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[2002] FCA 122
respondent. Application for an Order of Review dismissed; applicant to pay the respondent's costs (orders dated 11 February 2002).
The applicant, a Georgian citizen of Ossetian ethnicity, sought judicial review of the Refugee Review Tribunal's refusal of a protection visa. The Federal Court (Hely J) found the application was governed by the pre-2 October 2001 s 476(1) review regime. The applicant failed to particularise grounds of review and did not demonstrate any statutory ground such as procedural breach, error of law, or lack of evidence. The Court therefore declined to overturn the RRT's factual conclusions that there was no well-founded fear of persecution or state inability/unwillingness to protect, and dismissed the application with costs to the respondent.
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1,796 words · generated 29/06/2026
Rolandi Gulishvili, a citizen of Georgia of Ossetian ethnicity, arrived in Australia on 18 April 1999 and applied for a protection visa on 27 May 1999. The Refugee Review Tribunal (RRT) affirmed a delegate's refusal to grant the visa in a decision dated 20 June 2001. Mr Gulishvili sought judicial review in the Federal Court on 10 August 2001 (see [1], [4]). His claims rested on alleged past mistreatment and abductions (1990 and 1993), alleged harassment including rocks thrown at his home and verbal abuse, and a claimed eviction in 1998 by Georgian commandos. He asserted that these events showed he had a well-founded fear of persecution because of his Ossetian ethnicity.
2 cited instruments linked from this judgment.
The RRT accepted certain past events: it accepted the 1990 abduction and physical mistreatment, but considered that the circumstances changed after a 1992 cease-fire; it accepted the 1993 abduction but considered it a criminal act for profit rather than racially motivated; it rejected the 1998 eviction claim; and it found that incidents of rock-throwing and verbal abuse, though distressing, did not amount to persecution as defined by the Refugee Convention. The Tribunal found no evidence that the State condoned discrimination against Ossetians or was unable or unwilling to protect them (see [4]-[9]).
Mr Gulishvili's Federal Court application pleaded three general grounds under s 476(1) of the Migration Act 1958 (as in force prior to 2 October 2001): failure to observe required procedures, error of law, and lack of evidence to justify the decision. The originating application contained no particulars of those grounds, and the applicant did not comply with the Registrar's direction to file an outline of submissions (see [2], [3]). At hearing before Hely J on 11 February 2002 the Court found no established ground of review under s 476(1) and dismissed the application, ordering the applicant to pay the respondent's costs (orders and [12]).
The decision turns on statutory limits to judicial review and the Court's lack of jurisdiction to re-evaluate the Tribunal's findings absent one of the enumerated grounds in s 476(1). Hely J emphasised the temporal and statutory framework: the application was filed before amendments to judicial review provisions took effect, so the Court applied the pre-amendment Part 8 of the Migration Act (see [1]). The central legal rule is stated concisely: "This Court is not entitled to interfere with RRT's findings on that question unless one of the grounds of review listed in s 476(1) of the Act is made out" ([10]).
On the facts, the Tribunal made specific factual findings about the nature and motivation of past incidents, the stability after the cease-fire, the absence of a convincing account of eviction in 1998, and the State's capacity and willingness to provide protection. Those findings fall squarely within the RRT's fact-finding role; the Court declined to substitute its view for the Tribunal's without a demonstrated legal error or other s 476(1) ground (see [4]-[9], [10]). The applicant's procedural failures, absence of particulars and non-compliance with directions, meant there was nothing for the Court to assess as a pleaded error of law (see [2], [3], [10]).
Hely J also addressed a point raised by the applicant about RRT's "indifference." The Court acknowledged sympathy for unrepresented litigants but stressed that sympathy does not overcome statutory limits on review; indifference in the Tribunal's reasons would only amount to a ground of review if it rose to actual bias, a ground not pleaded or established here ([10]-[11]).
Before the Migration Legislation Amendment (Judicial Review) Act 2001 commenced, the judicial review regime under Part 8 of the Migration Act confined Federal Court intervention to specific grounds listed in s 476(1). The Court in this case applied that pre-amendment regime (see [1]). The judgment does not discuss the content of the subsequent amendments in any detail, but the temporal point is essential: the pre-amendment limits govern the review because the originating application preceded the amendment commencement (see [1]).
This judgment is an application of long-standing administrative law principles of deference to specialised tribunals on factual assessments and credibility, and the requirement that applicants identify reviewable legal errors before a court will intervene. It confirms that, under the statutory regime applicable here, the Court's role is supervisory and limited; absent a breach of the enumerated grounds, it will not reweigh evidence or reassess credibility.
The judgment does not attempt to reformulate or expand the statutory grounds; it applies them strictly. The Court's emphasis on the applicant's need to particularise grounds reflects procedural expectations that litigants must enable the Court and the respondent to meet pleaded issues (see [2], [3], [10]).
Passage: "The Application for an Order of Review was filed ... prior to the commencement ... The application is therefore governed by the provision of Part 8 ... as it stood prior to 2 October 2001." ([1]) Plain-English: The Court says the old rules about how and when the Court can review RRT decisions apply because the judicial review application was lodged before the law changed.
Passage: "This Court is not entitled to interfere with RRT's findings on that question unless one of the grounds of review listed in s 476(1) of the Act is made out." ([10]) Plain-English: The Court will not override the Tribunal's factual decisions unless the applicant shows a specific legal reason listed in s 476(1), such as procedural unfairness, legal error, or no evidence.
Passage: "Even if the abduction were racially motivated ... RRT found that the State did not condone abduction for ransom, nor was the State unwilling or unable to protect the applicant." ([6]) Plain-English: The Tribunal thought that, whether or not the abduction was about ethnicity, the state did not permit such crimes and could protect the applicant, so there is no ongoing risk of persecution.
Passage: "There is nothing in the Application ... which establishes the availability of any of the grounds of review referred to in s 476." ([10]) Plain-English: The Court says the paperwork filed by the applicant does not show any legal basis the Court could use to challenge the Tribunal's decision.
Passage: "Even if RRT were indifferent ... that would not establish one of the grounds of review ... unless that indifference amounted to actual bias." ([11]) Plain-English: If the Tribunal seemed uncaring, that alone is not enough to overturn its decision; the applicant must prove actual bias, which he did not.
This decision is applicable where:
Practically, lawyers should ensure that any challenge to an RRT decision identifies and pleads applicable statutory grounds of review, and marshals submissions to show how the Tribunal erred in law, not merely in fact.
This judgment itself does not canvass later authorities or report subsequent appellate treatment. It applies settled principles: deference to the Tribunal's fact-finding and strict application of s 476(1) as then in force. The decision accordingly functions as a concise illustration of the Federal Court's approach to unparticularised review applications under the pre-amendment regime. The judgment records the temporal statutory point (that the application was filed before the amendment commenced), a fact which governs which statutory grounds apply ([1]). Beyond the case's own reasoning and orders, the text contains no material about later judicial treatment, appellate history, or whether this specific decision has been cited afterwards.
For practitioners, the practical takeaway is to note the Court's insistence on pleaded legal grounds and the limited reach of judicial review under the statutory regime that applied to this matter. How later courts treat similar factual combinations will necessarily turn on the statutory regime in force at the relevant time and the particular pleaded errors of law.
Pleading standards and access to justice: The judgment emphasises procedural non-compliance and lack of particulars. It raises the recurring issue whether unrepresented or linguistically disadvantaged applicants receive adequate procedural protection to enable them to identify and plead legal errors capable of attracting review. Hely J expressed sympathy but could not expand jurisdiction on that basis ([10]). The case illustrates tension between procedural rigour and access to justice for vulnerable litigants; the judgment does not resolve how tribunals or courts should adapt processes to mitigate that tension without departing from statutory limits.
Indifference versus bias: The Court states that indifference would only amount to a ground of review if it rose to actual bias ([11]). The line between reasoning that shows indifference and reasoning that supports a appearance of bias can be fact-sensitive. This judgment does not explore the boundary in depth, leaving open the detailed tests and thresholds for when shortcomings in reasons may amount to bias under the statutory regime.
Interaction with amended review regime: The decision is governed by the pre-2 October 2001 s 476(1) provisions. It leaves unexplored the precise differences the amendments introduced and how those differences might affect similar factual matrices post-amendment. Practitioners must therefore map the reasoning here onto the post-amendment landscape when advising clients, recognising that statutory changes may alter the availability or content of review grounds.
Evidentiary sufficiency and "persecution": The RRT's judgments that certain hostile acts (rock-throwing, verbal abuse) were not sufficiently serious to constitute persecution were accepted by the Court as factual assessments ([8]). The decision does not analyse the boundary of persecution severity in detail; in close cases, the legal question of when cumulative private acts cross into persecution remains a contested and factual-dispositive issue.
In short, Gulishvili v Minister for Immigration & Multicultural Affairs is a clear application of deference to Tribunal findings and a reminder of the procedural prerequisites for judicial review under the pre-amendment Migration Act. Its core lessons are procedural: plead the legal errors; do not invite the Court to reweigh facts; and, where possible, ensure submissions are properly particularised and served so the Court can address any argued ground under s 476(1).
REASONS FOR JUDGMENT 1 This is an application for a review of a decision of the Refugee Review Tribunal ("RRT") made on 20 June 2001. RRT affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. The Application for an Order of Review was filed in the Federal Court on 10 August 2001, prior to the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001. The application is therefore governed by the provision of Part 8 of the Migration Act 1958 (Cth) ("the Act") as it stood prior to 2 October 2001. 2 The grounds of the application are: "(1) Procedures, the [sic] were required by the Act to be observed in connection with the making of the decision where [sic] not observed (s 476(1)(a)). (2) The decision involved an error of law, being an error involving incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s 476(1)(c)). (3) There was no evidence or other material to justify the making of the decision." 3 No particulars of those grounds are to be found in the application, nor did the applicant comply with the direction given by the Registrar on 6 September 2001 that the applicant should file and serve an outline of his submissions at least five working days prior to the date fixed for the hearing of this application. 4 The applicant is a citizen of Georgia and is of Ossetian ethnicity. He arrived in Australia on 18 April 1999. On 27 May 1999 he lodged an application for a protection visa. The applicant claimed to fear harm from ethnic Georgians because of his Ossetian ethnicity. He relied upon specific incidents which he claimed occurred in 1990, 1993 and 1998 in support of his claim. RRT accepted that the applicant had been abducted by ethnic Georgians in June 1990, held for 2 weeks and physically mistreated. This abduction was motivated by the applicant's ethnicity. However, the circumstances which were the catalyst for the abduction ceased when a cease-fire was signed between Georgia and the self-proclaimed South Ossetian Republic in July 1992. 5 RRT accepted that the situation has been stable and calm since that cease-fire. RRT was satisfied on the basis of the independent information available to it and the applicant's own evidence, that the applicant does not have a well-founded fear of persecution by reason of his Ossetian ethnicity by Georgian commandos or militia in the context of South Ossetia's attempts to achieve independence. 6 RRT accepted that the applicant was again abducted in January 1993. However, RRT found that the applicant's abduction on this occasion was a criminal act undertaken for profit by criminals. RRT was not satisfied that he was abducted and held for ransom because he is ethnic Ossetian. Even if the abduction were racially motivated, which RRT did not accept, RRT found that the State did not condone abduction for ransom, nor was the State unwilling or unable to protect the applicant from harm on that account. The applicant made no attempt to seek the protection of the authorities after the incident or even to report the incident to the authorities. 7 RRT found that the applicant was not truthful in his claim to have been evicted from his home in 1998 by Georgian commandos. RRT did not accept the applicant's claim that he was evicted from his house in November 1998, whether for a Convention reason or otherwise. 8 RRT appears to have accepted that there were some incidents in which neighbours threw rocks at the applicant's house and verbally abused him on the basis of his ethnicity. Those incidents are not described in any of the documents emanating from the applicant which are included in the green book, and I assume that they were the subject of some elaboration at the hearing. RRT found that whilst those incidents would no doubt be upsetting and frightening, it was not satisfied that such harm was sufficiently serious to constitute persecution within the meaning of the Convention. RRT went on to consider the position of Ossetians generally in Georgia, and found no evidence that the State condones discrimination against ethnic Ossetian-Georgians, or that the State is unwilling or unable to protect such persons from private harm. 9 RRT also rejected the applicant's claim that he was obliged to pay a bribe to obtain his passport because of his ethnicity. RRT considered the various claims put forward by the applicant as well as independent country information which was available to it. It is RRT rather than this Court, which has the power and the responsibility of assessing those claims. Having done so, RRT was not satisfied that the applicant had a well-founded fear of persecution by reason of his Ossetian ethnicity. 10 This Court is not entitled to interfere with RRT's findings on that question unless one of the grounds of review listed in s 476(1) of the Act is made out. Mr Gulishvili said to me that he does not understand the law, and hence he cannot identify an error of law. I sympathise with the predicament in which a person such as Mr Gulishvili finds himself and full allowance is made, of course, for his lack of understanding of the English language and for his unfamiliarity with the Australian legal system. However, I am bound by the law and I am not entitled to interfere with the decision of RRT unless it is shown to have made one of the errors which justifies intervention. There is nothing in the Application for an Order of Review, or in the submissions which have been put to me by the applicant, which establishes the availability of any of the grounds of review referred to in s 476. 11 The applicant says that if he did not fear persecution, he would not have left his country. He also said that RRT displayed indifference to him. I am not in a position to assess whether or not RRT displayed indifference to the applicant but I should say that a reading of its decision does not suggest that this is so. In any event, even if RRT were indifferent to the applicant's position, that would not establish one of the grounds of review under the Act unless that indifference amounted to actual bias. Bias was not one of the grounds on which a review of the decision was sought. There is nothing in RRT's reasons which would suggest that it was biased. 12 It follows that the Application for an Order of Review must be dismissed with costs. I therefore order: (1) that the Application for an Order of Review, filed with the Court on 10 August 2001, be dismissed; (2) that the applicant should pay the respondent's costs of this application.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Solicitor for the Respondent: Blake Dawson Waldron
Gulishvili
Minister for Immigration & Multicultural Affairs
Application for an Order of Review dismissed; applicant to pay the respondent's costs (orders dated 11 February 2002).