Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

1 The appellant appeals from orders made by a Federal Magistrate on 16 April 2003 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 2 July 2002. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the appellant a protection visa. The respondent, a Georgian national, had claimed to have a well-founded fear of persecution in that country on the grounds of his religion as a member or associate of the Jehovah’s Witness church.

NAOV v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

NAOV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 13 (30 January 2004)
Last Updated: 24 August 2004

FEDERAL COURT OF AUSTRALIA


NAOV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 13


CORRIGENDUM




















NAOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 500 of 2003


RYAN, HEEREY & ALLSOP JJ
30 JANUARY 2004 (Corrigendum 10 February 2004)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 500 of 2003


ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE


BETWEEN: NAOV
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, HEEREY & ALLSOP JJ
DATE OF ORDER: 30 JANUARY 2004 (Corrigendum 10 February 2004)
WHERE MADE: SYDNEY





CORRIGENDUM



1. The statement "On Appeal from a Judge of the Federal Court of Australia" appearing on the Orders page be replaced with the statement "On Appeal from a Decision of a Federal Magistrate".


2. The statement "On Appeal from a Judge of the Federal Court of Australia" appearing on page 1 of the reasons for judgment be replaced with the statement "On Appeal from a Decision of a Federal Magistrate".







I certify that the preceding two (2) paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Court.



Associate:
Dated: 10 February 2004


FEDERAL COURT OF AUSTRALIA


NAOV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 13





















NAOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 500 of 2003


RYAN, HEEREY & ALLSOP JJ
30 JANUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 500 of 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAOV
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, HEEREY & ALLSOP JJ
DATE OF ORDER: 30 JANUARY 2004
WHERE MADE: SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, to be taxed in default of agreement.














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 500 of 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAOV
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, HEEREY & ALLSOP JJ
DATE: 30 JANUARY 2004
PLACE: SYDNEY




REASONS FOR JUDGMENT

THE COURT

1 The appellant appeals from orders made by a Federal Magistrate on 16 April 2003 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 2 July 2002. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the appellant a protection visa. The respondent, a Georgian national, had claimed to have a well-founded fear of persecution in that country on the grounds of his religion as a member or associate of the Jehovah’s Witness church.

2 The appellant was not legally represented before us or before the Federal Magistrate. Essentially, he complained of lack of procedural fairness by the Tribunal in relation to, first, inadequate translation and, secondly, the way in which the Tribunal obtained information about his involvement with the Jehovah’s Witness church in Georgia.

3 The appellant arrived in Australia on 13 November 1998 and lodged an application for a protection visa on 12 February 1999. He claimed that as a Jehovah’s Witness he was ruthlessly treated by the Georgian religious authorities. When he asked the police for protection they did nothing. When asked by the Tribunal to provide further detail about his claim he said that in May 1998 he started attending Jehovah’s Witness meetings and became an active member of the church in August of that year. He gave details of five occasions in and between September and November 1998 when he was attacked and beaten by a gang of people who demanded that he cease his religious practice. The police refused to assist him.

Tribunal hearing

4 The appellant attended a hearing on 30 January 2002. There were difficulties with the interpreter, who was a Georgian speaking person of Turkish background. The appellant was offered the use of a Russian interpreter but declined, despite indicating in his initial application that he spoke, read and wrote Russian.

5 A second hearing was held on 26 April 2002. The appellant attended and gave evidence with the assistance of a Georgian/English interpreter. Difficulties were encountered but the hearing proceeded to completion. In the course of the hearing before the Tribunal the appellant said that he knew two friends who were Jehovah’s Witnesses. These were Mrs Nino Macharashvili and Mr Mamuka Chabashvili. He also said that he had assisted in the obtaining of registration of the Jehovah’s Witness church in Georgia by two judges, Dali Sulhanishvili and Vepahia Lomidze. The Tribunal said:

"What I would like to do is I only need to contact with my Tribunal is in contact with a very senior person in Jehovah’s Witnesses in ... I don’t think he is actually in Georgia but in a close by and who is in touch with the organisation."

The appellant said:

"We have a contact with a Jehovah’s Witness in Georgia and somewhere else there."

The Tribunal said:

"Given what you have told me that you played an important part in getting them registered in 1998 that would seem to me that they would know who you were."

6 The appellant then gave the names of the friends mentioned above and of the two judges.

7 The Tribunal said:

"Ok. It’s like that. If I can’t get in touch with them and back comes the message that says Yes, we know him. He was associated with us. We know he was attacked because of his involvement in Jehovah’s Witnesses. If they tell me that you are refugee so I will make the enquiries and if it takes some time because in order to expect this to happen in a week, but if they come back and tell me that then I will write an easy decision which will say that you are the refugee, but if they come back and say we have never heard of him I will come back to you and say. Look I have made these enquiries. They have never heard of you. They don’t know anything about you, your story that ...You know that what you have said is wrong and I will say. What do you say to that and you might come back again. So that’s what I will do. OK?"

8 On 29 April 2002 the Tribunal wrote to the Administrative Centre of the Jehovah’s Witnesses in Russia at an address in St Petersburg. The letter stated:

"Dear Mr Kalin,

Thank you for your assistance in regard to my recent enquiries. I will be forwarding you further information regarding those cases in coming weeks and hope you may be able to provide further assistance at that time. We were also hoping that you may be able to assist the Tribunal in relation to another Applicant, who also claims to be a Jehovah’s Witness from Georgia.

The Applicant’s name is Mr [NAOV] (date of birth [deleted]). The Applicant first attended meetings in May 1998 with his friend, Ms Nino MACHARASHVILI, who was already a baptised member. The group with which the Applicant became involved used to meet at a corner shop in the suburb of "Isani" and was led by a man called Mamuka CHABASHVILI. He said that Chabashvili had no formal title within the congregation.

The Applicant, Mr [NAOV], claims that he was personally instrumental in assisting the Jehovah’s Witnesses to become officially registered in Georgia, using his contacts to ensure that the registration could be done without the need to pay bribes. He said the judges involved were named Dali SULHANISHVILI and Vepahia LOMIDZE, and that the registration was effected in the Isani District Court.

The Applicant, Mr [NAOV], said that he was physically attacked by groups of people in the Isani area near his home and work on five occasions, two in September 1998, two in October 1998, and the last on 1 November 1998. On the fourth occasion they tried to abduct him, and succeeded in doing so on 1 November. He was taken early in the morning by car to a lake called the Tbilisi Sea, where he was beaten and threatened and finally dumped in the water. The Applicant claims that he reported the incident to the police, but nothing was done, and he left for Australia on a business trip soon after, whereupon he applied for a temporary protection visa.

The Tribunal has a number of questions in regard to this Applicant:

Questions

1. Can you confirm the existence of a Jehovah’s Witness congregation in Isani as described by the Applicant?
2. If so, is Mr Chabashvili the leader and is Ms Macharashvili a well-known member?
3. If so, is Mr [NAOV] known to Ms Macharashvili and Mr Chabashvili?
4. Can Ms Macharashvili and Mr Chabashvili confirm:
(a) whether Mr [NAOV] was sincerely involved with the Jehovah’s Witness organisation

(b) whether Mr [NAOV] was physically attacked as he claims


(c) whether Mr [NAOV] assisted in Jehovah’s Witness being officially registered in Georgia
Please be aware that any information you provide the Tribunal may form part of the information used by the Tribunal to review applications for refugee status. The information may be cited by the Tribunal in a finalised decision. The information or your organisation’s identity may be disclosed to applicants, their advisers, the Department of Immigration, Multicultural and indigenous Affairs (Australia), or otherwise become publicly available.

Thank you once again for your assistance, I look forward to hearing from you shortly.

Yours sincerely,

Sgn

Allison Henry
Senior Researcher
Country Research
Refugee Review Tribunal (Australia)"
(emphasis in original)

9 On 8 May 2002 the Tribunal wrote to the appellant advising that there was no need at that stage to comment further on the problems of translations at the recent hearing. The Tribunal accepted that there had been problems and would take that into account. The letter continued:

"As you know the Tribunal is making enquiries about your situation with contacts in the Jehovah’s Witness hierarchy in Eastern Europe. If they support what you have said, there will be no need for you to go to the trouble and expense of obtaining a transcript of the hearing. If they do not support your claims the Tribunal will contact you again."

10 Mr Kalin replied by fax letter dated 8 May 2002. The letter concerned another case as well as that of the present appellant. In relation to the latter Mr Kalin stated:

"To best of our knowledge, this person never was one of Jehovah’s Witnesses in Georgia. While he obviously lived in the Isani District of Tbilisi and may even have attended a meeting of the local congregation of Jehovah’s Witnesses there, he never became a member of the congregation nor was known as an interested person. Since there are many Jehovah’s Witnesses living in the Isani District of Tbilisi Mr. [NAOV] may have known some of them personally. He was not involved in the registration process of our organization. Furthermore, we received no reports of attacks on individual Jehovah’s Witnesses or congregations in the year 1998. Aside from isolated cases, these attacks began in October 1999."

11 The letter went on to state generally.

"You may want to note that much detailed information regarding the attacks against Jehovah’s Witnesses in Georgia during the last couple of years has been posted on our web site www.jw-georgia.org where it is open to public. Therefore, in order to provide you with verified information whether these Applicants really were related to Jehovah’s Witnesses in Georgia we would just need their names and the name of the congregation that they belonged to. Since we keep good records of all active congregation members, with having that information it would not be difficult to confirm whether an individual really has been a member of a particular congregation.

We hope this information is helpful. If there is anything more we could do for you please do not hesitate to contact us."

12 On 9 May 2002 the Tribunal wrote to the appellant advising that it had since received a response to the enquiries mentioned in its letter of the previous day. The letter was as follows:

"RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS)

Further to my letter dated 8 May 2002, the Tribunal has now received a response to the inquiries mentioned in that letter and foreshadowed by the Member at the hearing held on 26 April 2002. Information contained in that response could form part of the reasons for affirming the decision under review.

Following the hearing, an officer of the Tribunal contacted a senior official of the Jehovah’s Witnesses in Russia, who was in contact with Jehovah’s Witnesses in Georgia. The Tribunal referred to you by name and to your claims that you were involved in a group of Jehovah’s Witnesses in Isani, that you were physically attacked in September, October and November 1998, and that you had been involved in the registration of the religion in Georgia. The Tribunal asked a number of questions in an attempt to confirm your claims. The Chairman of the Presiding Committee at the Administrative Centre of Jehovah’s Witnesses in Russia wrote to the Tribunal on 8 May 2002 (by facsimile) in response to the Tribunal’s inquiry and inquiries relating to other, unrelated cases. The portion of the reply, which relates specifically to you is as follows:

To best of our knowledge, this person never was one of Jehovah’s Witnesses in Georgia. While he obviously lived in the Isani District of Tbilisi and may even have attended a meeting of the local congregation of Jehovah’s Witnesses there, he never became a member of the congregation nor was known as an interested person. Since there are many Jehovah’s Witnesses living in the Isani District of Tbilisi Mr. [NAOV] may have known some of them personally. Furthermore we received no reports of attacks on individual Jehovah’s Witnesses or congregations in the year 1988. Aside from isolated cases, these attacks began in October 1999.

The reply went on to state, in a more general sense:

You may want to note that much detailed information regarding the attacks against Jehovah’s Witnesses in Georgia during the last couple of years has been posted on our web site www.jw-georgia.org where it is open to public. Therefore, in order to provide you with verified information whether these Applicants really were related to Jehovah’s Witnesses in Georgia we would just, need their names and the name of the congregation that they belonged to. Since we keep good records of all active congregation members, with having that information it would not be difficult to confirm whether an individual really has been a member of a particular congregation.

This information is significant because, if the Tribunal were to accept it, it could lead the Tribunal to conclude that your claims about your alleged involvement with the Jehovah’s Witnesses in Georgia were false. In particular, it could conclude that you were not physically attacked in 1998.

You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by no later than 3 June 2002.

You mentioned in your last letter that there were a number of interpreting errors in the hearing on 26 April 2002. The Tribunal accepts this, and as previously stated, will take this into account. It is a matter for you to decide if you wish to have an independent interpreter report on the tape recordings. However, the Member considering your case has indicated that he sees the above information, suggesting you were not involved with Jehovah’s Witnesses in Georgia, as so significant that he does not envisage that any errors in interpretation at the hearing would be material to the outcome of your application for review. Nevertheless, he will consider any further submissions you might care to make on this point."

13 The appellant replied in an undated letter received by the Tribunal on 3 June 2002. The letter included the following:

"After studying your letter I realised that due to incorrect interpretation you, first of all, did not consider my claims as true and correct, particularly the reasons which forced me to apply for an asylum here in Australia, and from the other hand, you did not address the questions related to me as a Jehovah’s Witness correctly, and as a result made inquiries, which led to further misunderstanding and misinterpretation of my claims.

I will do my best to clarify the issues. I, as a Jehovah’s Witness was not registered as such in the Republic of Georgia, where as in any other part of the world, people are handed out some sort of I.D. card. That’s why it is quite explainable, why they were unable to track me down using their data base. I hoped that two people that I mentioned during the hearing (Nino Macharashvili and Mamuka Chabashvili), who would be able to confirm my little involvement, with Jehovah’s Witnesses (which, after all led to my fear of persecution), little but still an attempt to bring knowledge regarding Jehovah’s kingdom, and coming Judgement Day. It is very fortunate, that the mentioned Nino Macharashvili, by her own motives, related to our relationship, distorted the truth related to my religious convictions, e.g. that I am truthful and honest believer. In the same manner the above mentioned Mamuka also distorted the truth by ignoring the fact that it was me who helped him register the Jehovah’s Witnesses. Mamuka, as a believer, was not entitled to seek any help from a person, who, at that time had nothing to do with the J.W. and who, spent not a ‘bribe’ but some amount of his own money (as I have already stated, at that time I was not involved in J.W.). I believe that he did it following "advice" given by Nini Macharashvili."

Tribunal’s decision

14 In its findings and reasons the Tribunal stated that the appellant’s claims to have been a Jehovah’s Witness in Georgia and to have suffered persecution because of adherence to that religion were completely unsubstantiated. The Tribunal said that it had sought confirmation of his claim from a senior official of the Jehovah’s Witness in Eastern Europe and that official response was conveyed to the appellant. The response indicated the appellant was not known to the local congregation of Jehovah’s Witnesses with which he claimed an association, that he was not personally involved in the registration of the religion in Georgia and that the claimed instances of persecution were well before the time the Jehovah’s Witnesses started receiving reports of such attacks.

15 As to interpretation, the Tribunal

"...accept(ed) that the interpretation was not as good as it would have wished. For this reason the Tribunal took particular care to rephrase questions where necessary. The applicant also has a degree of understanding of English and the Tribunal is satisfied that there was no material issue on which translation problems may have impacted."

16 The Tribunal stated it was satisfied that the appellant understood at the hearing that it intended to make enquiries about him overseas and that the names and details he had put to the Tribunal would be important. He made no attempt to suggest that the two people he had named would have any reason not to support what he said. Against that background and that of his written description of such people as being "full of love and dedication" the Tribunal did not accept his claim that both people had acted with malice towards him and that was the explanation of the response the Tribunal received from overseas. The Tribunal accepted the evidence of the Chairman of the Presiding Committee at the Administrative Centre of Jehovah’s Witnesses in Russia. The Tribunal accepted that the appellant said that his name was never actually registered as a member of the Jehovah’s Witnesses. However given the appellant’s evidence about his alleged involvement with the Isani Congregation the Tribunal found it inconceivable that he would not be remembered by name if that evidence were correct.

17 The Tribunal found the appellant had no association with Jehovah’s Witnesses in Georgia at a level which would render him at risk of attack if he were to return to that country now or in the foreseeable future. The Tribunal was not satisfied that he had been physically attacked in October and November 1998 but even if he had been it had not been due to his association with Jehovah’s Witnesses.

Federal Magistrate’s decision

18 The Magistrate found that the claimed departures from a requisite standard of interpretation were not critical to the presentation of the appellant’s case and did not influence the Tribunal in its reasoning and findings that it made. The Tribunal pointed out that there was no expert evidence of the alleged inadequacy of interpretation. The Magistrate said (at [50]):

50. "The tapes reveal that the Tribunal reiterated, repeated and rephrased questions in an effort to ensure that they were understood. The applicant’s answers, as rendered in English by the interpreter, are responsive. At times he appears to interrupt the translation of lengthy passages by the interpreter but any consequential confusion cannot be attributed to a lack of procedural fairness ...

51. There were problems of interpretation acknowledged by the Tribunal but it has not been shown on the balance of probabilities that the interpretation provided was incompetent in significant respects."

19 As to the enquiries in Russia, the Magistrate thought that the appellant’s responses at the hearing satisfied the Magistrate that the appellant understood that further enquiries were to be made. Whether or not the appellant understood the precise detail of the Member’s explanation to make overseas enquiries (and indeed the Tribunal did not expressly state that it intended to make enquiries in Russia) the Tribunal was at liberty to obtain relevant information in any way in which it saw fit and it was then required to have regard to that information.

Notice of appeal

20 The appellant’s notice of appeal contains the following grounds:

"1. Natural justice – the Court had failed to consider the relevant matters and had considered the irrelevant matters.

2. Procedural fairness – my right on translator use violated.

3. There was a failure to act in good faith by the Member of the federal court."

Conclusion

21 On the issue of interpretation, the Federal Magistrate’s finding as to the alleged inadequacy, turning as it did on an examination of the tapes and transcript, was a finding of fact. No grounds have been made out which would warrant us overturning that finding.

22 As to the enquiries the Tribunal made, it is true that the reply of the Administrative Centre of the Jehovah’s Witnesses in Russia was not responsive in terms to the four questions asked in the Tribunal’s fax of 29 April 2002. Nevertheless, the response of the Centre, which was conveyed to the appellant for his comment, asserted relevant facts. The weight to be given to those facts was a matter for the Tribunal. The appellant availed himself of the opportunity to comment on this response by alleging bias and animus against a person who he assumed had been an informant of the Russian Administration Centre. Whether or not the Russian authority in fact enquired of that person is not known. The Tribunal may have thought it a little surprising that the appellant volunteered for the first time this possible bias on the part of Ms Macharashvili when presumably he would have known of such matters at the time that he volunteered her name at the Tribunal hearing. Nevertheless, procedural fairness does not mean that the appellant was able to dictate the terms in which the Tribunal might seek information about his claims. The Tribunal sought information from a relevant source, advised the appellant of that search and sought his comments. Procedural fairness did not require anything further.

Order

23 The appeal will be dismissed with costs.


I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.



Associate:


Dated: 30 January 2004



The Appellant appeared in person.



Counsel for the Respondent: Mr J Smith



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 28 November 2003



Date of Judgment: 30 January 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia