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Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26

Dranichnikov
vMinister for Immigration and Multicultural Affairs

Court:
High Court of Australia

Judges: Gleeson CJ
Gummow J
Kirby 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

Hearing date: 4 February 2003
Judgment date: 8 May 2003

Canberra

Order

In matter B96 of 2000

Application dismissed.

In matter B44 of 2001

(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.

Section 476 was repealed and substituted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and subsequently amended by the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth).

Article 1A(2) of 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 defines a refugee as a 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."

(2002) 187 ALR 574 at 581 [26]; 76 ALJR 667 at 671.

(2002) 187 ALR 574 at 594 [84]; 76 ALJR 667 at 681.

(2002) 187 ALR 117; 76 ALJR 598.

At the relevant time, s 476(1)(e) provided:
"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
...

(e)
that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision ...".

Convention relating to the Status of Refugees done at Geneva on 28 July 1951, Art 1A, 1954 Australia Treaty Series 5. See also the Protocol relating to the Status of Refugees done at New York on 31 January 1967, 1973 Australia Treaty Series 37.

See especially the Act s 36(2).

The Act s 457.

The Act was amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

The Convention Art 1A says, relevantly: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: ... (2) owing to well-founded fear of being persecuted for reasons of ... 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".

Decision of the delegate, para 3.3.1.

Decision of the delegate, para 3.3.3 (emphasis added).

Decision of the delegate, para 3.3.5 (emphasis added).

Decision of the delegate, para 3.3.5.

The Act s 412. The powers of the tribunal are set out in s 415.

Application of Serguei Dranichnikov, Decision and reasons for decision of the Refugee Review Tribunal, 11 August 1998 (decision of the tribunal) at 5.

Decision of the tribunal at 6.

Decision of the tribunal at 6 (emphasis added).

Dranichnikov v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 482 at 490-1 [34].

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801; BC200007632 at [40].

[2000] FCA 1801; BC200007632 at [47].

[2000] FCA 1801; BC200007632 at [49].

[2000] FCA 1801; BC200007632 at [49].

[2000] FCA 1801; BC200007632 at [49].

[2000] FCA 1801; BC200007632 at [49].

[2000] FCA 1801; BC200007632 at [49].

Decision of the tribunal at 5.

Decision of the tribunal at 6.

Decision of the tribunal at 6.

See these reasons at [50].

Decision of the tribunal at 6 (emphasis added).

Decision of the tribunal at 6.

eg Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ; 142 ALR 331.

UN Doc A/Conf.2/SR.3 at 14 cited in Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar -- Sanchez-Trujillo v INS , 801 F 2d 1571 (9th Cir 1986)" (1987) 62 Washington Law Review 913 at 925.

Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar -- Sanchez-Trujillo v INS , 801 F 2d 1571 (9th Cir 1986)" (1987) 62 Washington Law Review 913 at 926.

Grahl-Madsen, The Status of Refugees in International Law , vol 1, 1966, pp 185-6 cited in Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar -- Sanchez-Trujillo v INS , 801 F 2d 1571 (9th Cir 1986)" (1987) 62 Washington Law Review 913 at 925-6.

Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar -- Sanchez-Trujillo v INS , 801 F 2d 1571 (9th Cir 1986)" (1987) 62 Washington Law Review 913 at 927-8.

(1997) 190 CLR 225; 142 ALR 331.

(2000) 201 CLR 293; 170 ALR 553.

(2000) 204 CLR 1; 175 ALR 585.

(2002) 187 ALR 574; 76 ALJR 667.

eg R v Immigration Appeal Tribunal ; Ex parte Shah [1999] 2 AC 629 ; [1999] 2 All ER 545; Canada (Attorney General) v Ward [1993] 2 SCR 689; Sanchez-Trujillo v Immigration and Naturalization Service 801 F 2d 1571 (9th Cir 1986).

eg cases cited in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 260-3, 280-3, 299-308; 142 ALR 331 at 356-8, 372-4, 387-94. See also cases collected in Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar -- Sanchez-Trujillo v INS , 801 F 2d 1571 (9th Cir 1986)" (1987) 62 Washington Law Review 913 at 927-8.

(1997) 190 CLR 225 at 256-7; 142 ALR 331 at 352-4.

Skenderaj v Secretary of State for the Home Department [2002] 4 All ER 555 at 561 [18], 565 [29].

R v Immigration Appeal Tribunal ; Ex parte Shah [1999] 2 AC 629 at 657-8 ; [1999] 2 All ER 545 at 567-8.

Skenderaj v Secretary of State for the Home Department [2002] 4 All ER 555 at 566 [30].

Constitution s 73.

Eastman v R (2000) 203 CLR 1 at 12-13 [16]-[17], 24 [68], 35 [111]-[112]; 172 ALR 39 at 42-3, 52, 61; cf at CLR 81-2 [248]-[249], 123 [370]; ALR 98-9, 131.

Gipp v R (1998) 194 CLR 106 at 116 [23], 151-3 [130]-[133]; 155 ALR 15 at 22, 50-2; cf at CLR 125-7 [56]-[61]; ALR 30-2.

[2000] FCA 1801; BC200007632 at [49].

Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 661 [263] ; 76 ALJR 966 at 1010.

Re Minister for Immigration and Multicultural and Indigenous Affairs ; Ex parte Applicants S134 / 2002 (2003) 195 ALR 1 at 8 [31] ; 77 ALJR 437 at 442-3.

[2000] FCA 1801; BC200007632 at [49].

s 39B.

ss 5, 6.

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 641 [103] ; 162 ALR 577 at 599.

R v Toohey ; Ex parte Northern Land Council (1981) 151 CLR 170 at 267-8 ; 38 ALR 439 at 517-19; cf Ex parte Hebburn Ltd ; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 422.

Re Minister for Immigration and Multicultural Affairs ; Ex parte Miah (2001) 206 CLR 57 at 82 [81] ; 179 ALR 238 at 256-7.

Plaintiff S157 / 2002 v Commonwealth (2003) 195 ALR 24 at 47 [83] ; 77 ALJR 454 at 471.

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 227-8 [82]-[83] ; 174 ALR 585 at 609-10; Re Refugee Review Tribunal ; Ex parte Aala (2000) 204 CLR 82 at 136-7 [147]-[149] ; 176 ALR 219 at 259-60; Re McBain ; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1 at 46 [175] ; 76 ALJR 694 at 727.

cf Abebe v Commonwealth (1999) 197 CLR 510 ; 162 ALR 1.

Re Refugee Review Tribunal ; Ex parte Aala (2000) 204 CLR 82 at 89 [5], 101-8 [43]-[55], 136-7 [145]-[150], 144 [172]; 176 ALR 219 at 221, 231-6, 259-60, 265; Re Minister for Immigration and Multicultural Affairs ; Ex parte Miah (2001) 206 CLR 57 at 103 [150]-[152] ; 179 ALR 238 at 274-5; cf Re McBain ; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1 at 25-6 [95], 59 [229]; 76 ALJR 694 at 712-13, 736.

(1999) 197 CLR 510.


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