 1993 or 1995. It was reasonably open to the Tribunal to take these matters into account as factors to which it had regard.
To the extent that the Applicant sought in oral submissions to rely on more recent political events in Georgia, such matters do not establish jurisdictional error on the part of the Tribunal. As the solicitor for the Minister pointed out, changed circumstances in the Applicant’s country of origin since the Tribunal decision could form a basis for an application to the Minister under ss.417 or 48B of the Act, but do not assist the Applicant in demonstrating jurisdictional error on the part of the Tribunal.
None of the matters raised by the Applicant in oral submissions establish jurisdictional error on the part of the Tribunal.
The grounds in the application
The grounds in the application are as follows:
The decision maker made a jurisdictional error by not considering all my relevant claims.
The Tribunal decision was affected by non-compliance with procedural requirements.
The Tribunal decision was not made according to law.
I was denied procedural fairness.
As to the first ground, the Applicant did not identify any claim which was not considered by the Tribunal. Nor is any apparent on the material before the Court. The Tribunal considered the entirety of the Applicant’s claims, but rejected them on the basis of comprehensive adverse credibility findings. It has not been established that the Tribunal failed to have regard to any integer of the Applicant’s claims.
The second ground is a general unparticularised contention that the Tribunal decision was affected by non-compliance with procedural requirements. The Applicant has not identified any particular information before the Tribunal that engaged or may have engaged its obligations under s.424A(1) of the Act and which was not put to him. The Tribunal had regard to inconsistencies between written information the Applicant gave to the delegate and his oral evidence to it and placed some weight on the Applicant’s previous travel to Turkey on a number of occasions as claimed in the protection visa application. However the written information provided to the Department fell within the exception in s.424A(3)(ba) of the Act as information that the Applicant gave during the process that led to the decision under review. While that exception does not extend to information provided orally by the Applicant to the Department, the adviser referred in the post-hearing submission to information having been put to the Applicant at the hearing which apparently included information he provided at the departmental interview. Although the adviser did not refer expressly to this being done pursuant to s.424AA of the Act, on the material before the Court I am not satisfied that the Tribunal failed to comply with s.424A(1) of the Act.
There is nothing in the material before the Court to indicate that the Tribunal failed to comply with its obligations under s.425(1) of the Act to invite the Applicant to a hearing and to put him on notice of dispositive issues. The delegate’s decision was based on strong adverse credibility findings. It appears from the Tribunal reasons for decision and the submissions of the Applicant’s adviser that it raised its concerns in that respect at the hearing.
The Tribunal considered the Applicant’s explanations in relation to inconsistencies and inadequacies in the information he provided, including his claims about difficulties in communicating with his migration agent. It was reasonably open to the Tribunal to have regard to the fact that at the commencement of the hearing the Applicant had assured it that he was familiar with the content of his protection visa application and that it was correct and accurate and the fact that it was not until the Tribunal pointed out inconsistencies in his evidence that the Applicant suggested that the information in his application was not accurate. The Tribunal acknowledged that a different interpreter (presumably a Georgian-speaking interpreter) could have been used when the Applicant communicated with his migration agent, but given the time since the application had been made, was of the view that the Applicant had had ample opportunity to communicate with his representative, familiarise himself with his application and ensure that he was fully familiar with it and that it was correct. There is no suggestion that there was any issue with the (Georgian-speaking) interpreter at the Tribunal hearing. The Tribunal stated that it made allowances for any errors due to interpreting, including the fact that the interpreter at the hearing was only available by phone. There is no evidence to the contrary. Further, the Tribunal considered the Applicant’s claims that errors in his evidence were because of stress. No denial of procedural fairness or failure to comply with s.425 of the Act has been established.
It has not been established that the Tribunal failed to comply with any procedural requirements under the Act.
The unparticularised third ground in the application (that the decision was not made according to law) has not been made out.
Nor, for the reasons discussed above, has it been established that the Tribunal denied the Applicant procedural fairness as contended for in the fourth ground.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 22 August 2017
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