Gulishvili v Minister for Immigration & Multicultural Affairs [2002] FCA 122 (11 February 2002)

Last Updated: 25 February 2002

FEDERAL COURT OF AUSTRALIA

Gulishvili v Minister for Immigration & Multicultural Affairs [2002] FCA 122

MIGRATION - application for a protection visa - review of decision of Refugee Review Tribunal

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Act 1958 (Cth) Part 8, s 476(1)

Convention Relating to the Status of Refugees 1951

ROLANDI GULISHVILI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1180 OF 2001

HELY J

11 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1180 OF 2001

BETWEEN:	ROLANDI GULISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	11 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application for an Order of Review dated 10 August 2001 be 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 1180 OF 2001

BETWEEN:	ROLANDI GULISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	11 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for a review of a decision of the Refugee Review Tribunal ("RRT") made on 20 June 2001. RRT affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. The Application for an Order of Review was filed in the Federal Court on 10 August 2001, prior to the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001. The application is therefore governed by the provision of Part 8 of the Migration Act 1958 (Cth) ("the Act") as it stood prior to 2 October 2001.

2 The grounds of the application are:

"(1) Procedures, the [sic] were required by the Act to be observed in connection with the making of the decision where [sic] not observed (s 476(1)(a)).

(2) The decision involved an error of law, being an error involving incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s 476(1)(c)).

(3) There was no evidence or other material to justify the making of the decision."

3 No particulars of those grounds are to be found in the application, nor did the applicant comply with the direction given by the Registrar on 6 September 2001 that the applicant should file and serve an outline of his submissions at least five working days prior to the date fixed for the hearing of this application.

4 The applicant is a citizen of Georgia and is of Ossetian ethnicity. He arrived in Australia on 18 April 1999. On 27 May 1999 he lodged an application for a protection visa. The applicant claimed to fear harm from ethnic Georgians because of his Ossetian ethnicity. He relied upon specific incidents which he claimed occurred in 1990, 1993 and 1998 in support of his claim. RRT accepted that the applicant had been abducted by ethnic Georgians in June 1990, held for 2 weeks and physically mistreated. This abduction was motivated by the applicant's ethnicity. However, the circumstances which were the catalyst for the abduction ceased when a cease-fire was signed between Georgia and the self-proclaimed South Ossetian Republic in July 1992.

5 RRT accepted that the situation has been stable and calm since that cease-fire. RRT was satisfied on the basis of the independent information available to it and the applicant's own evidence, that the applicant does not have a well-founded fear of persecution by reason of his Ossetian ethnicity by Georgian commandos or militia in the context of South Ossetia's attempts to achieve independence.

6 RRT accepted that the applicant was again abducted in January 1993. However, RRT found that the applicant's abduction on this occasion was a criminal act undertaken for profit by criminals. RRT was not satisfied that he was abducted and held for ransom because he is ethnic Ossetian. Even if the abduction were racially motivated, which RRT did not accept, RRT found that the State did not condone abduction for ransom, nor was the State unwilling or unable to protect the applicant from harm on that account. The applicant made no attempt to seek the protection of the authorities after the incident or even to report the incident to the authorities.

7 RRT found that the applicant was not truthful in his claim to have been evicted from his home in 1998 by Georgian commandos. RRT did not accept the applicant's claim that he was evicted from his house in November 1998, whether for a Convention reason or otherwise.

8 RRT appears to have accepted that there were some incidents in which neighbours threw rocks at the applicant's house and verbally abused him on the basis of his ethnicity. Those incidents are not described in any of the documents emanating from the applicant which are included in the green book, and I assume that they were the subject of some elaboration at the hearing. RRT found that whilst those incidents would no doubt be upsetting and frightening, it was not satisfied that such harm was sufficiently serious to constitute persecution within the meaning of the Convention. RRT went on to consider the position of Ossetians generally in Georgia, and found no evidence that the State condones discrimination against ethnic Ossetian-Georgians, or that the State is unwilling or unable to protect such persons from private harm.

9 RRT also rejected the applicant's claim that he was obliged to pay a bribe to obtain his passport because of his ethnicity. RRT considered the various claims put forward by the applicant as well as independent country information which was available to it. It is RRT rather than this Court, which has the power and the responsibility of assessing those claims. Having done so, RRT was not satisfied that the applicant had a well-founded fear of persecution by reason of his Ossetian ethnicity.

10 This Court is not entitled to interfere with RRT's findings on that question unless one of the grounds of review listed in s 476(1) of the Act is made out. Mr Gulishvili said to me that he does not understand the law, and hence he cannot identify an error of law. I sympathise with the predicament in which a person such as Mr Gulishvili finds himself and full allowance is made, of course, for his lack of understanding of the English language and for his unfamiliarity with the Australian legal system. However, I am bound by the law and I am not entitled to interfere with the decision of RRT unless it is shown to have made one of the errors which justifies intervention. There is nothing in the Application for an Order of Review, or in the submissions which have been put to me by the applicant, which establishes the availability of any of the grounds of review referred to in s 476.

11 The applicant says that if he did not fear persecution, he would not have left his country. He also said that RRT displayed indifference to him. I am not in a position to assess whether or not RRT displayed indifference to the applicant but I should say that a reading of its decision does not suggest that this is so. In any event, even if RRT were indifferent to the applicant's position, that would not establish one of the grounds of review under the Act unless that indifference amounted to actual bias. Bias was not one of the grounds on which a review of the decision was sought. There is nothing in RRT's reasons which would suggest that it was biased.

12 It follows that the Application for an Order of Review must be dismissed with costs. I therefore order:

(1) that the Application for an Order of Review, filed with the Court on 10 August 2001, be dismissed;

(2) that the applicant should pay the respondent's costs of this application.

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

Associate:

Dated: 20 February 2002

	The applicant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 February 2002
Date of Judgment:	11 February 2002