Gzirishvili v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an unusual matter. The applicant came to Australia as part of a group of nine men from the same area of Georgia, supposedly as sponsors of a youth soccer team. When they arrived they each sought protection as political refugees, relying on a common written submission in which they said they were members of the Akhaltsikhe Gamsakhurdia Party group. The nine were represented by a single migration agent whose understanding of the relevant law appears to be at best partial. 2 Somewhat surprisingly, the applications of the nine which each made to the Refugee Review Tribunal ("the Tribunal"), following an unfavourable determination of their individual cases by a delegate of the respondent Minister, were not heard together by the Tribunal. I should say, "on the face of matters, somewhat surprisingly," because it might be that the Migration Act 1958 (Cth) ("the Act") puts some barrier on joint hearings that has not been explored before me. 3 The Tribunal refused the appeals of each of the applicants and most if not all of them have sought judicial review of the relevant decision of the Tribunal before this Court. While

they were not all heard together, apparently one Tribunal member heard six of the cases, another heard two of the cases, including the one with which I am now concerned, and presumably a third Tribunal member heard the remaining case. 4 After the applicant arrived in Australia, his son also arrived and it is the understanding of those present in the court that the son's application relied on the son fearing persecution because of his father's, that is the present applicant's, political involvement. Apparently in each of the cases the relevant Tribunal member did not believe the particular applicant's story. Certainly, that is the case in relation to the applicant in these proceedings. 5 The applicant is unrepresented. He has filed written submissions and says that the migration agent helped him with them. The submissions found my remarks about the migration agent's apparently limited comprehension of the legal issues involved. I am told that all the other applications reviewed in this Court have been determined and in no case, at first instance, has an applicant been successful. Three have filed appeals, and time has not yet expired in respect of the others who may possibly still appeal. 6 Mr Smith of counsel, who appears for the respondent Minister has informed the Court that the possible issues of concern that I have were, to some extent, shared by Hill J in Makaridze v Minister for Immigration & Multicultural Affairs [2001] FCA 50. But his Honour ultimately held that, in the circumstances of that case, his concerns did not give rise to a reviewable error. 7 In this matter, the Tribunal member did not believe the applicant for reasons that he gave, including a want of confidence in the applicant's subjective truthfulness. While the Tribunal member was well aware that another eight people were making similar claims to those of the applicant, it is not shown that the applicant, who was represented by the aforesaid migration agent, asked that regard be had to the evidence of, or relied upon by, any of the other eight. However the Tribunal member did refer to the application of the applicant's son in the following terms: "Related application The applicant's elder son is now also in Australia and has also lodged an application with the Tribunal. The son's claims are based largely upon his father's claimed political activities. Details of family members' dates and places of birth provided by the son in his application were not exactly the same as those provided by the applicant in his application. Differences related to: · the applicant's own date of birth (he said 3 May 1954, the date given in his passport, while the elder son said 23 May 1954); · the applicant's wife's date of birth (he said 25 May 1960, while his elder son said 25 May 1963); · the elder son's date and place of birth (the applicant said he was born on 8 May 1977 in Akhaltsikhe, but the son said he was born on 12 May 1977 in Tbilisi); and · the applicant's younger son (the applicant said he was born on 15 May 1995, but the elder son said 15 May 1994)." The present applicant says that his son claims to have been mistreated in a relevantly serious way after his own departure from Akhaltsikhe, their town of residence. 8 It seems to me that questions might possibly arise as to whether in the circumstances, the Tribunal was obliged to exercise its powers under s 424 to "get any information that it considers relevant". If the Tribunal did get any such information in relation to the son, it may have breached an express duty under s 424(1) to "have regard to that information in making the decision on the review" and possibly also breached the requirements of s 424(A). 9 The applicant declined, he says, on the advice of his migration agent, to seek the free legal advice which would have been available to him as to his prospects under the pilot scheme, funded by the respondent Minister's department in accordance with guidelines approved by the Court, which is aimed at limiting hopeless appeals. Whether he acted on advice or not, the fact is he did refuse this offer. There are also questions of the timely disposition of this case that need to be taken into account. For that and other reasons, I am not minded to assist the applicant to obtain unpaid representation. Nevertheless, the Court has a duty to ensure that, as far as can be done, justice is done by the Court. It would be unsatisfactory for me to attempt to discover whether there really is anything in the possible legal points to which I have adverted, and the answers are by no means obvious. Counsel for the respondent Minister has foreshadowed submissions to the contrary. 10 Accordingly, I direct that the Registrar ask the President of the NSW Bar Association whether counsel experienced in administrative and migration law might be found to act pro