Gogoladze v Minister for Immigration & Multicultural Affairs [2001] FCA 118 (26 February 2001)

Last Updated: 26 February 2001

FEDERAL COURT OF AUSTRALIA

Gogoladze v Minister for Immigration & Multicultural Affairs [2001] FCA 118

MIGRATION - application for order of review of Refugee Review Tribunal decision affirming delegate's decision not to grant protection visa - whether there was evidence or other material to justify the making of the decision - whether decision made on the basis of the existence of a particular fact, and that fact did not exist - whether findings appropriately characterised as findings of the non-existence of facts - onus on applicant to bring before the Tribunal material and evidence sufficient to satisfy it of the applicant's entitlement to a protection visa

Migration Act 1958 (Cth) ss 476(1)(g), 476(4)(b)

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 applied

N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993 discussed

Merabishvili v Minister for Immigration & Multicultural Affairs [2000] FCA 1879 discussed

KHVICHA GOGOLADZE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1059 OF 2000

MOORE J

26 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1059 OF 2000

BETWEEN:	KHVICHA GOGOLADZE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	26 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed

2. The applicant pay the respondent's costs

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1059 OF 2000

BETWEEN:	KHVICHA GOGOLADZE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	26 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for judicial review by Khvicha Gogoladze ("the applicant") of a decision of the Refugee Review Tribunal ("the Tribunal") of 10 August 2000 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a protection visa. Similar decisions were made in relation to eight other Georgian nationals who travelled to Australia with the applicant but those decisions were not in issue in these proceedings. Applications for judicial review of several of them have been heard by other Judges of this Court.

2 The following appears from the Tribunal's reasons. The applicant is a national of Georgia. He arrived in Australia on 8 July 1998. It was not in issue that the applicant was one of nine men who travelled together to Australia from the same district in Georgia, specifically the town of Akhaltsikhe. Their visas were obtained by one of the men on the false basis that the group would travel to Australia as supporters of a youth soccer team. The applicant left Georgia one week later than the other men and joined them in Istanbul, Turkey.

3 The Tribunal noted (at p 4 of its reasons) that:

The Tribunal as presently constituted dealt with six of the nine cases. The Tribunal began each of its six hearings with an acknowledgement that the applicant before the Tribunal was part of a group and noted that the Tribunal as presently constituted was hearing six of the nine cases. The Tribunal further noted that under the circumstances, each of the six applicants would be a witness for the others.

4 The applicant's claims were put before the Tribunal in written submissions, which were presented to the Tribunal as the submissions of all nine members of the group. The applicant claimed that he was a member of the Akhaltsikhe group, which supports the Gamsakhurdia party, named after a former president of Georgia who was deposed in January 1992. The applicant's evidence before the Tribunal was that followers of the deposed president met regularly and organised rallies against the current Shevarnadze government. The group claims that elections in Georgia have not been free and fair and that the government uses violence to suppress opposition to it.

5 In its reasons, the Tribunal set out the applicant's written submissions (which were the submissions of all the applicants) and made the following findings of fact. It accepted that the applicant was a member of a small political discussion group though concluded that the group was not an organised political party or organisation. The applicant attended "meetings", which the Tribunal took to mean public gatherings or demonstrations organised by the group. The applicant attended three public meetings that were organised by the group. The Tribunal accepted that at the second of these meetings there was police violence and that some of the participants received random blows from the police. The Tribunal found that there was no further interest in the group from the authorities. At the third public meeting, the police made some arrests, although the applicant was not aware of these at the time. The applicant did not return home, fearing that the police would be looking for him. He remained in hiding for over a month. The Tribunal did not accept that the authorities had any adverse interest in the applicant and that there was no logical reason for the applicant to remain in hiding. The Tribunal rejected the applicant's claims that he was in hiding because members of the group had been imprisoned or tortured. The Tribunal said it rejected "[the applicant's] claim that he went into hiding in the woods". The Tribunal found that these claims were made "in hindsight - with the knowledge (or assumed knowledge) of later events".

6 Further, the Tribunal found that there was "no connection between the applicant's political views and his departure from Georgia". Therefore there was no adverse interest in the applicant by the Georgian authorities for reason of the applicant's political views. The Tribunal was satisfied that if the applicant were to return to Georgia, there was only a remote chance that the applicant would suffer harm amounting to persecution for a Convention reason.

7 The Tribunal relied on independent country information to satisfy itself that it should reject the applicant's claim that he feared future arrest because five members of the group had been imprisoned for more than two years without trial. The Tribunal concluded that the independent country information did not support this claim, particularly because detention without trial in Georgia would have come to the notice of a human rights monitor.

8 The applicant represented himself in the proceedings in this Court. The grounds of review set out in the application were that the Tribunal failed to follow procedures prescribed by the Migration Act 1958 (Cth) ("the Act"); that there was an error of law of the kind contemplated by s 476(1)(c) of the Act; and that there was no evidence to justify the making of the decision. The application did not contain any particulars of these grounds. At the commencement of the hearing before this Court, the applicant handed up written submissions in which he claimed that the Tribunal fell into error because it did not have any evidence or other material to justify the making of the decision: s 476(1)(g), and based its decision on the existence of a particular fact, and that fact did not exist: s 476(4)(b). These written submissions can, in my opinion, fairly be treated as identifying the issues sought to be raised in the application.

9 In those submissions, the applicant identified a range of matters or findings which the applicant viewed as having founded the Tribunal's conclusion that he should not be believed. The applicant complained, in substance, that there was no evidence to establish those matters or support those findings. The applicant also referred to findings made by the Tribunal in another matter concerning the events occurring during and after the rally on 26 May 1998 (the third public meeting) and, in effect, submitted that the findings of the Tribunal about him could not have been made having regard to the findings in the other matter. The applicant took issue with the Tribunal's assertion that he had claimed he went into hiding in the woods. He also said there was no evidence establishing there was no connection between his political view and his departure from Georgia or that the authorities had had no interest in him since his departure or would have no interest in him. The applicant also put in issue what was characterised as a finding that "Z" (another of the nine men who travelled to Australia with the applicant) had not signed a document indicting the applicant. He also criticised the Tribunal's train of reasoning based on an assumption that, in fact, a colleague had signed a confession. The applicant took issue with the use by the Tribunal of independent country information as "evidence".

10 It can be seen that what the applicant has complained about concerns the process of fact-finding undertaken by the Tribunal and findings it made. It is, generally, no part of the function of this Court to review the process of fact-finding or make its own findings of fact on the material which was before the Tribunal. This Court does not undertake merits review and undertakes judicial review limited by the grounds identified in s 476 of the Act. The principal ground in the section concerning evidence and findings of fact is s476(1)(g) but read with s476(4). The applicant may or may not have appreciated this though it is the ground referred to in the written submissions.

11 The ground relied upon by the applicant requires him to establish that the decision was based on the existence on a particular fact and that fact did not exist. However, in order to establish that a particular fact did not exist, the party seeking to do so must adduce admissible evidence or otherwise demonstrate its non existence: Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 224. The present applicant has proffered no such evidence and the material before the Court does not demonstrate that any fact found by the Tribunal and identified by the applicant in his submissions, did not exist. Even if a particular fact identified by the applicant had been shown not to exist, the applicant would have then faced the task of establishing that the Tribunal's decision was based on the existence of that fact. That is, it was a fact essential to the decision in the way discussed in Curragh Queensland Mining Limited v Daniel. It is for the applicant to persuade the Court that the Tribunal's decision was made contrary to s 476(4)(b): N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993 at para 22; Merabishvili v Minister for Immigration & Multicultural Affairs [2000] FCA 1879 at para 8. [The latter is a matter related to the present proceedings. They are substantially factually similar, with the exception that the applicant went into hiding and joined the group later.]

12 The applicant has not demonstrated reviewable legal error. Accordingly the application should be dismissed and the applicant ordered to pay the respondents costs

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 26 February 2001

The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 December 2000
Date of Judgment:	26 February 2001