Dranichnikov v Minister for Immigration and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Callinan JJ,Kirby J,Hayne J
• Judgment Date: 08 May 2003
• Neutral Citation: 2003-0508 HCA A,[2003] HCA 26
• Docket Number: B96/2000
• Court: High Court
• Date: 08 May 2003

[2003] HCA 26

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ

B96/2000

B44/2001

Sergey Dranichnikov

Applicant

and

Minister for Immigration and Multicultural Affairs

Respondent

Re Minister for Immigration and Multicultural Affairs & ORS

Respondents

and

Ex Parte Sergey Dranichnikov

Applicant/Prosecutor

Representation:

S Dranichnikov appeared in person

J A Logan SC with R M Derrington for the respondent (instructed by Australian Government Solicitor)

Dranichnikov v Minister for Immigration and Multicultural Affairs

Re Minister for Immigration and Multicultural Affairs; Ex parte Dranichnikov

Immigration — Refugees — Protection visa — Fear of persecution for reason of membership of particular social group — Whether Refugee Review Tribunal considered applicant was member of broader class of social group than that claimed — Whether Tribunal misunderstood and failed to address applicant's case — Whether constructive failure by Tribunal to exercise jurisdiction — Whether failure to accord natural justice.

Practice and procedure — High Court — Concurrent applications for special leave to appeal and for constitutional writs — Discretionary considerations in the grant of constitutional relief — Whether availability of appeal a discretionary bar to constitutional relief — Relevance of repeal of applicable legislation to the form of relief provided.

Constitution, s 75(v). Migration Act 1958 (Cth), s 476.

ORDER

Application dismissed.

1. Order absolute for a writ of certiorari directed to the fourth respondent quashing the decision of the fourth respondent in matter V97/06976 dated 11 August 1998.

2. Order absolute for a writ of prohibition directed to the first respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the first respondent by his delegate the third respondent dated 20 May 1997.

3. Order absolute for a writ of mandamus directed to the fourth respondent requiring it to review according to law the decision of the first respondent by his delegate the third respondent dated 20 May 1997.

4. First respondent to pay the costs of the prosecutor.

1 Gleeson CJ. I regret that I am unable to share the conclusion reached by the other members of the Court, not because of any disagreement on a matter of principle, but because I have a different understanding of the reasons of the Refugee Review Tribunal (‘the Tribunal’), whose decision is under review. The facts are set out in the other judgments. Since mine is a dissenting view, on a purely factual issue, I will state my reasons briefly.

2 It is contended that, so far, all who have considered Mr Dranichnikov's case — the delegate, the Tribunal, Kiefel J, and the Full Court of the Federal Court — have misunderstood, and therefore failed to address, that case. The particular question to be decided is whether that is true of the Tribunal.

3 The essence of the contention is that the Tribunal wrongly thought that the relevant social group to be considered, for the purpose of deciding whether Mr Dranichnikov had a well-founded fear of persecution by reason of membership of such a group, was businessmen, whereas his case was that he was a member of a more limited group consisting of businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

4 The Tribunal, in its reasons, said:

‘The Tribunal was informed of the circumstances surrounding the Applicant's actions in relation to trying to stamp out the attacks on entrepreneurs which had been increasing in the latter part of 1993 and the beginning of 1994. He had joined a number of other business people and had made representations to the Mayor and attended public meetings to highlight the plague of corruption and lawlessness. In order to pursue his objective in the field in which he was employed, he worked for the formation of a committee for the registration of property titles; this was achieved. Both the Applicant and his wife gave a number of examples of police inaction after crimes had been committed and standover tactics employed when citizens were doing the right thing and reporting instances to the police. Indeed the Applicant claims that the police put pressure on him to sign a letter requesting the discontinuation of the investigation into the attempt on his own life. He signed the letter because he felt that request as a threat. That was in late February or early March 1994.

…

The Tribunal finds that the harm feared is not motivated by a Convention reason, hence the Tribunal need not proceed to a consideration of whether the fear is well-founded …

The Applicant's adviser had posited in his submission that the Applicant was a member of a particular social group, namely, businessmen in Russia. Even if the Tribunal were to accept this proposition, there is no indication that the persecution is“for reasons of” membership of this group. Following the attempt on the Applicant's life in 1994 the Applicant does not report anything other than dissatisfaction with the society and the political system as a whole; there have been no further attempts to harm him or his family, nor are there indications of behaviour on the part of the Applicant which would attract the adverse attention of anyone for reasons of being a businessman in Russia. The actions which the Applicant described, which he took with other businessmen, in making representations to the Mayor were those of a concerned citizen and not part of a cognizable unit which could be considered a particular social group under the Convention.’

5 The Tribunal's reasons were given on 11 August 1998. The submission to which the Tribunal was referring was contained in a letter of 3 August 1998 to the Tribunal from Mr Dranichnikov's solicitors. The letter said:

‘In recent years businessmen in Russia have been persecuted and murdered purely for belonging to that specific group of people known as “ businessmen”. Mr Dranichnikov by definition of his employment was recognised as a member of the business community who was also actively involved in the pursuit of justice. Mr Dranichnikov by virtue of his businessman status and his stance against crime was considered obstructive and worthy of elimination. The attempt on his life is a very real indication of the graveness of his situation and his justifiable fears of returning to his country of origin.’ (emphasis added)

6 The solicitors evidently, and for good reason, recognised that there may be a difficulty in persuading the Tribunal to treat people who complained about failure to enforce the law, or people who took a ‘stance against crime’, as a ‘particular social group’. Accordingly, the submission stressed Mr Dranichnikov's status as a ‘businessman’, and argued that businessmen constituted a ‘specific group of people’. Mr Dranichnikov's stance against crime was given as a reason why he was at particular risk, but when it came to identifying the relevant social group, his status as a businessman was put in the forefront of the argument. The reasons of the Tribunal responded to the submission as it was put. The Tribunal considered that the most that could be said was that he was a ‘concerned citizen and not part of a cognizable unit which could be considered a particular social group’. The Tribunal appears to me to have considered the argument advanced by Mr Dranichnikov's solicitors, in the light of the evidence and the Convention.

7 I am not persuaded that the Tribunal misunderstood Mr Dranichnikov's case, or failed to address it.

8 I would dismiss the application for special leave to appeal, and the application for constitutional writs, with costs.

9 Gummow and Callinan JJ. The applicant, Mr Dranichnikov, seeks special leave to appeal against a decision of the Full Court of the Federal Court, and prerogative relief under s 75(v) of the Constitution. The question which his application under s 75(v) raises is whether, in substance, the Refugee Review Tribunal (‘the Tribunal’) failed to exercise jurisdiction to review a decision of the delegate of the Minister. If special leave were granted the applicants would urge that the Federal Court erred in dismissing the applicant's application for a review of the Tribunal's decision under s 476 of the Migration Act 1958 (Cth) (‘the Act’).

The facts

10 Mr Dranichnikov arrived in Australia on 8 January 1997 with his wife Olga Dranichnikov and their daughter Maria Dranichnikov. On 20 May 1997, an application that they made on 2 April 1997 for a protection visa under the Act was refused by a delegate of the Minister for Immigration and Multicultural Affairs. They sought a review of the refusal by the Tribunal.

11 On 11 August 1998, the Tribunal decided to affirm the delegate's decision. In doing so it made a number of findings in the applicant's favour.

The findings of the Tribunal

12 Both Mr Dranichnikov and his wife gave credible accounts of their experiences in Vladivostok in Russia. They described, accurately it follows, several instances of police inaction after crimes had been committed and of oppression by police officers.

13 Mr Dranichnikov was the General Manager of a company that provided real estate and legal services in respect of property transactions in the city. The business of the company was not a large one. It had a turnover of about $A15,000 a month and employed only eight people.

14 Before February 1994, Mr Dranichnikov had tried to interest the authorities in ways and means of preventing attacks, including murderous ones, on entrepreneurs. These had been increasing in the latter part of 1993 and in early 1994. His efforts extended to the making of representations to the Mayor of Vladivostok, and attending public meetings to draw attention to endemic corruption and lawlessness in the city....