Makaridze v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant, Mr Mamuka Makaridze is a citizen of the Republic of Georgia. He arrived in Australia on 1 July 1998 and shortly thereafter applied for a protection (class AZ) visa. His application was refused and he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal affirmed the decision of the delegate of the respondent Minister for Immigration and Multicultural Affairs ("the Minister"), refusing his application for a protection visa. 2 Mr Makaridze now applies to the Court for judicial review under s 476 of the Migration Act 1958 ("the Act"). The grounds of judicial review under the Act of decisions of the Tribunal are limited. The application to the Court nominated various of the statutory grounds but provided no particulars of them. Mr Makaridze was unrepresented in the Court although assisted by a translator. At the commencement of the hearing he read in the Russian language submissions, translated by the interpreter, which had been prepared for him by an adviser. Those submissions were said to be based on s 476(1)(g) which provides (though subject to s 476(4)) that it is a ground of review "that there was no evidence or other materials to justify the making of the decision". 3 The ultimate question for the Tribunal in its review of the Minister's decision refusing a protection visa was whether it was satisfied that Mr Makaridze was a person to whom Australia had protection obligations. Australia has protection obligation to a person who is a refugee within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (herein compendiously referred to as the "Convention"). A person is such a refugee if the person has a well-founded fear of persecution for one or more of the reasons enumerated in the Convention definition, relevantly here, political opinion. 4 It appears that Mr Makaridze and eight other men from the same district in Georgia travelled together from Australia on visas which purported to be issued on the basis that they were supporters of a youth soccer team. All of the nine sought protection visas. All applications were rejected. Six of the nine cases were heard together by the same Tribunal Member. 5 The applicant and, it would seem, at least the men involved in the other five cases heard by the Tribunal Member had prepared a joint submission in which they claimed to be members of a group referred to in the submission as the Akhaltsikhe group supporting the Gamsakhurdia party. Akhaltsikhe is a town in Georgia. Mr Gamsakhurdia was a former president of Georgia, in fact its first president, who was deposed in 1992 by a military council and replaced by Mr Shevarnadze. 6 It is not necessary to set out the submission in full here. It suffices to say that it claimed that the group was formed to popularise and explain its views, which were opposed to the present regime, to residents of Akhaltsikhe and adjoining towns and attract people to the Zviadists, these being supporters of the former president. It may be noted that Mr Gamsakhurdia was ultimately assassinated and it was claimed his followers still suffered brutal persecution. According to the joint submission the group, or members of it, met from time to time to discuss politics, distributed pamphlets and attended some meetings in support of Mr Zviad (Gamsakhurdia) and at which some were arrested. One such meeting was said to have been held on 26 May 1998 which was raided by the police. Following that meeting it was said that many members of the group were arrested including one of the group's leaders who was said to be still in jail. The submission said that almostevery home belonging to group members was searched and that some members had been taken to hospital with severe injuries thereafter. 7 Mr Makaridze's case before the Tribunal was, inter alia, that after the meeting on 26 May 1998 he had run home, discussed events with his family, and then left home to stay with relatives some 20-25 kilometres away. He said he had done so because he had seen the police in the square arresting two people, one of whom is referred to as "Z" and was afraid that the police might come to his house. He had subsequently learned he said that "Z" had signed a document apparently implicating the others. So far as appears from the Tribunal's reasons Mr Makaridze did not suggest that the police had attempted to search his home or made any inquiries about him. 8 Although it did not seem to be part of his case, it appears that Mr Makaridze was liable to be called up but had not been called up for military service although in his evidence he said apparently that the militia had been looking for him and had come to his house. A person who had a tertiary education was entitled to defer military service until this tertiary education was completed. Mr Makaridze had studied economics at a tertiary level and had graduated some time in 1995 or 1996. He was liable thereafter to be called up. 9 Mr Makaridze's case, as summarised by the Tribunal, can be seen from the following passage in the Tribunal's reasons: "The Tribunal asked the applicant why he personally felt at risk, given that he had not been arrested at the square and had not had any encounters with the police ever before. The applicant replied that when he saw people in the square being arrested, he thought that they - the arrested ones - might give police the names of their colleagues. Hence he went to his relatives' house and from there monitored events by phone." 10 It appears from the Tribunal's reasons that the Tribunal Member took evidence not only from Mr Makaridze but also from five of the other men who had signed the joint submission. That was apparently done with the consent and knowledge of Mr Makaridze although, as the Tribunal noted, Mr Makaridze did not have the opportunity to hear what the others said and to refute any parts that might be adverse. The Tribunal noted that it used the testimony of these other witnesses cautiously. In principle this is, potentially, an unfair way of proceeding and is likely to lead to difficulties arising under s 424(A) of the Act if some of that evidence is ultimately adverse to a person not able to know what evidence was given. I shall return to that matter later. 11 Mr Makaridze submitted that there was no evidence before the Tribunal to justify findings which he said were erroneous. He relied upon five matters which, so far as I understand the submission in translation, were as follows: 1. The Tribunal had found that there was no connection between Mr Makaridze's political views and his departure from Russia. It is said that there was no evidence to justify this finding. 2. The Tribunal found that the Government had not shown any adverse interest in Mr Makaridze or his relatives yet there was no evidence to establish this. 3. The Tribunal found that "Z" had not signed a letter implicating Mr Makaridze or others in anti-government activities yet there was no evidence upon which the Tribunal could make that finding. 4. The Tribunal found that Mr Makaridze did not have a well-founded fear of persecution based on various country reports to which it referred. It is said that on behalf of Mr Makaridze information about human rights had been submitted to the Tribunal but that the Tribunal had not taken this information into account. 5. The Tribunal found that Mr Makaridze's evidence could not be relied upon because he had not taken part in any election, he did not know the voting age required in Georgia or historical events in his country of political significance. However, it was submitted that Mr Makaridze had only become interested in politics in 1997, joining the group because he could see that conditions in Georgia had become worse and Georgians were being persecuted. He said he had not been interested in politics before then but, in any event, that this was not important. It was said that there were no facts which showed that he was not truthful and these matters should give way to the 100 per cent truth which he had told. As Mr Makaridze put it in his concluding remarks unfounded suspicions by the Tribunal should not outweigh 100 per cent truth.