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[2001] FCA 50
Federal Court of Australia
2001-02-16
Hill J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, Mr Mamuka Makaridze is a citizen of the Republic of Georgia. He arrived in Australia on 1 July 1998 and shortly thereafter applied for a protection (class AZ) visa. His application was refused and he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal affirmed the decision of the delegate of the respondent Minister for Immigration and Multicultural Affairs ("the Minister"), refusing his application for a protection visa. 2 Mr Makaridze now applies to the Court for judicial review under s 476 of the Migration Act 1958 ("the Act"). The grounds of judicial review under the Act of decisions of the Tribunal are limited. The application to the Court nominated various of the statutory grounds but provided no particulars of them. Mr Makaridze was unrepresented in the Court although assisted by a translator. At the commencement of the hearing he read in the Russian language submissions, translated by the interpreter, which had been prepared for him by an adviser. Those submissions were said to be based on s 476(1)(g) which provides (though subject to s 476(4)) that it is a ground of review "that there was no evidence or other materials to justify the making of the decision". 3 The ultimate question for the Tribunal in its review of the Minister's decision refusing a protection visa was whether it was satisfied that Mr Makaridze was a person to whom Australia had protection obligations. Australia has protection obligation to a person who is a refugee within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (herein compendiously referred to as the "Convention"). A person is such a refugee if the person has a well-founded fear of persecution for one or more of the reasons enumerated in the Convention definition, relevantly here, political opinion. 4 It appears that Mr Makaridze and eight other men from the same district in Georgia travelled together from Australia on visas which purported to be issued on the basis that they were supporters of a youth soccer team. All of the nine sought protection visas. All applications were rejected. Six of the nine cases were heard together by the same Tribunal Member. 5 The applicant and, it would seem, at least the men involved in the other five cases heard by the Tribunal Member had prepared a joint submission in which they claimed to be members of a group referred to in the submission as the Akhaltsikhe group supporting the Gamsakhurdia party. Akhaltsikhe is a town in Georgia. Mr Gamsakhurdia was a former president of Georgia, in fact its first president, who was deposed in 1992 by a military council and replaced by Mr Shevarnadze. 6 It is not necessary to set out the submission in full here. It suffices to say that it claimed that the group was formed to popularise and explain its views, which were opposed to the present regime, to residents of Akhaltsikhe and adjoining towns and attract people to the Zviadists, these being supporters of the former president. It may be noted that Mr Gamsakhurdia was ultimately assassinated and it was claimed his followers still suffered brutal persecution. According to the joint submission the group, or members of it, met from time to time to discuss politics, distributed pamphlets and attended some meetings in support of Mr Zviad (Gamsakhurdia) and at which some were arrested. One such meeting was said to have been held on 26 May 1998 which was raided by the police. Following that meeting it was said that many members of the group were arrested including one of the group's leaders who was said to be still in jail. The submission said that almostevery home belonging to group members was searched and that some members had been taken to hospital with severe injuries thereafter. 7 Mr Makaridze's case before the Tribunal was, inter alia, that after the meeting on 26 May 1998 he had run home, discussed events with his family, and then left home to stay with relatives some 20-25 kilometres away. He said he had done so because he had seen the police in the square arresting two people, one of whom is referred to as "Z" and was afraid that the police might come to his house. He had subsequently learned he said that "Z" had signed a document apparently implicating the others. So far as appears from the Tribunal's reasons Mr Makaridze did not suggest that the police had attempted to search his home or made any inquiries about him. 8 Although it did not seem to be part of his case, it appears that Mr Makaridze was liable to be called up but had not been called up for military service although in his evidence he said apparently that the militia had been looking for him and had come to his house. A person who had a tertiary education was entitled to defer military service until this tertiary education was completed. Mr Makaridze had studied economics at a tertiary level and had graduated some time in 1995 or 1996. He was liable thereafter to be called up. 9 Mr Makaridze's case, as summarised by the Tribunal, can be seen from the following passage in the Tribunal's reasons: "The Tribunal asked the applicant why he personally felt at risk, given that he had not been arrested at the square and had not had any encounters with the police ever before. The applicant replied that when he saw people in the square being arrested, he thought that they - the arrested ones - might give police the names of their colleagues. Hence he went to his relatives' house and from there monitored events by phone." 10 It appears from the Tribunal's reasons that the Tribunal Member took evidence not only from Mr Makaridze but also from five of the other men who had signed the joint submission. That was apparently done with the consent and knowledge of Mr Makaridze although, as the Tribunal noted, Mr Makaridze did not have the opportunity to hear what the others said and to refute any parts that might be adverse. The Tribunal noted that it used the testimony of these other witnesses cautiously. In principle this is, potentially, an unfair way of proceeding and is likely to lead to difficulties arising under s 424(A) of the Act if some of that evidence is ultimately adverse to a person not able to know what evidence was given. I shall return to that matter later. 11 Mr Makaridze submitted that there was no evidence before the Tribunal to justify findings which he said were erroneous. He relied upon five matters which, so far as I understand the submission in translation, were as follows: 1. The Tribunal had found that there was no connection between Mr Makaridze's political views and his departure from Russia. It is said that there was no evidence to justify this finding. 2. The Tribunal found that the Government had not shown any adverse interest in Mr Makaridze or his relatives yet there was no evidence to establish this. 3. The Tribunal found that "Z" had not signed a letter implicating Mr Makaridze or others in anti-government activities yet there was no evidence upon which the Tribunal could make that finding. 4. The Tribunal found that Mr Makaridze did not have a well-founded fear of persecution based on various country reports to which it referred. It is said that on behalf of Mr Makaridze information about human rights had been submitted to the Tribunal but that the Tribunal had not taken this information into account. 5. The Tribunal found that Mr Makaridze's evidence could not be relied upon because he had not taken part in any election, he did not know the voting age required in Georgia or historical events in his country of political significance. However, it was submitted that Mr Makaridze had only become interested in politics in 1997, joining the group because he could see that conditions in Georgia had become worse and Georgians were being persecuted. He said he had not been interested in politics before then but, in any event, that this was not important. It was said that there were no facts which showed that he was not truthful and these matters should give way to the 100 per cent truth which he had told. As Mr Makaridze put it in his concluding remarks unfounded suspicions by the Tribunal should not outweigh 100 per cent truth.
THE TRIBUNAL'S REASONS 12 Before considering the submissions noted above it is necessary to say something about the Tribunal's findings and reasons. The Tribunal found that Mr Makaridze was not a credible witness in all aspects of his testimony. It said his story was not consistent in a number of respects with the group submission to which he was a party nor was it supported by independent evidence, presumably by that the Tribunal meant the country reports. In saying this the Tribunal noted that it had not used individual variations between Mr Makaridze's oral testimony and evidence of the other members of the group to which reference has already been made in an assessment of his credibility. 13 In reaching its conclusion that Mr Makaridze's evidence was not credible the Tribunal Member in his reasons placed particular emphasis upon the fact that for someone supposedly concerned with a political group Mr Makaridze did not know the voting age in Ukraine (sic) nor had he ever voted or registered to vote. According to the Tribunal Mr Makaridze also lacked knowledge about the history of the Gamsakhurdia years of 1989-93 although this may have been explicable, so the Tribunal said, by the fact that in 1989 Mr Makaridze was only 15. However, according to the Tribunal, Mr Makaridze had failed to learn any real facts about the political history or method of governance of Georgia since 1997 and exhibited, so the Tribunal said, a "real disinterest" (sic) in the subject. 14 By way of parenthesis one may say that mistakes in political history such as the date of an event to which the Tribunal referred would not necessarily demonstrate that a person was not a member of the political group particularly if membership of that group might bring with it imputed political opinion. Imputed political opinion was not, however, suggested here. 15 The Tribunal formed the view that Mr Makaridze had learned a story about the Akhaltsikhe Zviad Gamsakhurdia Supporters' Group and its activities rather than experiencing it himself and was satisfied that the authorities had not had nor would they have in the reasonable foreseeable future any adverse interest in Mr Makaridze for reason of his political beliefs. It may be added that the Tribunal considered but rejected any possible claim Mr Makaridze might have of wishing to avoid conscription for reasons of political conviction. No reference was made to this matter in the application to this Court. 16 The Tribunal also discussed in its reasons the case of what the situation would be even if Mr Makaridze had been a member of the supporters group. It was in this context that the Tribunal mentioned that in another case it had concluded that "Z" had not signed a document implicating his colleagues including the applicant on serious charges but that, even if a confession had been signed and Mr Makaridze's name appeared on it, the Tribunal was of the view that the chance of harm befalling Mr Makaridze was remote. 17 The Tribunal rejected various matters that were raised by Mr Makaridze's representative by reference to the country information which it had summarised in its reasons concluding that even if Mr Makaridze were know to the authorities as a member of a small unregistered political group no adverse consequences were likely to ensue to him. 18 I turn now to consider the submissions made by Mr Makaridze before me. As indicated earlier, the ground of no evidence is subject to s 476(4) which requires such a ground not to be made out unless either of the matters referred to in paragraphs (a) and (b) of the subsection is made out. It is submitted on behalf of the Minister that in the present case they were not. Subsection (4) provides: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 19 In considering the submissions it must be borne in mind that the ultimate issue for decision by the Tribunal is whether the Tribunal is satisfied that an applicant before it is a person who has a well-founded fear of persecution. It is not necessary (and would often be impossible) for the Tribunal to decide positively whether the person has a well-founded fear of persecution although clearly, if it did so find, it would be satisfied. If it be assumed that the Tribunal did find that there was no connection between Mr Makaridze's political views and his departing Georgia (and while implicit in the reasons there is no express clear finding on this matter) the Tribunal's decision cannot be impugned in my view by saying that there was no evidence upon which the Tribunal could find that there was no connection between an applicant's political views and departing a country. The applicant needs to show a well-founded fear of persecution. That may tend to be demonstrated by showing that there was a connection between an applicant's political views and departure from a country on the evidence. If a Tribunal disbelieves an applicant who claims that he departed the country because of persecution for political views it is not a ground of judicial review to say that the Tribunal lacked evidence that there was a connection between the political views and the departure. All that such a finding would mean is that an applicant has not made out the case he sought to make. There is in my view no substance in the first of the submissions. 20 So far as the second submission is concerned it does not seem to have been any part of the applicant's case to show that the Government had taken an adverse interest in Mr Makaridze or his relatives at or around the time of the events of 26 May 1998. That this is the case appears from the Tribunal's reasons in the passage already set out at paragraph 9 of these reasons. 21 As the decision points out the only contact the applicant had with any government authorities was the occasion when the militia apparently came to visit in respect of national service obligations. I would accordingly reject the second submission. 22 The third submission stems from the Tribunal Member noting that in a related case, that is to say one of the other five cases before the Tribunal, the Tribunal Member had found that "Z" had not signed a document "indicting" his colleagues including the applicant on serious charges. It is not open to an applicant to claim that the no evidence ground is made out when a factual matter is rejected, in this case the signing of the confession, without there being evidence in fact that a confession was not signed. This really turns a no evidence ground on its head. Perhaps another way of putting it is that it was not in terms of s 476(4) a matter that was required by law for the Tribunal to decide. What was material was the converse although again it may be said that even the converse was not a matter that the Tribunal was required by law to decide. 23 The fourth submission related to material which was said to have been put before the Tribunal but not referred to. Mr Makaridze was unable to point to any such material and accordingly it is difficult for me to consider this ground. 24 Finally, it is misconceived to raise a no evidence ground in respect of a finding on credit. The Tribunal concluded that Mr Makaridze's credit could not be relied upon. One may criticise some of the Tribunal's logic in deciding this. On the other hand it may well be in part that the Tribunal's views of Mr Makaridze's credit stemmed from seeing him in the witness box. I do not know whether that is the case. To say that there are no actual facts or evidence which showed Mr Makaridze not to be truthful is not to demonstrate a no evidence ground. Again, it is not a case falling within subsection (4) where it is necessary for the Tribunal to reach a conclusion that an applicant is telling the truth. Its assessment that an applicant is thus not, is not a matter which a Tribunal is required to consider and falls for that reason outside the no evidence rule. For this reason the final ground argued likewise fails. 25 It follows the application must be dismissed with costs. 26 There are two matters which cause me some concern. First, there is a possibility, it may not be the reality, that the Tribunal formed initially the view that the applicant should lose and then justified that by finding against credit. Were this the case it would be quite an improper way of deciding a matter. The justifications given by the Tribunal for finding matters of credit adverse to Mr Makaridze might be thought by some not such as to have justified a finding against credit. The second matter is more important. 27 It will be recalled that the Tribunal took into account evidence given by five other applicants who had joined with Mr Makaridze in the joint submission. The Tribunal's reasons detail some of that evidence under the heading "Other applicants in the group (witnesses)". In so doing the Tribunal said that it had used the testimony of the other witnesses "cautiously". However it notes conflicts of testimony among the other witnesses in respect of some matters and also that none of the six persons knew anything about Zviad Gamsakhurdia other than that he had become President in 1991 and was forced to leave Georgia in 1992. The Tribunal comments: "All believed he had been forced out by Shevardnadze: no-one knew that the latter was not in the country at the time. Not one person knew about the election success of the Round Table-Free Georgia Party in 1992 and Gamsakhurdia's consequent Chairmanship of the Georgian Supreme Soviet preceding his presidential election. Not one knew of Gamsakhurdia's ousting by Parliament prior to his departure from Georgia. Not one knew about the civil war waged by Gamsakhurdia during 1993 and his death at the end of that year. None of the six people voted for any candidates in the elections of 1992 and 1995, notwithstanding that in the latter election there were two Zviadist parties putting candidates forward. All attributed their non-compliance to the fact that the elections were not fair ..." 28 The actual testimony of these witnesses was not put before me. Nor was any argument sought to be advanced relying upon s 424(A) of the Act. It would seem potentially likely that the evidence given by these witnesses had some impact on the assessment of credit which the Tribunal made adverse to Mr Makaridze. I have a lingering fear that the circumstances could have been such as to render compliance with s 424(A) necessary, that is to say to require that the Tribunal actually provide to Mr Makaridze information which arose out of that evidence and which could have formed part of the Tribunal's reasons for affirming the decision under review. The initial problem in considering the issue is the absence of a transcript. 29 Although I have some unease about the matter, particularly as Mr Makaridze was unrepresented, I could not conclude on the material presently before me that there was an obligation upon the Tribunal to comply with s 424(A) with the consequence that there had been a failure on the part of the Tribunal to observe procedures required by the Act to be observed. 30 In the circumstances I would dismiss the application and affirm the Tribunal's decision. 31 I would order Mr Makaridze to pay the Minister's costs of the application.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
Makaridze
Minister for Immigration & Multicultural Affairs