NACM v Minister for Immigration & Anor [2005] FMCA 1412

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application filed in this Court on 20 August 2004 seeking review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 5 July 2004 and handed down on 2 August 2004, to affirm the decision of a delegate of the respondent Minister made on 21 January 2000 to refuse a protection visa to the applicant. The Tribunal is joined in these proceedings as the second respondent.

The background to this case is that the applicant, who is a national of Georgia, arrived in Australia on 9 December 1999, and on

30 December 1999 lodged an application for a protection visa with the first respondent's Department. This application is reproduced in the Court Book ("CB") filed in the Federal Court of Australia in proceedings N1568 of 2001 at CB 1 to CB 45, and also now before me. The application was refused on 21 January 2000, and the applicant applied to the Tribunal for review of this decision on 21 February 2000 (CB 60 to CB 63). The (differently constituted) Tribunal's decision of 16 October 2001 was set aside by order of Madgwick J., on

22 December 2003 (Supplementary Court Book ("SCB") 1), with reasons at SCB 27 and remitted to the Tribunal for consideration. The applicant attended a hearing before the Tribunal on 7 April 2004, and the Tribunal's account of the relevant parts of the hearing are reported in its decision record under the heading of "Claims and Evidence" reproduced at SCB 116.5 to SCB 122.4. The applicant also made written submissions to the Tribunal both before and after the hearing (SCB 34 to SCB 36 and SCB 47 to SCB 51).

The applicant claimed to fear persecution in Georgia for the Convention reasons of political opinion, including imputed political opinion, and race. The applicant claimed specifically to have been arrested on charges relating to a conspiracy to overthrow the government of Georgia. He claimed that these were dropped but he was falsely charged with robbery and put in gaol. He claimed to be a supporter of the People's Party which was in the Parliamentary opposition at the time. He also claimed to fear harm from political figures:

a)

A General Chkeidze, because the applicant opposed his arms trafficking activities.

b)

The secretary of Georgia's National Security Council, Mr. Sadjaia, who tried to destroy him because of this. The applicant also claimed to fear harm because he had rejected Mr. Sadjaia's sexual advances.

In relation to race the applicant claimed to be of Ossetian ethnicity arising from his father's background, and that this caused problems for him in Georgia.

The Tribunal's understanding and consideration of the applicant's claims and evidence is set out extensively at SCB 95 to SCB 123.1 and includes independent country information to which the Tribunal had regard. In relation to the applicant's claims the Tribunal found:

1. In relation to race, it accepted that the applicant is a national of Georgia (SCB 123.2), and that he is the son of an Ossetian (a minority group) father. The Tribunal did not believe that the Georgian authorities were unaware of his ethnicity when they recruited him into the military and promoted him. While the Tribunal accepted the fact that there had been an isolated incident when someone took advantage of this ethnicity to express disdain towards him, it found that his overall evidence did not support the claim that he was persecuted for reasons of his race. Rather, the Tribunal found he was a man of responsibility and influence despite the minority status of his ethnicity on his father's side (CB 123.7).

2. The Tribunal found the applicant to be an unreliable witness at the hearing before it in relation to the issues of changing his identity documents and about gaining personal access to files pertaining to him that were kept in the Georgian military system (CB123.9).

3. The Tribunal accepted that the applicant had been a victim of a miscarriage of justice in 1996-97, and also accepted the applicant's claims that the Parliament of Georgia played a role in his vindication (SCB 124.3). However, it concluded that the High Court and Attorney General's office in Georgia were not the applicant's adversaries in a conspiracy against him, and were misled by a "trumped up prosecution case" (SCB 124.4). The Tribunal found the applicant's claims about being under house arrest after his release in December 1997 to be contradictory and implausible (SCB 125.1). It found further that even if he had been kept under house arrest for a period after December 1997, it did not accept that there were reasons to conclude that the applicant would face house arrest in the future as his exoneration had been officially declared by the Parliament of Georgia and was processed through the Attorney General's office (CB 125.3).

4. The Tribunal dismissed as a concoction the claimed circumstances under which the applicant said he obtained a passport. It took the view that the applicant invented the story of the circumstances surrounding the obtaining of the passport "in order to navigate his way around an adverse position put to him by the Tribunal" (CB 125.5).

5. In relation to the applicant's claims of persecution for reasons of imputed political opinion, and with reference to the Federal Court Judgment of Madgwick J., the Tribunal accepted that the applicant was wrongly implicated in "the robbery case", but found that it did not follow automatically that those officials involved were motivated, and might be motivated, to harm the applicant because they believed he was a political threat (SCB 125.7). Given the level of doubt however, the Tribunal did consider the possibility that people carrying out the "dirty work" of putting the applicant behind bars were using the criminal law to attack the applicant who they saw as a political opponent of the government. But even if it were to accept this the Tribunal found that this "whole exercise" collapsed in December 1997 when the applicant was officially declared as exonerated by the Parliament (SCB 126.1). Further, and in any event, the Tribunal found that there was overwhelming evidence of significant changing political circumstances in November 2003 in Georgia. That a much freer more accountable democracy and a new government had emerged which was dedicated to cleaning up corruption and bringing past miscreants to justice (SCB 126.3). In these circumstances, the Tribunal found that it could not accept that the applicant faced a real chance of being persecuted in Georgia for reasons of political opinion, even in the circumstances as suggested by Madgwick J., in his Judgement (SCB 126.5).

6. In relation to specific individuals whom the applicant claimed were a threat to him, the Tribunal found that:

a)

In relation to General Chkeidze, that whatever the motivation or possibility of harm, the new government of Georgia would provide protection to the applicant (SCB 126.7).

b)

In relation to Mr. Sadjaia the Tribunal was prepared to accept that he was known to the applicant and had manipulated police charges against him, but that the reasons were not Convention related reasons, and in any event, it would not be possible for Mr. Sadjaia, even if he were still alive, to fabricate political charges against the applicant. The Tribunal found that Mr. Sadjaia's persecution of the applicant ended at the latest in December 1997 after which the applicant "lived at large free from persecution." (SCB 127.2).

7. In relation to the applicant's support of the People's Party the Tribunal accepted that he was a supporter, but concluded that he did not face a real chance of persecution in Georgia for reasons of this affiliation (SCB 127.5).

The application to the Court filed on 20 August 2004 complains that the Tribunal:

1. Made an error of law.

2. Did not comply with the principles of natural justice.

3. Did not consider the crucial matters that were relevant to his case.

4. Misunderstood his case.

No particulars are provided by the applicant nor has any amended application been filed. At the hearing before me the applicant was unrepresented. He advised that he was able to understand English, and in any event an interpreter in the Russian language was present and assisted when required. Mr. Reilly of Counsel appeared for the respondents. The applicant has made three written submissions to the Court.

• 20 August 2004 (which appeared to address the grounds of the application, but which he said at the hearing before me that he did not now wish to rely on).

• 24 February 2005.

• 11 August 2005.

This latter submission seeks to rely on provisions in the Administrative Decisions (Judicial Review) Act 1977 ("AD(JR) Act"). This Court does have jurisdiction generally under the AD(JR) Act to review migration decisions. However, this must be seen in the light of what the High Court said in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [97]:

"It also is to be noted that changes were made by the Amending Act to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Amending Act inserted par (da) in Sched 1 to the ADJR Act. Section 3(1) of the ADJR Act contains a definition of "decision to which this Act applies", which identifies decisions of an administrative character made, proposed to be made or required to be made under certain enactments, but excluding decisions included in any of the classes of decision set out in Sched 1. The par (da) of Sched 1 inserted by the Amending Act specifies:

"a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958".

Questions may arise respecting the construction of the ADJR Act and its application to decisions which are not privative clause decisions and in which jurisdictional error is relied upon..."

The High Court found that the exclusion of jurisdiction to review privative clause decisions under the AD(JR) Act would not apply in the case of a decision infected with jurisdictional error. The issue therefore in this regard, and in the case before me, is to determine whether the Tribunal's decision contains a jurisdictional error. If it does not, then it is a privative cause decision in which case the operation of the AD(JR) Act is excluded. I will return to this issue below.

I note that the application to this Court is expressed to be made under s.39B of the Judiciary Act 1903, and not under the AD(JR) Act. At the hearing before me the applicant did not seek to amend his application in this regard. He withdrew the one submission that appeared to directly address the grounds made in his application, and that was the submission of 20 August 2004. I note however that for the most part the complaints in that submission are picked up in the submissions of 24 February 2005. Before me the applicant's complaints appeared to be:

1. The Tribunal committed an error of law in that it made its decision on a fact that did not happen, and this was that the Tribunal asserted that his name was "clear" which was incorrect. He claimed that while his case was looked at by the Parliament of Georgia this never led to his name "being cleared".

2. That there was no evidence to support the Tribunal's finding that changes had occurred in the political environment in Georgia, and that the government in power at the time of the Tribunal's decision would be able to provide protection to the applicant. The applicant disputed the Tribunal's findings that the new government was not interested in him and would provide protection to him.

The applicant's written submissions of 24 February 2005 (and for that matter 20 August 2004) to some degree seek impermissible merits review. However the following possible complaints may be discerned from the submissions of 24 February 2005:

1. That the decision of the Tribunal was based on facts which were contradictory and was "absolutely absurd".

a)

This appears to be centred on the complaint that the Tribunal found that the High Court and the Attorney General's office in Georgia were not the applicant's adversaries in a conspiracy against him and were merely misled by a "trumped up" prosecution case. The applicant now claims that the case against him was fabricated by the office of the Attorney General as indicated in the submission of his former defence lawyer, who acted for him during the time of the events of 1996 and 1997. The applicant referred both in written submissions, and at the hearing before me, to the letters he provided to the Tribunal from his former lawyer which are reproduced in the material before me at CB 66 to CB 99.

b)

The Tribunal clearly accepted and found that the applicant was a victim of a miscarriage of justice in 1996-97 (SCB 124.2). It accepted that he was either wrongly implicated in a robbery from the beginning, or that the evidence against him was tainted in such a way as to have his sentence terminated in 1997, and his convictions quashed in 1998. The Tribunal accepted much of what was contained in the applicant's claims in this regard and specifically made reference to the letters in the applicant's "first" Tribunal file as supporting its conclusion that the High Court and the Attorney General's office were not the applicant's adversaries in a conspiracy against him, but had been merely misled by a "trumped up" prosecution case.

c)

Specifically, the applicant's complaint now is that the Tribunal did not take into account the information provided by his former defence lawyer in Georgia (the English translation is at CB 67 to CB 72). This letter deals with the false case against the applicant and seeks to present the applicant's innocence in the alleged wrongdoings (CB 72.4):

"According to everything mentioned above it is evident that [the applicant] is innocent, he has never participated in illegal activity. Materials against him are fabricated and don't correspond to the facts".

Pointing to this letter now does not assist the applicant because the Tribunal found that he had been exonerated. This letter makes reference to the Attorney General's or Prosecutions office in Georgia and its role (CB 71.8):

"But nobody is interested to restore [the applicant's] wounded ambition and to acquit him, because in this case Georgian Public Prosecutor's Department will be compromised."

This issue is picked up in the applicant's submissions to the Tribunal of 23 July 2001 (CB 109 to CB 112) and in particular at CB 111:

"Unfortunately my case would have to be sent to Attorney General office for further investigations that would mean that the letter would go back to the same people who fabricated my arrest but failed to destroy me completely."

The Tribunal's decision record shows that the Tribunal had specific regard to this submission. Its account of the relevant evidence is at SCB 99.9 to SCB 100.9. The issue of the Parliamentary sub-committee and the role of the Attorney General's office is addressed by the Tribunal. Its findings that the High Court and the Attorney General's office were not the applicant's adversaries (SCB 124.4) and were "merely misled" is made with reference to the material submitted by the applicant and in particular at SCB 124.4:

"The supporting letters [which includes the letter from his lawyer] in the Applicant's first RRT file support this conclusion."

Clearly the Tribunal did have regard to the material to which the applicant claims now that the Tribunal had no regard.

It is not for this Court to consider what finding it would have made in relation to this material. This is the role of the Tribunal. The findings of the Tribunal were open to it on the material that was before it, and what weight the Tribunal accords as between the different documents submitted to it, is in all the circumstances, a matter for the Tribunal.

d)

Further, I note the letter submitted by the applicant now (attached to the written submissions of 24 February 2005) purporting to be from his lawyer in Georgia and on which the applicant now relies to show that his "name" had not been cleared. On its face this document states that it had been drafted after the decision of the Tribunal, and clearly was not before the Tribunal, and therefore was not available to it for consideration. The Tribunal's decision record shows that it did consider the material that the applicant put before it and made its findings accordingly. It accepted that the applicant had been a victim of some miscarriage of justice, but found on the material before it, that the applicant had been exonerated. I can see no error in the Tribunal's decision in this regard.

2. The applicant complains that the Tribunal did not address an integer of his claim.

a)

No particulars whatsoever are provided.

b)

To the extent that this is meant as a conclusion to the complaint made above then I have already dealt with that complaint. However, no other particulars are provided and in the circumstances this complaint also cannot be made out.

3. The applicant also complains that the Tribunal did dot follow the findings of Madgwick J.

a)

At paragraph 13 of these written submissions the applicant states that the "crucial moment" when the Tribunal "made a mistake" was that Madgwick J. made factual findings which he now implies were binding on the Tribunal, particularly in circumstances where he disputes the findings of the Tribunal.

b)

It is clear however that it is not the role of the Court to make such factual findings, and in any event with the greatest respect, that does not appear to be what His Honour Justice Madgwick has done. In any event, the applicant again seems to base this complaint on the letter from his lawyer at CB 67 to CB 72 and to submit that this was not considered by the Tribunal. The lawyer's letter goes to the issues surrounding the charges and convictions brought against the applicant in 1996 and 1997. Clearly the Tribunal did have regard to the material provided by the applicant. At SCB 124.4 the Tribunal makes direct reference to the supporting letters in the applicant's "first RRT" file and further the Tribunal made the findings accepting that the applicant was the victim of a miscarriage of justice in 1996-97. There is no obligation on the Tribunal to accept uncritically everything put to it by an applicant, and this is what appears to be at the core of the applicant's complaint now. I say for the applicant's benefit that the obligation on the Tribunal is to consider material put forward and to make findings. Regarding the information contained in the submission from the applicant's former lawyer, the Tribunal did just that in relation to the issues raised. The fact that someone else might have come to a different conclusion or may have made different findings of the facts is clearly not relevant.

a)

At paragraph 16 of the submissions of 24 February 2005, about the behaviour of the Tribunal at the hearing it conducted with the applicant. The applicant states he was "overborne" by the Tribunal as the Tribunal had no understanding and knowledge about Georgia, and its past and present, and that the Tribunal became "agitated" when he tried to explain. He further complained that the Tribunal's behaviour showed bias (see (c) below in light of (b) below).

b)

The applicant attached a cassette tape to the written submissions of 11 August 2005, when he filed the submissions in the Court registry. The tape, if it is the tape of the hearing before the Tribunal, is not submitted in any evidentiary context. Further, there is no explanation by the applicant, nor did he press at the hearing before me, that I should listen to the tape. In addition the submissions of

11 August 2005 (which clearly post date the submissions of 24 February 2005) do not make any complaint of bias or bad faith. The complaints in that document (putting aside the AD(JR) context) take issue with the Tribunal's findings of facts (it drew wrong inferences, did not understand the case, did not pay attention to the details of the case and failed to give adequate weight to relevant factors of great importance). These complaints in the submissions of

11 August 2005, even if made out in the context of what is claimed in paragraph 16 of the written submissions of

24 February 2005, in all the circumstances do not rise above a request for impermissible merits review. In light of the above, and in the absence of anything specific from the applicant, I did not see it as necessary to listen to the tape.

c)

The applicant complains of "procedural unfairness".

i.

The applicant's complaint at paragraph 16 of the written submissions of 24 February 2005 is that the Tribunal proceedings were "procedurally unfair" and that the "member" did not act in good faith and acted with apprehended bias. Both under the relevant statutory provisions of the Act and under common law the Tribunal has a clear obligation to ensure that an applicant has the opportunity to put all of his claims to the Tribunal, and is not discouraged by the Tribunal from presenting information on critical issues or claims. The applicant must be able to participate effectively in the hearing and the Tribunal is under a clear obligation not to act in such a way as to prevent this effective participation. The applicant alleges, and I note this is by way of submission and not evidence, that the Tribunal member created a "nervous" atmosphere, for example by complaining about the size of the chair that had been provided, and that instead of a "dialogue" the member kept the applicant under "pressure", had no understanding or knowledge about Georgia, and became "agitated" when the applicant tried to "explain something". I note also that the applicant states that at one point he was forced to apologise.

ii.

Vigorous critical questioning and repetitive questioning to test inconsistencies in an applicant's evidence, even with signs of exasperation, does not necessarily establish a breach of procedural fairness.

In Applicant NABT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 357 Allsop J. said that it is not only within the Tribunal's rights to question the applicant, but its duty to do so given that it was required to form a state of satisfaction one way or the other as to the applicant claims.

In Appellant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 French and Lee JJ., at [77] said:

"There is no evidence referred to in the submissions or apparent from the record that in fact the appellant had been prevented, by the adjournment, from giving further evidence to the Tribunal. And while she asserted, in her affidavit, that she felt as though the Tribunal member was bullying her during his questions of her in the hearing and that he and the interpreter were against her, there was no evidence to support that as an objective reality. It may be that the inquisitorial style of the Tribunal proceedings conveyed the impression that the member was challenging the appellant. But within reasonable limits the adoption of an inquisitorial approach does not constitute intimidatory conduct. This particular provides no separate basis for inferring procedural unfairness. But insofar as it exposes the undisputed subjective reactions of the appellant to the process in which she was engaged, it supports the finding that the unexpected denial of legal representation to her had an adverse effect upon her capacity to participate effectively in the Tribunal hearing process."

iii.

The applicant says that the Tribunal was "talking to" him in an "irritated way" and "blaming him". However, he does not say what evidence he was prevented from putting to the Tribunal as a result of this alleged behaviour. While he may have felt that he "was overborne", he has not directly pointed to any evidence to show that the Tribunal engaged in intimidating conduct such that he was prevented from presenting his case. At best the matters that he does point to go to the issue that the Tribunal took a different view of the facts to the one that the applicant wanted it to take. This does not go to show "procedural unfairness". The applicant now complains that the Tribunal put under question every single detail of the applicant's case. It was entitled to do so.

iv.

The applicant also made a stated claim of bias, apprehended bias and not acting in good faith on the part of the Tribunal. For the applicant's benefit in particular, I note that allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of bias carry with them an onus that the allegations must be distinctly made and clearly proved. Actual bias requires evidence of "prejudgement" by the decision-maker in the sense that he/she is "so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented." (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more evidence that just the conclusion reached by the Tribunal to support this claim. Nor do his assertions of the conduct of the Tribunal, in all the circumstances, show bias or apprehended bias on the part of the Tribunal. An allegation of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of "a fair-minded lay observer or a properly informed lay person" observing the Tribunal processes (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27] to [32]). In relation to any allegation that the Tribunal acted in bad faith, the claim in this case fails the test in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [18] to [20], because the allegation is not clearly alleged and proved, and no personal fault or absence of honesty on the part of the decision maker has been made out. Clearly, as has been held, bad faith implies a lack of an honest or genuine attempt to undertake the task at hand and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [107] to [108]. The applicant claims that he was "overborne", kept under pressure, not allowed to explain and that the Tribunal became irritated when he tried to explain. But beyond mere assertion and attaching a tape of the hearing to another set of written submissions (which themselves do not make this allegation), the applicant has put forward no specifics linked to any point of the hearing with the Tribunal to support this claim. There is nothing to support the allegation that even if the Tribunal was "irritated" that there was something specific and relevant that the applicant was prevented from putting to the Tribunal or something relevant that the Tribunal failed to take into account. The applicant's complaint that the Tribunal had no understanding about Georgia, or did not put the question "correctly", or even his complaint that the Tribunal did not consider the material that the applicant put forward does not, in the absence of anything else, amount to the procedural fairness or the apprehension of bias as claimed by the applicant. I am also mindful of the Full Federal Court analysis of this issue in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 where at [11] the Court said:

"In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s 425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense."

v.

Further, even if the applicant could show poor execution in the Tribunal's decision making involving error, this would still not be sufficient to establish that the decision was not reached bona fide. The critical issue is whether the Tribunal came to its task with an open mind taking into account any degree of scepticism with the applicant's claims that it may have formed on the material before it. The applicant, beyond mere assertion and complaint about the ultimate findings, has not pointed to any specific issue that would show that he was prevented from putting forward any claims or argument, or that the Tribunal came to the proceedings with a closed mind.

d)

I should also note that the documents attached to the applicant's written submissions of 24 February 2005 all postdate the Tribunal's decision and are, as Mr. Reilly for the respondents correctly submits, irrelevant to establishing any jurisdictional error on the part of the Tribunal. They are therefore inadmissible as evidence.

Although the applicant withdrew his written submissions of 20 August 2004, they appear to encompass some of the complaints that he made at the hearing before me. In addition, I am mindful that the applicant appeared unrepresented before me, and therefore considered the following further claims:

1. That the Tribunal made an error of law when it considered the current positions of the people involved in his persecution and complains that the Tribunal decided that because some of the people who carried out the persecution are no longer in power it would be unlikely that the new Georgian government would persecute him. The applicant claims that the misunderstanding of law on the part of the Tribunal is that it is not necessary for an applicant to show that the government of the country is carrying out the persecution, but that the Convention requirement would be met if the government of the country does not afford protection to the applicant and that the persecution is tolerated by the government of the country. The applicant's complaint is that the Tribunal did not consider whether the new government would be willing to afford protection to him taking into account all the circumstances and complexities of his case. He emphasised at the hearing before me that there was no evidence to support the finding that changes had occurred in the political climate in Georgia and that the new government was not interested in him. The applicant then proceeds, by way of the earlier written submission, to argue why the new government would not provide protection to him. This ground must fail. It is clear that the Tribunal did consider the situation of the people who were involved in the action against him and also considered the availability of adequate protection provided by the new government of Georgia to the applicant (see generally CB 125.7 to CB 127.3), and made findings which were open to it on the material before it.

2. The applicant also complained that the Tribunal did not comply with the "principles of natural justice" in that it did not consider crucial matters that were relevant to his case. This also appeared to be linked to a general thread of the applicant's complaint at the hearing before me that the Tribunal did not take into account important matters in his case. In the written submissions the applicant correctly states that if a Tribunal makes an adverse finding in relation to a material claim made by the applicant, but was unable to make that finding with confidence, that is, that it was attended with sufficient doubt, it must proceed to assess the claim on the basis that the claim might be true. I saw this as a reference to the 'what if I am wrong' test as expounded by the High Court in Guo & Anor v Minister for Immigration and Multicultural Affairs (1997) 191 CLR 559 at 576 and as explained by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220. However the applicant's complaint does not point to any specific instances where the Tribunal's findings were attended with sufficient doubt as to cause it to ask the 'what if I am wrong' question. The applicant's complaint appears to be that the Tribunal did not proceed in his case with the possibility that his claims were true, and that the Tribunal chose not to believe his claims when the information provided by him was, in his view, "abundant", and that the Tribunal could not have come to the conclusions which it did. In this regard the applicant has misunderstood what has been set out by the relevant authorities. The Tribunal is not required to accept an applicant's claims uncritically from the beginning. The Tribunal is entitled to critically test an applicant's claims and it is only during the process of testing those claims, if it then makes a finding that is attendant with sufficient doubt, that there is the requirement to ask the 'what if I am wrong' question. There is no such requirement for the Tribunal to accept the applicant's claims uncritically which is what the applicant appears to be arguing now. The applicant complains that the material which he provided, including the newspaper articles, relating to his imprisonment which marked the beginning of his "persecution", shows there was persecution because of his political opinion. The Tribunal clearly focused on this issue, and in particular at SCB 125.8 says that it took "stock" of the Federal Court views regarding the applicant's claims of persecution for reasons of political opinion and accepted that the applicant was wrongly implicated in the robbery case. In fact, at SCB 125.9, it did go on to consider the possibility that the people carrying out the "dirty work" of putting the applicant behind bars knew that they were using the criminal law to get at someone who was described to them as a political opponent of the government of the day. The Tribunal made a finding that even if it accepted that this was the case, and that those officials thought at the time they were serving some covert political aim, the whole exercise collapsed in December 1997. That, and the subsequent findings made by the Tribunal were all open to it on the material before it. The fact that the Tribunal gave weight to some material and different weight to other material and the fact that it made findings that were not to the applicant's liking, do not go to show that the Tribunal failed to properly apply the relevant legal principles. This ground cannot be made out.

3. The applicant complained that there has been a change in the current situation in Georgia after the Tribunal's decision. Given that it is the Tribunal decision that is the subject of review, subsequent events and information about Georgia are therefore irrelevant and this complaint also cannot succeed to show error in the Tribunal's decision.

4. The applicant complained that the Tribunal misunderstood his case and gives examples of mistakes made by the Tribunal. The complaints are:

a)

That at SCB 97.2, in looking at the applicant's claims, the Tribunal said that the applicant claimed he only served

4 months of his three-year sentence. The applicant claims he spent 1 year and 4 months in prison. I note that the applicant does not point to any material that supports his claim. In addition the applicant himself said in a letter to the Tribunal, reproduced at SCB 127, that he was released four months later after being sentenced to three years. In any event, the time served in prison is not relevant to the Tribunal's ultimate decision. The Tribunal does not rely on the term of imprisonment, other than making a reference at SCB 123.5 that the applicant had said that he was freed after four months. The important finding in this regard was that the Tribunal accepted that the applicant had been a victim of a miscarriage of justice in 1996-97 and had been in prison. None of the subsequent findings rely on the period of imprisonment in any way.

b)

The applicant complained that the Tribunal found, at SCB 121.7, that the applicant travelled to Russia in 1981 on a Georgian passport. He claimed that in 1981 there was "no Georgia" it was only the "USSR". This is not a finding made by the Tribunal. It is recorded as a notation under the heading "Claims and Evidence" of the applicant. In any event, this is not relevant to any findings made by the Tribunal, and even if there had been a factual error, it does not appear to be a matter on which the Tribunal relied in making its findings and ultimate decision.

c)

The applicant complains that the Tribunal found that he had been cleared of all wrongdoing with the help of Parliament (SCB 123) and that further at SCB 125.2, that the Tribunal said that there was no reason to conclude that, as he had been cleared of all wrongdoing, he would have been placed under house arrest again. The applicant argues now that the Tribunal did not understand his case because he claims that his "name" was never cleared by the Georgian Parliament and that the Georgian government would not afford him protection because he possessed information which was detrimental to the image of Georgia particularly in relation to the past arms trade in Chechnya. The claim relating to the arms trafficking, the applicant's opposition to it, and the threat that this posed to him was before the Tribunal (SCB 102). The Tribunal dealt with the applicant's claims that General Chkeidze was concerned to protect his own business and that he conspired against him, and also looked at the claim that the applicant's efforts to oppose the gunrunning trade had the potential of undermining the political power as well as the personal wealth of Sadjaia (SCB 126). Again the issues relating to gunrunning went to the issue of the events of 1996 and 1997 with which the Tribunal dealt. In relation to protection in the future, the Tribunal made clear findings at SCB 126 that the whole case against the applicant, including the possibility that there was a covert political aim, collapsed in December 1997, and that there was no evidence of any subsequent attempts to persecute the applicant in any way, for any reason, real or contrived. Further, the Tribunal found there was overwhelming evidence of a significant change in political circumstances in Georgia in November 2003 and January 2004 with a new government dedicated to cleaning up corruption and bringing past miscreants to justice. The Tribunal further found that the new government did not regard the applicant as a political threat and that the new government would uphold the applicant's social, cultural, economic and political rights (SCB 126). While the applicant may disagree with the Tribunal's findings, such disagreement does not go to establish that the findings that the Tribunal made in this regard were not open to it on the material before it.

d)

The applicant further claimed that the Tribunal found that there was no evidence of subsequent attempts to persecute the applicant in any way or for any reason, real or contrived. Further, that the Tribunal did not, in the circumstances, consider his claims about the threats of his life in the future. In this regard, I note that the Tribunal's finding that the new government did not see the applicant as a political threat, and that on information available to the Tribunal, the new government and the opposition would uphold the applicant's social, cultural, economic and political rights and did not accept the applicant faced a real chance of being persecuted in Georgia for reasons of political opinion, whether imputed or real, are sufficient findings to address the applicant's complaint. The Tribunal did consider the applicant's claims in this regard and made findings which were open to it. The applicant's complaint now is really a complaint that the Tribunal made a finding with which the applicant disagrees.

Putting aside the issue of the AD(JR) Act, the applicant's written submissions of 11 August 2005 cover the same matters raised by the applicant in the other written submissions and what he said at the hearing before me. I agree with Mr. Reilly, who appeared for the respondents, that they suffer from the same difficulty as the other submissions in that they seek to challenge the Tribunal's factual findings and the Tribunal's view of the merits of the applicant's case. While the submissions allege errors of law it is clear that the examples of particulars given really go to challenge the Tribunal's factual findings:

1. The first alleged error is that the Tribunal drew the wrong inferences from the facts. The applicant gives as the example his complaints about the Tribunal's finding that his imprisonment was a result of a mistake on the part of the law-enforcement organs of Georgia, and that this was not an inference that could have properly be drawn from the material before the Tribunal. He claimed he was deliberately and "knowingly" put in prison as a result of the cooperation of "the high state organs" of Georgia. The Tribunal dealt with this issue, and it is clear that in this regard, as I have already set out, the inferences that were drawn by the Tribunal were open to it on the material before it. In any event, inferences that are to be drawn from the facts are of course a factual matter for the Tribunal. Similarly, the applicant's complaint regarding the availability of protection under the new government in Georgia (as set out above) was dealt with by the Tribunal and the applicant's complaints now do not rise above a mere disagreement with the Tribunal's finding.

2. The second error alleged by the applicant in the written submissions of 11 August 2005 is that the Tribunal did not pay attention to the details in the applicant's case and misunderstood his claims. The particulars are that the Tribunal was wrong in one crucial fact, and that is the term of imprisonment served by the applicant. I have already dealt with this issue. Secondly, that his name has never been cleared by the Attorney General's office or the Parliament of Georgia. The Tribunal clearly dealt with this issue in making the findings as set out elsewhere in this judgment. It was entitled on the material before it, and in all of the circumstances of the applicant's case, to make the findings that it did. Similarly, the Tribunal was entitled to find that the new government of Georgia would provide protection. The applicant's complaints now in this regard indicate simply the applicant's disagreement with the Tribunal's factual findings

3. The third alleged error is that the Tribunal was unreasonable in the exercise of its power. The example given was that it did not give adequate weight to certain aspects of the applicant's claims particularly in relation to the harm that he feared from high profile political figures regarding the arms dealing, and additionally did not give adequate weight to the issue of his ethnicity and the safety of ethnic Ossetians in Georgia. Clearly the Tribunal did address both of these issues. The applicant's complaints now do not rise above a disagreement with the Tribunal's assessment of the applicant's claim to be a refugee. The Tribunal's findings of fact are matters for the Tribunal and in any event, on the examples given by the applicant, on what was before the Tribunal, the findings were open to it.

The Tribunal's decision record clearly shows that the Tribunal did consider and examine the applicant's claims in some considerable detail, and did look at both Convention grounds of race and political opinion, including imputed political opinion. Significantly, the Tribunal accepted that the applicant had been a victim of a miscarriage of justice in 1996-97 and that he had been cleared of wrongdoing by the Georgian Parliament. In any event, the whole exercise of the action taken against him, based on the ground of political opinion, collapsed in December 1997. Further, the Tribunal found that there had been a change in government in Georgia, and that the new government had no interest in the applicant for any Convention related reason. Also, that the Tribunal was "even more" confident that the government of Georgia was committed to protecting the applicant's rights. To the extent that the Tribunal made findings that aspects of the applicant's claims were not accepted by it, there is nothing before me to show that any of these findings were not open to the Tribunal on the material before it. The fact that the applicant complains that the Tribunal did not understand his claims or that he does not agree with the findings made by the Tribunal, does not alter the situation that the findings the Tribunal made were all open to it on the material before it. To some great extent the applicant is now seeking merits review of the Tribunal's decision, and in part his claims now are based on events subsequent to the date of the making of the decision by the Tribunal. It is, of course, outside the power of this Court to conduct a merits review of the Tribunal's findings in relation to the applicant's claims. I can see no jurisdictional error in the Tribunal's decision. This is a privative decision within the meaning of s.474 of the Act. The application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM