FEDERAL COURT OF AUSTRALIA BLF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 55 Appeal from: BLF16 v Minister for Immigration and Border Protection [2019] FCCA 1503 File number: NSD 1055 of 2019 Judge: GRIFFITHS J Date of judgment: 6 February 2020 Catchwords: MIGRATION – whether the primary judge erred in not finding that the Administrative Appeals Tribunal failed to consider an integer of the appellant's claim – whether the primary judge erred in finding that the appellant had not claimed that the fact of his membership of a political party increased his risk of harm Cases cited: BLF16 v Minister for Immigration and Border Protection [2019] FCCA 1503 Date of hearing: 3 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: Mr D Godwin Solicitor for the Appellant: Brett Slater Solicitors Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Mills Oakley ORDERS NSD 1055 of 2019 BETWEEN: BLF16 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 6 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, as agreed or taxed. 3. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: Introduction 1 The sole ground of appeal is the appellant's claim that the primary judge in the Federal Circuit Court of Australia (FCCA) erred in not accepting the contention that the Administrative Appeals Tribunal (AAT) fell into jurisdictional error when it failed to deal with his claim that he was entitled to protection because he had joined the United National Movement (UNM Party) in Georgia on 18 October 2013. 2 The appellant is represented by the same counsel who appeared for him in the FCCA proceeding below. The FCCA's decision is reported as BLF16 v Minister for Immigration and Border Protection [2019] FCCA 1503. 3 For the following reasons, the appeal will be dismissed, with costs. Summary of background facts 4 The appellant is a citizen of Georgia, who arrived in Australia in November 2013. He applied for a protection visa. Before the delegate, the appellant contended that ex-prison members of the police and mercenaries had abducted, assaulted and framed him so that he would cease his support for the UNM Party. These claims were not accepted by the delegate as credible. 5 The appellant also claimed that he was an active member of the UNM Party in Georgia and that he feared that he would be persecuted by its political rival, the Georgia Dream Party, if he were returned to that country. 6 The appellant claimed before the delegate that he had joined the UNM Party in January 2008 after Russia invaded Georgia. The delegate did not accept this as the Russian invasion had not occurred until August 2008. As will emerge, before the AAT the appellant admitted that he had not become a member of the UNM Party until 18 October 2013 and he also admitted that his membership was designed to enhance his claims for protection in Australia. 7 The single ground of appeal relates to the AAT's consideration of the appellant's claims regarding his membership of the UNM Party. Although the AAT accepted that he had joined that party on 18 October 2013, the appellant complained that it did not assess his claims to protection on the basis of his membership of that party. In particular, he complained that all the AAT relevantly did was to observe that the appellant had not held any positions or was a member of the UNM Party in the past and then proceeded to make findings as to whether he would be at risk of harm "for these individual circumstances". The appellant complained that the AAT erred in making no finding about the effect of his membership of the UNM Party as to his future if he were returned to Georgia. (a) The AAT's reasons summarised 8 At [19] of its reasons for decision, the AAT referred to the appellant's written submissions dated 1 October 2014. These submissions were sent to the delegate in response to a letter dated 25 August 2014, which set out various matters arising from the appellant's interview with the delegate. In those submissions, the appellant provided additional information about the circumstances concerning his departure from Georgia. In particular, the delegate was told that, prior to his departure to the United Kingdom, the appellant was abducted, severely physically assaulted and robbed of a large amount of money by unidentified assailants. The submission added that the appellant believed that he was targeted for extortion because he had a profile of a relatively wealthy person and that such attacks were common for wealthy people. He added that he did not seek police protection because he suspected that his attackers were associated with the police. It was in these circumstances that he said that he left Georgia on a six month business visa in the United Kingdom. 9 The AAT also described at [21] ff certain matters which had occurred at the AAT hearing on 10 March 2016. The AAT noted that the appellant had conceded that he had not previously disclosed relevant information concerning what happened in England and Ireland. It recorded at [22] that when he originally left Georgia in 2006, he was fleeing harm relating to his abduction and assault because of his wealth. The AAT then proceeded at [23] ff to record the appellant's claims as to his political activities after he returned to Georgia in 2011. These activities included his work driving a minivan for hire and transporting the UNM Party members, as well as handing out brochures and volunteering at the UNM Party office. 10 The AAT referred at [25] to the appellant's concession that he was not harmed or threatened on any occasion while in Georgia between 2011 and his departure to come to Australia in mid-November 2013. It found that he considered that he was not abducted at this time or told to resign from the UNM Party and that all his claims relating to the police setting him up with a false charge of possessing a weapon were false and created to assist his claims for protection. At [26] the AAT recorded that the appellant first became a member of the UNM Party just before he left Georgia and that was because he had been told by the person who helped him to obtain an Australian visa that the membership card would assist with his protection claims in Australia. 11 It may be inferred, therefore, that the AAT proceeded on the basis that the appellant's claims for protection included not only his claims regarding the abduction in 2006 but also his political activities upon returning to Georgia in 2011, and the fact that he became a member of the UNM Party on 18 October 2013. 12 Significantly, the AAT made an express finding at [29] that the appellant was not a member of the UNM Party until 18 October 2013 and that he did not experience any harm in Georgia prior to his departure "for this reason". The AAT found at [29] that the appellant "was not abducted by three men, beaten and threatened with a knife on 27 November 2012". The reference to being threatened with a knife on 27 November 2012 is a reference to what the appellant had claimed in his statutory declaration dated 9 December 2013. The AAT gave detailed reasons at [29] as to why it rejected the appellant's claims regarding the alleged abduction in 2006. 13 It is necessary to set out [33] to [35] of the AAT's reasons for decision, which record its consideration and determination of the appellant's claims for protection based on his political activities (footnotes omitted, typographical errors in original): 33. The Tribunal has considered the applicant's claim that he would be at risk as supporter of the UNM, because the criminals were now feeling very comfortable in Georgia and they were targeting people who supported the UNM. Members of the Georgian Dream Party were also arresting UNM members and/or they were threatened with prosecution. The applicant conceded that he was not actually a member of the UNM prior to 18 October 2013, and then only joined for the purposes of a Protection claim in Australia. However he maintained that his original claims about his association from 2011 with the UNM was all true. It is accepted that he may have driven around UNM pay members during the 2012 election campaign in the course of his emp1oyment as a minivan driver and that the applicant may have discussed his support for the UNM with other passengers in his car. However, the Tribunal is not satisfied that his association with the UNM went beyond this. The Tribunal does not accept that the applicant had been involved in organising rallies and getting people to join or vote for the UNM, that he tried to raise awareness about the party or that he had otherwise been involved in any activities of the UNM. The Tribunal does not accept that he volunteered or campaigned for the UNM in any capacity during the general or presidential elections. The applicant was unsure how many seats the UNM obtained in the 2012 elections or the percentage of the vote they received. He suggested that it might have been 20%. According to the OSCE report, the United National Movement won 40% of the votes and Georgian Dream won 55%. Similarly he could not identify the percentage of the vote for the UNM candidate in the 2013 presidential elections, although he claimed to have volunteered for both campaigns. The Tribunal has formed the view that the applicant's knowledge concerning the UNM was not consistent with his claimed campaigning and involvement. It is further not plausible-that he would have volunteered to the extent that he claimed without actually becoming a member. 34. The Tribunal finds that applicant's political involvement has never been significant. The Tribunal is not satisfied that he engaged in any activities other than transporting some UNM party members, distributed some brochures and had general discussions with customers in his minivan. He did not hold any positions or was a member of party, and the Tribunal finds that he did nothing of importance. The Tribunal has nevertheless evaluated whether he would be at risk of harm for these individual circumstances. The 2012 election saw the first peaceful transfer of power since Georgia's independence in 1992; with the Georgian Dream party of winning an overall majority and its representatives assuming the prime ministerial and all other cabinet positions on 25 October 2012. As noted above over 40% of the country supported the UNM in the 2012 elections. The Tribunal has had regard to various independent sources including those cited in the applicant's representative's submissions, that in the wake of the election, there was 'a wave of arrests of high-profile opposition politicians' and senior officials of the former government while others 'fled the country in fear of possible prosecution by the new authorities. The circumstances of the applicant do not fit this profile. The country information does not support that there was wide scale persecution of low lever supporters. For example, the Report on the Protection of Human Rights and Freedoms in Georgia 2013, prepared by the Public Defender of Georgia was published on Humarights.ge in April 2014. The report described the political atmosphere in Georgia from the 2012 parliamentary elections through to the 2013 Presidential elections: The Year 2013 was less dramatic compared to turbulent 2012 resulting in peaceful change of power following October parliamentary elections. Compared to extremely charged-up pre-election period ahead of parliamentary elections, presidential elections proceeded in the atmosphere of peace and non-violence. Although the public witnessed a year-long painful cohabitation of the two main political powers, this tension did not translate into fundamental changes in overall human rights protection. The Tribunal is not satisfied on the individual circumstances of the applicant that there would be any reason to harm or kill the applicant. The applicant conceded that he did not experience any harm or threats of harm due to his support for the UNM prior to his departure and, if the Georgian Dream Party members wished to do that, the Tribunal considers that some steps would have been taken prior to the applicant's departure in November 2013. The Tribunal does not accept that the applicant would be of any interest to Georgian Dream supporters or criminals associated with the Georgian Dream Party for this reason. 35. On the basis of the evidence before it the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Georgia now or in the reasonably foreseeable future arising essentially and significantly for one or more of the five Convention reasons. Rather, it is the Tribunal's view that the applicant fabricated and tailored his claims in order to achieve a preferred migration outcome and they are not credible. The FCCA's reasons for judgment summarised 14 The sole ground of judicial review below was that the AAT "failed to complete the exercise of its jurisdiction as it has failed to assess the applicant's claim to protection from future political persecution on the basis of its own factual finding that the applicant had joined the UNM party as a member on 18 October 2013". 15 The primary judge summarised at some length the reasons of both the delegate and the AAT for rejecting the appellant's claims for protection. 16 The FCCA's reasons for rejecting the sole ground of judicial review may be summarised as follows. The primary judge explained at [54 to [63] why this ground failed. The primary judge noted that the AAT had accepted the appellant's claim that he joined the UNM Party in October 2013 and that the AAT had addressed the appellant's claims concerning his fear of harm as a UNM Party supporter or member at [33] to [34] of the AAT's reasons. The primary judge reasoned that because the appellant did not claim to fear future harm simply because of his current membership of the UNM Party, divorced from his claimed past activities supporting that party, the AAT's consideration of the appellant's individual circumstances and whether he had a profile that put him at risk sufficiently addressed the fact that the appellant had joined the UNM Party in October 2013. Consideration and determination and the appeal 17 The appellant carried the burden of proof in both the FCCA and in the appeal. Accordingly, he carried the burden of establishing that the mere fact that he claimed to be a member of the UNM Party since 18 October 2013 was an integer of his claims to be entitled to protection. 18 The appellant did not adduce in evidence below a copy of the AAT transcript even though he had been provided with an audio copy. Nor did he seek to adduce that evidence on the appeal. In those circumstances, and absent any evidence to the contrary, the appeal should be conducted on the basis that the AAT's reasons accurately reflect how the case was presented before it. 19 I am not satisfied that any appealable error has been demonstrated in the FCCA's rejection of the appellant's contention that the AAT failed to deal with an integer of his claims. 20 The primary judge's core reasoning for rejecting the judicial review complaint is reflected in [57]-[63] of the FCCA's reasons for judgment (emphasis in original): 57. The Applicant did not claim that the act of joining the UNM in itself was separate from or added to the basis on which he claimed to fear harm in the future in Georgia as a "supporter" of the UNM. As pointed out by the First Respondent, in submissions to the Department it had been contended that the Applicant feared harm based on his high level of involvement in the UNM, over and above that of an ordinary member. However those claims were made before the Applicant conceded that he only joined the UNM in October 2013. His later claims were based on his association with UNM from 2011 on, which the Tribunal found had never been significant. 58. I am satisfied that, reading the Tribunal reasons fairly in light of the decision as a whole, it is clear that the Tribunal considered the Applicant's political involvement (which included becoming a member of the UNM in October 2013) as part of his individual circumstances. It found that his involvement had never been significant. It then evaluated whether the Applicant would be at risk of future harm for his "individual circumstances" in light of country information which it found did not support any contention that there was wide-scale persecution of low‑level supporters of the UNM and suggested there had been an atmosphere of peace and non-violence in 2013. 59. The Applicant did not claim to fear future harm simply because he had joined the UNM in October 2013 divorced from his claimed past activities and support for the UNM from 2011 on. He did not claim that the fact of membership increased his risk of harm. The Tribunal recorded his claims about arrests of and threats to UNM members. However it considered 2012 country information did not support any claim that there was wide-scale persecution of low level supporters of the UNM and referred to information about a more peaceful and non-violent atmosphere in Georgia in 2013. There is no suggestion that the country information before the Tribunal suggested that membership of the UNM in itself would attract or contribute to a real risk or chance of future harm within the Refugees Convention or complementary protection criterion for a person found to have had no prior significant political involvement. 60. I am satisfied that the Tribunal took the Applicant's membership of the UNM in October 2013 into account as part of his "individual circumstances" in considering the chance or risk of future harm. It found that there would not be any reason to harm or kill him in circumstances where he had not experienced any harm or threat of harm due to his support for the UNM prior to his departure in November 2013. It rejected the notion that he would be of any future interest to Georgian Dream supporters or associated criminals by reason of his individual circumstances. Such circumstances included his membership of the UNM from October 2013 which was accepted by the Tribunal. 61. Similarly, in considering the complementary protection criterion the Tribunal considered the Applicant's "individual circumstances" as a UNM supporter and his claim the Georgian Dream had released criminals from prisons. I am satisfied that the Tribunal's finding that it was not satisfied the Applicant had a "profile" that placed him at real risk of significant harm encompassed the fact of his membership of the UNM in October 2013. 62. The Tribunal accepted that the Applicant had become a member of the UNM in October 2013. Its consideration of his "individual circumstances" and the fact he was a supporter of the UNM encompassed this factor. While the Tribunal focused on what the Applicant said was the basis for his claimed fear of harm; that is, his past activities with the UNM, the profile he had gained from those activities and his support for the UNM, it also addressed his claims about persecution of UNM members. The Tribunal's reasoning that the Applicant did not have a profile that put him at risk, whether from Georgian Dream supporters or criminals, that the country information, including about arrests of high-profile opposition (that is, UNM) politicians and senior officials of the former government, did not support any claim that there was wide-scale persecution of low level supporters of the UNM, and its consideration of more recent country information sufficiently addressed the fact that the Applicant joined the UNM in October 2013. 63. It has not been established that the Tribunal failed to consider an integer of the Applicant's claims in the manner contended for in the application for review. The ground of review is not made out. The application should be dismissed. 21 It should be accepted that in his statutory declaration dated 9 December 2013, the appellant stated that since he had left Georgia "many members of the National Party have been arrested and others have been threatened with investigation and prosecution", while others have been extorted and sometimes killed. He stated that he feared that these things could happen to him if he returned to Georgia and he added that, if he returned, he would not be able to stay silent and would feel compelled "to continue to fight for political freedom for Georgia and to continue being active with the National Party". It is notable that the appellant did not make an explicit claim that mere membership of the UNM Party was sufficient to expose him to a risk of harm. The emphasis of this part of his statutory declaration is on him being an active supporter of the UNM Party. The AAT's reference at [34] of its reasons to the finding that the appellant "did not hold any positions [within the UNM Party] or was a member of party (sic)" is a reference to its finding that he was not a member of the UNM Party prior to 18 October 2013. The appellant did not suggest that the AAT failed to find that he became a member on 18 October 2013. 22 I reject the appellant's submission that the primary judge erred in finding that the appellant joining the UNM Party in October 2013 was part of the circumstances which were considered by the AAT at [34] of its reasons for decision. No appealable error has been established in respect of the primary judge's reasoning at [57] to [63] that the AAT's reasons at [33] to [34] regarding the appellant's "individual circumstances", when read fairly in light of the decision as a whole, included consideration of the appellant becoming a member of the UNM in October 2013. In particular, no appealable error has been established concerning the primary judge's finding that the appellant did not claim to fear future harm simply because he had joined the UNM Party in October 2013 and divorced from his claimed past activities and support for the UNM Party from 2011. Nor did the country information suggest that membership of the UNM Party per se would provide a basis for protection. 23 In my respectful view, the primary judge was correct to emphasise the need to construe the AAT's reasons for decision fairly and, in particular, with an appropriate recognition of the finding at [29] of those reasons that the appellant had become a member of the UNM Party on 18 October 2013. The balance of the AAT's reasons cannot fairly be read without an acknowledgment of that important earlier finding, as well as by reference to the way in which the appellant presented his claims. 24 The primary judge did not err in concluding that, on a fair reading of the AAT's reasons, it was wrong to suggest that the AAT had not considered the appellant's membership of the UNM Party from 18 October 2013 as part of its consideration of the appellant's individual circumstances. Conclusion 25 For these reasons, the appeal will be dismissed, with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 6 February 2020