Manvelishvili v Minister for Immigration & Multicultural Affairs [2001] FCA 642

FEDERAL COURT OF AUSTRALIA

Manvelishvili v Minister for Immigration & Multicultural Affairs [2001] FCA 642 ZURAB MANVELISHVILI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1454 OF 2000 WILCOX, LINDGREN AND MARSHALL JJ 31 MAY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1454 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ZURAB MANVELISHVILI

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 1454 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ZURAB MANVELISHVILI

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 Stone 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 Act 1958 (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 for reason of political opinion if he were returned to Georgia. 8 The appellant arrived in 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 Gogsadze v Minister for Immigration & Multicultural Affairs (N 3 of 2001) and Merabishvili v Minister for Immigration & Multicultural Affairs (N 8 of 2001). 9 The appellant lodged the application for a protection visa on 13 August 1998. A delegate of the Minister ("the Delegate") refused the application on 10 November 1998. On 7 December 1998 the appellant applied to the RRT for review of that decision. The RRT affirmed the Delegate's decision in a decision dated 10 August 2000 handed down on 6 September 2000. The appellant lodged an application for review in this Court on 4 October 2000. Stone J dismissed the application on 7 December 2000. The appellant's notice of appeal was filed on 22 December 2000. 10 The appellant was a self-employed single man of 26 from the town of Vale, close to the Georgian-Turkish border. He claimed before the RRT to be an active member of the Akhaltsikhe Gamsakhurdia Supporters' Group (a political group opposed to the current Georgian government) and to have participated in demonstrations and rallies in Georgia, as a member of the group, including two peaceful demonstrations in 1997. He claimed to have been beaten by police during a rally on 3 January 1998 and to have been beaten and arrested during his participation in a rally on 26 May 1998. He claimed to have been beaten and ill treated while imprisoned in Tbilisi and to have signed under duress a confession that he and 15 others were terrorists, but to have been then released unconditionally. He claimed to have been in hiding with his aunt after being released until he came to Australia. He said that it was while he was in hiding that the visas in question were obtained. He claimed to fear that on return to Georgia he would be beaten, tortured and killed by the police. 11 The RRT did not accept most of the appellant's claims and did not find the appellant to be a consistent or credible witness. The RRT thought that his claims were exaggerated and that he demonstrated a very low level of political knowledge and involvement in political activity. While it accepted that the appellant had been detained once and received blows from random police violence as a result of participating in political rallies, it found that this was not of sufficient seriousness to amount to persecution. Importantly, the RRT stated that there was no evidence that the appellant had been beaten or arrested for reason of political opinion, as opposed to the reason of being present at an unauthorised demonstration. The RRT did not accept the appellant's claim that he had signed a confession implicating the group in terrorism. The RRT stated that the authorities had not pursued him since and that it was satisfied that the chance of the appellant's being arrested in the future for reason of political opinion was remote. 12 Stone J dismissed the application for review of the RRT's decision, finding none of the permitted grounds of review established. Her Honour stated that in substance the submissions of the appellant (written submissions had been prepared by the appellant's migration agent which the appellant, who was not represented before his Honour, adopted as his own) sought a review of the RRT's decision on the merits, attacked fact and credibility findings made by the RRT and challenged the weight that the RRT attached to competing evidence. 13 According to the notice of appeal filed 22 December 2000, the grounds 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; · those relied on by the present appellant and those other two appellants referred to in their applications at first instance to the Court for review of the respective RRT decisions.