Merabishvili v Minister for Immigration & Multicultural Affairs [2000] FCA 1879 (21 December 2000)

Last Updated: 21 December 2000

FEDERAL COURT OF AUSTRALIA

Merabishvili v Minister for Immigration & Multicultural Affairs [2000]

FCA 1879

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

Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 referred to

Manvelishvili v Minister for Immigration & Multicultural Affairs [2000] FCA 1780 referred to

Maisuradze v Minister for Immigration & Multicultural Affairs (unreported, Whitlam J, 6 December 2000) referred to

GIA MERABISHVILI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1058 OF 2000

HELY J

21 DECEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1058 OF 2000

BETWEEN:	GIA MERABISHVILI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with 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 1058 OF 2000

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

JUDGE:	HELY J
DATE:	21 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Georgia who arrived in Australia on 1 July 1998. He was one of nine men from the same district in Georgia who travelled together to Australia on visas obtained by one member of the group, ostensibly on the basis that the group members were supporters of a youth soccer team due to play competitively in Australia.

2 About six weeks after arriving in Australia, all nine men submitted applications for protection visas on the ground that they had a well-founded fear of persecution for reasons of their political opinion. The applicant's claim was founded on his contention that he belongs to a political group in Georgia known as the Akhaltsikhe Gamsakhurdia Supporters' Group ("AGSG"). The applicant claims that members of AGSG are at risk in Georgia because one of the members was forced to sign a confession implicating all the group members in terrorist activities directed against President Shevarnadze. The applicant claimed that four or five of the fellow members of AGSG were arrested on or after 26 May 1998 and are still in prison in Georgia.

3 On 14 August 2000 the Refugee Review Tribunal ("RRT") affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. RRT, constituted by the same Member, dealt with six of the nine cases, each of the six applicants agreeing to the adoption of that procedure.

4 In the present matter, RRT made the following findings:

(a) the applicant is a member of a small political discussion group which calls itself AGSG;

(b) members of AGSG would not be recognised by the authorities as part of an organised political activity;

(c) the applicant attended two public meetings organised by AGSG on 3 January and 26 May 1998. Each meeting was forcibly broken up by the police, but no arrests were made, nor were any names taken;

(d) the applicant sustained some random blows delivered by the police as they broke up the first meeting, but the harm which was sustained by the applicant on this one occasion did not constitute persecution;

(e) there were a number of arrests made by the police at the second meeting, but the applicant was not detained, nor was any interest displayed in him, nor any other members of the group to that point;

(f) the applicant has never come to the adverse attention of the authorities, not even at the public rallies which he attended nor as a consequence of the last one;

(g) the Tribunal was not satisfied that there is a connection between the applicant's political views and his departure from Georgia. It did not accept that he felt he had to leave Georgia because of ramifications of the demonstration in May 1998. Independently of the demonstration, the applicant heard of an opportunity to buy a visa to Australia and took that opportunity;

(h) the Tribunal is satisfied that the authorities in Georgia have no adverse interest in the applicant for reason of his political views;

(i) the applicant's claim that one of the members of AGSG was forced to sign a confession implicating all the group members in terrorist activities is not made out. The applicant's claim that four or five fellow members of AGSG were arrested on or after 26 May 1998 and are still in prison in Georgia was rejected;

(j) even if the applicant was known to the authorities as a member of a small unregistered political group, the chance that harm, let alone harm amounting to persecution, would befall the applicant for a Convention reason in the reasonably foreseeable future is remote.

5 The application for an order of review states that the grounds of the application are failure to follow prescribed procedures, an error of law and the absence of evidence or other material to justify the making of the decision. No particulars were given of any of those grounds. The applicant lodged a written submission which asserted that the decision involved an error of law because the Member had no evidence or other material to justify the making of the decision (s 476(1)(g)). Findings, particularly those referred to in pars (g), (h) and (i) above, were said to have been made without any "apparent reason", "conspicuous reason" or "evident reason".

6 The applicant appeared before me without the benefit of any legal assistance, but with the aid of an interpreter. His oral submissions amounted to an assertion that all of the members of the group who gave evidence did so in a manner which was consistent - there was no discrepancy or controversy in the evidence which was given - and RRT had no good reason for not accepting that evidence.

7 Limitations on this Court's power to review decisions of the RRT are well known, and there is no utility in repeating them. In a case such as the present, the ground specified in s 476(1)(g) is not to be taken to have been made out unless RRT made its decision on the basis of the existence of a particular fact, and that fact did not exist: s 476(4)(b). The requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in Court: Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, 224. There was no such evidence in the present case. As the only ground of review invoked by the applicant's written and oral submissions was the ground specified in s 476(1)(g), then the application for review of RRT's decision fails.

8 It is for the applicant to bring material and evidence before RRT to satisfy it of the applicant's entitlement to a protection visa. RRT does not carry any onus of disproving claims made by the applicant, and it is not necessary that there should be positive proof of the falsity of a claim before RRT can conclude that it is not satisfied that the claim is made out. In the applicant's written submissions it is said:

"It is perfectly clear that the Tribunal is simply unable to know whether Georgian authorities are or are not interested in me."

That exposes a misunderstanding as to the nature of RRT's function. The balance of the written submission impermissibly invites a merits review of factual findings, the making of which is within the exclusive province of RRT.

9 Many of the findings of RRT which I summarised earlier, are appropriately characterised as findings of the non-existence of facts. In N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993, Katz J concluded that s 476(1)(g) of the Act does not apply to findings of the non-existence of facts. That may provide a further ground on which the application for review ought to fail. As the application fails for other reasons, it is not necessary for me to express a concluded view on this question, and having regard to the decision of Carr J in Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350, it would be undesirable for me to do so.

10 There are a number of cases which have been decided or which are pending in the Court in which members of AGSG seek to challenge the decision of RRT. I was informed by counsel for the Minister that three cases have been heard, namely Manvelishvili v Minister for Immigration & Multicultural Affairs [2000] FCA 1780 (Stone J), Maisuradze v Minister for Immigration & Multicultural Affairs decided by Whitlam J on 6 December 2000 and Gogoladze v Minister for Immigration & Multicultural Affairs heard by Moore J on 15 December 2000. As the applicant is unrepresented, I thought it desirable to endeavour to look at the decisions in these cases in case there was something in them which was germane to the present case. The decision in Gogoladze has been reserved; the application in Maisuradze was dismissed, but the reasons for decision are not currently available; the application in Manvelishvili was also dismissed, but there is nothing in Stone J's reasons for decision in that case which could provide any assistance to the applicant in the present case.

11 The application is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 21 December 2000

	The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 December 2000
Date of Judgment:	21 December 2000