Merabishvili v Minister for Immigration and Multicultural Affairs

[2001] FCA 640

FEDERAL COURT OF AUSTRALIA

Merabishvili v Minister for Immigration & Multicultural Affairs [2001] FCA 640

GIA MERABISHVILI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 8 of 2001

WILCOX, LINDGREN AND MARSHALL JJ
31 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8  OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GIA MERABISHVILI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	WILCOX, LINDGREN AND MARSHALL JJ
DATE OF ORDER:	31 MAY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant 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 8 OF 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GIA MERABISHVILI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	WILCOX, LINDGREN AND MARSHALL JJ
DATE:	31 MAY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX, LINDGREN AND MARSHALL JJ:

Background

1. This is an appeal from a decision of Hely J dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”), affirming a decision of the respondent (“the Minister”) refusing to grant the appellant a protection visa.

2. Section 29 of the Migration Act1958 (Cth) (“the Act”) provides that subject to the Act the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it 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”).  Australia is a party to 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. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

5. The RRT’s decision was a “judicially-reviewable decision” (par 475(1)(b) of the Act); the appellant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

6. The appellant was unrepresented before us, as he was before the primary Judge.

7. The appellant is a citizen of Georgia.  He claimed to fear persecution on return to Georgia for reason of political opinion.

8. The appellant came to Australia on 1 July 1998.  He was one of a group of Georgians who came to Australia together, on visas obtained by one of the group, on the false pretence of being supporters of a youth soccer team due to play competitively in Australia.  We have heard today appeals by a further two of the group; cf Manvelishvili v Minister for Immigration & Multicultural Affairs (N 1454 of 2000) and Gogsadze v Minister for Immigration & Multicultural Affairs (N 3 of 2001). 

9. The appellant lodged the application for a protection visa on 13 August 1998.  A delegate of the Minister (“the Delegate”) refused that application on 10 November 1998.  On 7 December 1998, the appellant lodged his application to the RRT for review of the Delegate’s decision. On 14 August 2000 the RRT affirmed the Delegate’s decision.  On 4 October 2000 the appellant lodged his application to this Court for review of the RRT’s decision.  Hely J dismissed that application on 21 December 2000.  The appellant filed his notice of appeal on 4 January 2001.

10. The appellant claims to be a member of a political group in Georgia known as Akhaltsikhe Gamsakhurdia Supporters’ Group.  The appellant claims that members of the group are at risk in Georgia because one of the members (Mr Manvelishvili) was forced to sign a confession implicating the group in terrorist activities against President Shevarnadze.

11. The RRT did not accept the appellant’s claims.  It found that the appellant had never come to the adverse attention of the authorities in Georgia and that they had no interest in the appellant for reason of his political views, even if he was a member of the political group mentioned and had attended three demonstrations and gone to small discussion groups as he claimed. The RRT noted that in Manvelishvili’s case (before the RRT, proceeding N98/26004, and later before this Court at first instance N 1056 of 2000 and on appeal today N 1454 of 2000) it had not accepted that a confession of terrorism had been signed, but said that even if it was, it was still satisfied that the chance of harm befalling the appellant was remote.  The RRT concluded that there was no connection between the appellant’s political views and his departure from Georgia – the appellant had simply taken the opportunity to come to Australia.  The RRT was satisfied that the chance of harm, let alone harm amounting to persecution, befalling the appellant for a Convention reason was remote and that, therefore, the appellant did not have a well-founded fear of persecution for a Convention reason.

12. Hely J dismissed the application for review on the basis that no reviewable error had been shown.  His Honour remarked that in substance the appellant was seeking a review of the decision on its merits.

13. The grounds of appeal, as set out in the notice of appeal, are as follows (we have corrected solecisms):

    “Procedures that were required by the Act to be observed in connection with the making of the Decision were not observed (s 476(1)(a)).

    The Decision involved an error of law, being an error involving the 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)).

    There was no evidence or other material to justify the making of the Decision.”

    The notice of appeal gives no particulars of these grounds which we note are identical to:

    ·    those relied on by the appellants in the other two appeals mentioned earlier; and

    ·    those relied on by the appellant and the other two appellants referred to in their applications at first instance for review of the respective RRT decisions.

    Disposition of appeal

14. At the hearing of the appeal, the appellant stated, in substance, only that he disagreed with the RRT’s decision.  We had made clear to him the limited grounds of review allowed to the Court in matters such as these, but he put no submission in support of any of those grounds.  Nor was anything put by either of the other two appellants mentioned earlier which would assist him in that regard.

15. We agree with the primary Judge that none of the permitted grounds of review were or are made out and that in substance what the appellant was and is seeking is a review of the RRT’s decision on the merits and a reversal of its findings of fact.

    Conclusion

16. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Lindgren and Marshall.

Associate:

Dated:             31 May 2001

The Appellant appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	31 May 2001
Date of Judgment:	31 May 2001