Manvelishvili v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-12-07|Before: Stone J

introduction 1 This is an application for a review of the decision of the Refugee Review Tribunal ("Tribunal") upholding a decision of the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse the grant of a protection visa. The application is made under s 476 of the Migration Act 1958 (Cth) ("the Act"). 2 Under s 36 of the Act, the criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). As a party to the Convention, Australia has undertaken protection obligations to a person who is a "refugee" as defined in the Convention. 3 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 4 It is necessary that, at the time of the decision on the application for a protection visa, the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention; see cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth).

Procedural background 6 The applicant, a citizen of Georgia, arrived in Australia on 1 July 1998. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 13 August 1998. On 10 November 1998, a delegate of the Minister for Immigration and Multicultural Affairs ("Delegate") refused to grant him a protection visa. The applicant applied to the Tribunal for a review of the Delegate's decision on 7 December 1998 and, in a decision dated 10 August 2000, handed down on 6 September 2000, the Tribunal upheld the Delegate's decision. The applicant filed an application in this Court on 4 October 2000 seeking review of the Tribunal's decision.

decision of tribunal 7 The Tribunal commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a "refugee". It then turned to consider Mr Manvelishvili's claims and evidence. 8 The applicant was one of a group of nine men from the same district in Georgia who travelled together to Australia on visas obtained by one of them, named Vasha. Before the Tribunal, Mr Manvelishvili and the other applicants agreed that, as six of the nine cases were to be heard by the same Tribunal member, each of those six applicants would be a witness for the others. Vasha, the leader of the group of nine applicants, also gave evidence to the Tribunal in relation to the six cases before it. Mr Manvelishvili agreed to the Tribunal taking this course. 9 The applicant was a self-employed, single man of 26 from the town of Vale close to the Georgian-Turkish border. He was a member of the Akhaltsikhe Gamsakhurdia Supporters' Group, which was formed in 14 January 1996 and claimed that, as such, he was being persecuted by the Georgian government. 10 The applicant claimed that, in October 1992, Mr Shevarnadze's pro-communist party overturned the democratically elected government of Zviad Gamsakhurdia. He claimed that the Georgian Parliament passed a criminal code in November 1997, resulting in the persecution of people who disagreed with the government's policies, defamed the President, organised demonstrations or discussed politics. He claimed that, as a result of committing these 'offences', over 90 people had been killed and tortured in 1997. The Tribunal noted that the applicant's description of the law was not confirmed by independent evidence, which suggested that laws restricting demonstrations came under the Civil Code. Independent evidence suggested that non-violent political activity is tolerated in Georgia, except for demonstrations in front of public buildings, which are prohibited without a permit irrespective of the political motive behind the demonstration. 11 The applicant claimed to be an active member of the Akhaltsikhe Gamsakhurdia Supporters' Group since early 1996 and to have participated in demonstrations and rallies in Georgia as a member of this group since January 1997. The applicant participated in two peaceful demonstrations in 1997. 12 According to the applicant, he participated in a rally on 3 January 1998 in the main square in Akhaltsikhe. The demonstrators were carrying banners and had been denied permission to demonstrate. The police hit the demonstrators with rubber truncheons and injured one member of the group. 13 The applicant also gave evidence as to his participation in a rally on 26 May 1998 with approximately 150 other people. He claimed that the police used batons, water sprays and engaged in violence at this rally. The applicant claimed that he was arrested at this rally along with other demonstrators and that he was transferred from Akhaltsikhe police station to a police station in Tbilisi, where he spent three days. He claimed that during his imprisonment in Tbilisi, he was beaten and ill treated. He gave evidence that he signed, under duress, a confession that he and 15 others were terrorists. 14 After signing this document, he was released unconditionally and hid with his aunt. During his time in hiding, Vasha organised Australian visas for Mr Manvelishvili and other members of the group. 15 The applicant claimed that he feared that, if he returned to Georgia, he would be tortured, beaten and killed. He stated that the police seemed to enjoy hitting him and his friends and that some people had been re-arrested after being released. 16 The Tribunal questioned the applicant on his involvement in Georgian politics. The Tribunal commented that the applicant had only voted once in Georgian elections, and that this was before he had reached the voting age. Mr Manvelishvili responded that he had boycotted the 1995 election because he did not accept that it was fair. The Tribunal noted that the applicant, as well as the other five members of his group who gave evidence, had little knowledge of Georgian political history, in particular the activities of Zviad Gamsakhurdia. According to the applicant's evidence, his political activities were limited to his membership of the Akhaltsikhe Gamsakhurdia Supporters' Group and participation in public rallies. It noted that other possible political activity, such as attending private meetings, would not be of interest to the authorities. 17 The Tribunal commented that, although the applicant and other group members remained in touch with family and friends in Georgia, none had heard news suggesting that harm had befallen the applicant's brother, who had helped him escape or the families of the group members. Further, it would seem that no charges have been laid against the applicant or the other group members. 18 The Tribunal did not accept the applicant's evidence that he had signed a document indicting his colleagues as terrorists. The Tribunal concluded that if such a document had been signed, the authorities would have indicted the 'terrorists' on serious charges and questioned the families of the group members who had fled to Australia. Although the applicant and other group members were in contact with family and friends, they had not been informed that either event had occurred. 19 The Tribunal also rejected the applicant's claim that he went into hiding after being released from a prison cell in Tbilisi. It noted that, at that time, he had been unconditionally released, no members of his group were in jail and the police had not commenced searching the houses of the group members. It concluded that there was no plausible reason for the applicant to go into hiding. It further concluded that, if the applicant did feel it unsafe to return home, he would not have hid at a relative's house in the same area. 20 The Tribunal did, however, accept that there were five public rallies held in Akhaltsikhe between 14 January 1996 and 27 June 1998, three of which were organised by the Akhaltsikhe Gamsakhurdia Supporters' Group and four of which were attended by the applicant. The Tribunal was unable to conclude whether the police broke up two of the meetings simply because they were unauthorised or because of the political views of the demonstrators. However, it did accept that the applicant received some blows from police and was detained after the meeting in May 1998. The Tribunal did not accept that the applicant, given his poor knowledge of politics, would have been of any particular interest to the authorities. It did not accept or reject the applicant's claim that he was transferred to Tbilisi police station and rejected the claim that he was tortured. The Tribunal noted that the written submission of the applicant was often exaggerated in its terminology and that the submission bore little relation to the applicant's oral evidence or the independent evidence. It concluded that the applicant's description of his time in prison was similarly exaggerated. 21 The Tribunal noted that the authorities had made no attempt to pursue the applicant, issue him with summonses or write to him in the two years since he was released unconditionally from prison. The Tribunal concluded that the applicant's chance of being harmed for a Convention-related reason in the reasonably foreseeable future was remote and that he therefore did not have a well-founded fear of persecution for a Convention reason. In reaching this conclusion, it took into account the applicant's low level of political knowledge and activism as well as the independent evidence before it.

submissions 22 Written submissions signed by Mr Arthur Volonski, a migration agent, were filed on 30 November 2000. Mr Smith, counsel for the respondent, took issue with the involvement of Mr Volonski on the basis that he was a migration agent and not a barrister or solicitor. While it is possible for a migration agent to be a legal practitioner, Mr Volonski was not in Court to clarify the issue and the applicant was not able to assist on this point. In response to questioning, the applicant stated that he had assisted Mr Volonski in the preparation of the submissions and that he understood and agreed with those submissions. The problem was resolved at a practical level by the applicant adopting the submissions as his own. 23 The written submissions stated that their purpose was "to show that the Tribunal has not been entitled to make the decision based on unproved, controversial, misleading and incorrect findings". The submissions identified a number of alleged errors made by the Tribunal: (a) the Tribunal erred in basing its decision in part on the conclusion that the applicant was a Zviadist, that is, a supporter of Zviad Gamsakhurdia. The applicant's group did not follow Gamsakhurdia but used his name as a symbol for democracy as they believed that he was Georgia's only democratically elected President. This then undermines the conclusions drawn by the Tribunal based on the applicant's lack of knowledge of Gamsakhurdia's political career and the fact that Mr Manvelishvili did not vote for a Zviadist party in the 1992 and 1995 elections. (b) the Tribunal erred in drawing conclusions from the applicant's limited political knowledge and very recent interest in Georgian politics. Further, it erred in concluding that he did not know certain information about Georgian history and politics. (c) the Tribunal erred in stating that the applicant's story was not consistent with independent evidence. It states that the independent evidence submitted to the Tribunal on behalf of the applicant noted that human rights are not observed in Georgia. (d) the Tribunal erred in concluding that the applicant's credibility was poor. In particular, the applicant denies that his evidence at the hearing was inconsistent and states that the questions raised by the Tribunal in its reasons in relation to his evidence were not asked of him at the hearing. Further, it is submitted that in reaching the conclusion that the applicant was not credible, the Tribunal was reasoning illogically. (e) the Tribunal concluded that, because the applicant was unaware of the situation of two people who were arrested with him and also transferred to Tbilisi, those two people had not suffered any adverse consequences. It is submitted that there is no basis for this conclusion and that it is equally possible that the two have been killed or have fled Georgia. (f) the Tribunal's conclusion that the applicant did not sign the confession document is based on "feeble and unpersuasive findings". (g) the Tribunal's conclusion that the applicant had no plausible reason to believe that it would be safe for him to return home after being released from prison is "more than dubious" as well as "absurd and exceedingly illogical". It is also submitted that the Tribunal was wrong in stating that the applicant's aunt's house was close to his own. (h) the Tribunal erred in stating that the applicant had not participated in any activities other than attending rallies. It is submitted that the applicant was not asked about other activities, including private meetings. (i) the Tribunal erred in stating that the applicant had not attracted any adverse attention from the authorities prior to his detention. It is submitted that this is contrary to the applicant's claims. (j) the Tribunal member "has desperately struggled to gather "facts" to "prove" that the applicant either is not a credible witness and the harm does not amount to persecution". (k) the Tribunal erred in assuming that one instance of persecution would not be sufficient for the purposes of the definition of refugee in the Convention. (l) the Tribunal erred in requiring the applicant to base his fear of persecution on his own experiences as opposed to the experiences of others. (m) the Tribunal erred in failing to consider that the applicant's claim could be based on cumulative experiences which together amount to persecution. 24 Mr Smith, counsel for the respondent, submitted that the application should be dismissed for failure to disclose a reasonable cause of action or, alternatively, because the Tribunal's reasons disclose no reviewable error. Understandably, because the applicant had not provided particulars either in the written submissions or orally in Court, he was only able to make very general submissions to support the respondent's case.

reasoning 25 The applicant has been unrepresented in these proceedings although, as indicated above, he appears to have had some assistance from a migration agent. He was invited to participate in the migration pilot legal advice scheme sponsored by this Court but did not accept the invitation. At the first directions hearing in this matter, I briefly explained the scheme to Mr Manvelishvili and advised him that it was in his interests to take advantage of the opportunity which was offered to him. Following the directions hearing on 16 November, my associate wrote to the applicant setting out the orders that I had made concerning the filing of any amended application and evidence. In that letter, my associate pointed out that if the applicant was to obtain legal advice, his lawyer would be able to assist him in complying with those orders. 26 The grounds of the application are summarised above in paragraph 5 above. However, no particulars have been provided and both the respondent and the Court have been left to tease out the details from the amorphous mass of the submissions made on the applicant's behalf. 27 As it was, despite the detailed submissions that I have already summarised, the applicant has not specifically addressed the points that he would need to establish if he is to succeed in this Court. In substance, his submissions attack the fact and credibility findings made by the Tribunaland challenge the weight that the Tribunal attached to competing evidence. However, this Court's jurisdiction to review a decision of the Tribunal is strictly limited and does not include the power to review the Tribunal's decision on the merits. Importantly the Court's power to review is not activated merely because there has been a breach of the rules of natural justice in connection with the making of the decision or because the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; s 476(2). 28 The applicant claims that the Tribunal did not observe the required procedures in connection with the making of the decision and that this constituted a ground of review under s 476(1)(a) of the Act. As I have already stated, no particulars were given. However, my review of the decision has satisfied me that the Tribunal has complied with s 430 of the Act by setting out its reasons for the decision as well as its findings on the material questions of fact and by referring to the evidence on which those findings were based. I was not presented with evidence of any other possible departure from the required procedures and no such departure is apparent. 29 The applicant also claims that there was an error of law within the meaning of s 476(1)(e). He referred to the Tribunal's finding on the question of persecution which I quote: "In short, the Tribunal accepts that the applicant was detained once and received some blows from random police violence as a result of participating in two rallies in 1998 for which no permits had been issued. The individual instance of harm in the circumstances did not amount to persecution. The Tribunal notes that the authorities have made no effort to pursue the applicant, or issue him with summonses, or write letters to him, in the two years since he was released unconditionally and without charge from detention. The Tribunal is satisfied that the chance of the applicant's being arrested in the reasonably foreseeable future for reasons of his political opinion - which he claims to fear - is remote" 30 As Mr Smith pointed out, the question is whether the Tribunal was entitled, as a matter of law, to find that receiving blows in one instance is not persecution. Having read the Tribunal's reasoning, I was unable to locate any passage which indicated that it has assumed that a single event could never amount to persecution. While it is possible that single instances of harm may amount to persecution, the finding is not mandatory; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430 per McHugh J, Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559 at 574-575. Ultimately this is a matter of fact and of degree. Decisions on these issues are within the jurisdiction of the Tribunal but not the jurisdiction of this Court. In the circumstances of this case I do not find any error of law in the Tribunal's decision on this issue. 31 In relation to the submission (l) above, it is true that the role of the Tribunal is to ascertain the existence of a well-founded fear of persecution, which need not necessarily be based exclusively on the applicant's personal experiences. However, the applicant did not point to, and I have not been able to locate, any suggestion in the Tribunal's reasoning that it could only consider the experiences of the applicant. To the contrary, it took into account the evidence of six other members of the group, including the leader, Vasha. Similarly, nothing in the Tribunal's reasoning suggests that it did not take into account all the events that it found may have occurred in considering whether the applicant had a well-founded fear of persecution. 32 The applicant's final point was that there was no evidence or other material to justify the making of the decision. The applicant submitted that he was relying on s 476(1)(g) of the Act and referred to s 476(4)(b). It was a little difficult to understand exactly which was the fact that, in the applicant's submission, was the basis of the decision and that did not exist. The applicant referred to statements in the 1999 Country Report on Human Rights Practices prepared by the United States Department of State dated 25 February 2000 concerning deaths in custody and political killings. According to the report, there were no reported instances of political killings by government agents. The report also referred to the Georgian Government's explanation for the 66 deaths in custody as being due to illness or suicide. The applicant took issue with these statements saying that they were "incorrect". However he did not able to point to any particular fact which was material to the Tribunal's decision and which did not exist. 33 I have also considered whether the applicant's claim that the Tribunal erred in finding that the applicant's claims rested on his political attachment to former President Gamsakhurdia could meet this requirement. The applicant claimed that the use of Gamsakhurdia's name for their group was only symbolic. Hence, it was claimed, the applicant's ignorance of the details of Gamsakhurdia's career did not warrant the significance that the Tribunal attached to it. However on page 10 of the Tribunal's reasons the Tribunal made the following comment: "The Tribunal asked why the applicant and his friends did not join one of the existing parties dedicated to Gamsakhurdia rather than forming their own group. He replied that the existing parties wanted to reinstate the earlier Gamsakhurdia government as it had been. The applicant and his friends, on the other hand, were fighting for democratic elections so that everyone could take part on an equal footing. They wanted democratic elections of a calibre that foreign observers could come and say that they were free and fair. They chose the name Gamsakhurdia for their group because Gamsakhurdia was a symbol - the only democratically elected President." 34 This comment shows that the Tribunal did not misunderstand the way in which the applicant's group used the Gamsakhurdia name. However, even if there was some misunderstanding as to the precise situation, in my opinion this was not material to the Tribunal's decision. The Tribunal's scepticism about the applicant's claim based on the comparative ignorance of recent Georgian political history could be equally well based on the view that the applicant attributes to the Tribunal or the view that Gamsakhurdia's importance was symbolic. Similarly, the Tribunal's comments on the failure by the applicant to vote in elections were not material to its decision. The Tribunal did not expressly reject the explanation given by the applicant for boycotting the election. In any event, this claim clearly does not fall within s 476(1)(g) and s 476(4). 35 For these reasons the orders of the Court will be that the application be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for the Applicant: The applicant appeared in person, assisted by an interpreter.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Cited By (1)