Gogsadze v Minister for Immigration & Multicultural Affairs [2001] FCA 643

FEDERAL COURT OF AUSTRALIA

Gogsadze v Minister for Immigration & Multicultural Affairs [2001] FCA 643

MAYA GOGSADZE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 3 0F 2001 WILCOX, LINDGREN AND MARSHALL JJ 31 MAY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 3 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MAYA GOGSADZE

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 3 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MAYA GOGSADZE

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 Whitlam 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 she was before the primary Judge. 7 The appellant is a citizen of Georgia. She claimed to fear persecution on return to Georgia for reason of political opinion. 8 The appellant arrived in Australia on 1 July 1998 with her de facto husband, Merab Maisuradze. They were two 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 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 Merabishvili v Minister for Immigration & Multicultural Affairs (N 8 of 2001). 9 Mr Maisuradze lodged an application for a protection visa on 29 March 1999. His application included the appellant. On 29 April 1999 a delegate of the Minister ("the Delegate") refused the application. On 26 May 1999 Mr Maisuradze and the appellant applied to the RRT for review of that decision. By a decision dated 25 August 2000 and handed down on 13 September 2000, the RRT affirmed the Delegate's decision. On 29 September 2000 Mr Maisuradze and the appellant lodged their application to this Court for review of the RRT's decision. Whitlam J dismissed that application on 6 December 2000. The appellant's notice of appeal was filed on 2 January 2001. 10 In December 2000, after the decision at first instance, Mr Maisuradze returned to Georgia. He did not appeal and the refusal of his application stands. We pass over the question whether this would, in any event, pose problems for the appellant. 11 Mr Maisuradze had claimed to be a well-known television presenter, who had been shot in the head by armed supporters of the former President of Georgia, Zviad Gamsakhurdia, when they broke into the television station and fighting broke out. He became disgruntled with the new government and the incumbent President, Edward Shevardnadze, and he started to criticise them. He was dismissed from his job and his apartment was searched by the national security service. He and the appellant then fled to Armenia where he wrote political articles. Upon their return to Georgia, Mr Maisuradze was summoned to the police station and was placed under surveillance, although not mistreated. The police searched his home and claimed to find narcotics. Mr Maisuradze claimed to fear that a false criminal charge was being made against him for reason of his political opinion and so he and the appellant decided to leave Georgia. 12 It was the alleged complicity of the appellant in the actions of her de facto husband that was said to place her in danger. 13 The RRT did not accept the claims of the appellant or of Mr Maisuradze. It found that they were not wanted by the authorities when they left Georgia and that they did not believe the authorities wanted them. The RRT found that the ease of their departure under their own identities through regular channels in June 1998 was in stark contrast to their claims. This led the RRT to conclude that it could not rely on their evidence to the effect that they had done anything prior to June 1998 such as would bring upon themselves the risk of arrest or of other forms of repression at the hands of the Shevardnadze government or its agents. While the RRT was prepared to accept that the Mr Maisuradze had been shot in the head by a Zviadist zealot in the course of a struggle at the television station, this did not affect its conclusion that there was nothing in the recent past or foreseeable future to establish that he or the appellant faced a real chance of Convention-related persecution in Georgia. 14 On 6 December 2000, Whitlam J refused an application for an adjournment of the hearing. The appellant appeared in Court, but Mr Maisuradze did not, claiming to be suffering from epilepsy. His Honour was not satisfied in that respect and the hearing proceeded with the appellant putting the case on behalf of both applicants. No complaint has been made on the appeal in respect of the refusal of the adjournment. 15 Whitlam J found that the RRT's findings of fact were open to the RRT on the material before it. His Honour held that no reviewable error had been made out and that in fact the applicants wished to agitate the merits of the decision. 16 The grounds of appeal, as set out in the notice of appeal filed on 2 January 2001, 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 Mr Maisuradze) and those other two appellants referred to in their applications at first instance to the Court for review of the respective RRT decisions.