Dranichnikov v Minister for Immigration and Multicultural Affairs
[2003] HCA 26(Judgment by: Gummow J, Callinan J)
Dranichnikov
vMinister for Immigration and Multicultural Affairs
Judges:
Gleeson CJ
Gummow JKirby J
Hayne J
Callinan J
Legislative References:
Migration Act 1958 (Cth) - s 476
Judiciary Act 1903 (Cth) - The Act
Administrative Decisions (Judicial Review) Act 1977 - The Act
Migration Legislation Amendment (Judicial Review) Act 2001 - The Act
Judgment date: 8 May 2003
Canberra
Judgment by:
Gummow J
Callinan J
[9] 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 A$15,000 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. Another of his endeavours, and one which was successful, was the formation of a committee for the registration of titles. His efforts apparently provoked a serious assault upon him in which he was stabbed at his home in Vladivostok in February 1994. He was so severely injured that he had to be admitted to hospital.
[15] The tribunal also accepted Mr Dranichnikov's evidence that there was an inability and unwillingness on the part of the security forces within Russia to deal with crime. In late February or early March 1994, under duress by police officers in Vladivostok, he signed a letter requesting discontinuation of the investigation into the assault upon him.
[16] Mr Dranichnikov has a subjective fear of returning to Russia: that fear is of physical harm from criminal activities by unknown persons.
[17] But the fear, the tribunal held, did not relate to a "Convention reason": there was no indication that any persecution that he has suffered was "for reasons of" his membership of a particular social group constituted by businessmen in Russia. Neither Mrs Dranichnikov nor their daughter advanced any separate case for the grant of protection visas.
[18] In its reasons the tribunal stated what it apparently thought to be Mr Dranichnikov's case, that the particular social group to which he claimed to belong was of "businessmen in Russia". He contends however that in fact he submitted to both the minister's delegate and the tribunal that the relevant class was a narrower one, of businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime in Vladivostok and to protect Russian businessmen who protested. It is apparent that Mr Dranichnikov placed emphasis in his initial application upon his membership of that narrower group. This appears from a summary of this aspect of his case made on 20 May 1997 by the minister's delegate in his reasons for dismissing the application:
The applicant['s] claim is based on the principle that he belongs to a particular social group of "Entrepreneurs" -- as a businessman in Russia, he is at risk from the criminal organisations that operate in Russia and who have links with the authorities. He states that his profile is raised because he organised anti-crime meetings and spoke out in public against the authorities [sic] inability to defeat crime . [emphasis added]
[19] When the delegate came however to decide Mr Dranichnikov's application he overlooked that Mr Dranichnikov had put his case in the way in which he had. The delegate concluded:
I do not accept that there is evidence to suggest that there is general persecution of businessmen in Russia.
On 8 September 1998 the Dranichnikovs lodged a further application for review with the tribunal in respect of the delegate's refusal to grant them a protection visa. The tribunal refused that application on 21 January 1999 on the basis that it had no jurisdiction because it had already, by its earlier decision, finally determined a request for review of the delegate's decision.
The proceedings in the Federal Court
[20] On 15 February 1999, Mr Dranichnikov applied to the Federal Court for the judicial review of both decisions of the tribunal. Later, in April 1999, he sought judicial review in the court of a separate, but not unrelated, refusal of an application, this time for bridging visas. The applications to the Federal Court were heard together by Kiefel J who, on 7 February 2000, dismissed them.
[21] Mr Dranichnikov appealed to the Full Court of the Federal Court against her Honour's decisions. Then, as he had before Kiefel J, Mr Dranichnikov sought to press many, mostly hopeless contentions. It seems likely that his best case, that of membership of the smALL ER identifiable group of protesting businessmen which he maintained there, was lost in the morass of argumentative and illogical propositions that he advanced generally. The appeals were heard by the Full Court (Whitlam, Tamberlin and Sundberg JJ) which on 14 December 2000 unanimously dismissed them. On 28 June 2002 Gaudron and Gummow JJ referred an application for special leave to appeal from those decisions, and an application for constitutional relief pursuant to s 75(v), to this court.
The proceedings in the High Court
[22] Mr Dranichnikov wished to raise a number of different matters, but by reason of earlier rulings of the court, argument was confined to the following question only:
[W]hether the Tribunal erred in law in treating the applicant as a member of the social group of entrepreneurs and/or businessmen and not of a more limited group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
[23] Mr Dranichnikov contends in this court that the tribunal misstated and failed to deal with the case presented to it. We accept this to be so. The passage that we have quoted from the decision of the delegate shows clearly the emphasis that Mr Dranichnikov placed upon his membership of a special group, not just of business people, but of business people in public protest, in effect, about state sanctioned corruption including, on occasions, violence. There is no reason why he would have presented his case any differently before the tribunal. And in fact he did not. He not only referred to, and relied upon the material which had been presented to the delegate, and which in turn was before the tribunal, but also included a written submission by his solicitor which reiterated Mr Dranichnikov's membership of a group of legitimate business people "who pose a threat to organised crime"; and, that he had taken a "stance against crime". It is clear that the tribunal misunderstood and failed to deal with this important aspect of Mr Dranichnikov's case.
[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made [1] ) which provided as follows:
- (2)
- The following are not grounds upon which an application may be made under subsection (1):
- (a)
- that a breach of the rules of natural justice occurred in connection with the making of the decision ...
[25] The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn.
[26] At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. [2] That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
[27] The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of "businessmen in Russia" was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
[28] It seems to us that had that question been addressed it would in all likelihood have permitted of one only answer, an affirmative one. This is so because the tribunal accepted Mr Dranichnikov as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault which he suffered.
[29] In Minister for Immigration and Multicultural Affairs v Khawar Gleeson CJ said: [3]
As her case is argued, and as a matter of principle, it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude, by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from entrenched cultural attitudes.
[30] The Dranichnikovs' case as presented to the tribunal has in common with Ms Khawar's case, an apparent deliberate abstention by the authorities from the affording of protection to a member of an identified group. Indeed in Mr Dranichnikov's case, it appears that the authorities may have facilitated criminal conduct by forcing him to withdraw his complaint. The group to which he belongs is one which is smALL ER than the group in Khawar and accordingly is easier to identify and define.
[31] The reasoning of McHugh and Gummow JJ in the same case is to a similar effect to that of Gleeson CJ. Their Honours said: [4]
It should, in our view, be accepted that, whilst malign intention on the part of State agents is not required, it must be possible to say in a given case that the reason for the persecution is to be found in the singling out of one or more of the five attributes expressed in the Convention definition, namely race, religion, nationality, the holding of a political opinion or membership of a particular social group. If the reason for the systemic failure of enforcement of the criminal law lay in the shortage of resources by law enforcement authorities, that, if it can be shown with sufficient cogency, would be a different matter to the selective and discriminatory treatment relied upon here. [footnote omitted]
[32] The failure of the tribunal to exercise jurisdiction is also analogous to the situation in Minister for Immigration and Multicultural Affairs v Bhardwaj . [5] In that case the tribunal effectively denied Mr Bhardwaj a hearing of his application for an adjournment, and, as a result, a hearing of his substantive case of the kind to which he was entitled. The tribunal's decision to affirm the minister's decision to cancel Mr Bhardwaj's student visa was therefore made not just in breach of the rules of natural justice, but without affording him a hearing of the kind the Act required he be given. The tribunal failed to give Mr Bhardwaj a hearing of his application for an adjournment as if it had never been made. It accordingly did not exercise jurisdiction in respect of a live application validly made to it.
[33] Relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary. One often compelling discretionary bar is the availability of other relief. Whilst it may be arguable that Mr Dranichnikov might have been entitled to relief under s 476(1)(e) [6] of the Act, the uncertainty of such an outcome, the repeal of s 476 as it then was, and the fact that before he could in any event pursue his arguments in respect of the decision of the Full Court of the Federal Court he would need special leave, mean that there is no relevant discretionary bar to constitutional relief here.
[34] The applicant has made out his entitlement to relief under s 75(v) of the Constitution. Writs of certiorari to quash the tribunal's decision, and of mandamus to compel it to review the delegate's decision according to law, together with prohibition to prohibit any implementation of the delegate's decision should issue. The application for special leave to appeal should be dismissed. The first respondent should pay the applicant's costs of the application under s 75(v) of the Constitution.