Dranichnikov v MIMA, Ex parte - Re MIMA & Ors

[2002] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B96 of 2000

B e t w e e n -

SERGEY DRANICHNIKOV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

Office of the Registry
  Brisbane  No B44 of 2001

In the matter of -

An application for Writs of Mandamus and Prohibition against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MR SEAN STANLEY, DIMA officer of the Onshore Protection Office, Sydney, NSW

Second Respondent

MR ANDREW THOMSON, Delegate of the Minister for Immigration and Multicultural Affairs, Onshore Refugee Program, Melbourne

Third Respondent

REFUGEE REVIEW TRIBUNAL, Melbourne

Fourth Respondent

MR GLEN ANDERSSON, DIMA Officer, Compliance Section, Brisbane

Fifth Respondent

MR THOMAS DRAKOPOULOS, in his capacity as a migration agent (reg No 57780) and as a director of the Migration Institute of Australia (the MARA)

Sixth Respondent

MR GRAHAM RAMSEY, in his capacity as a District Registrar of the Queensland Registry of the Federal Court, Brisbane

Seventh Respondent

AUSCRIPT, Commonwealth Reporting Service

Eighth Respondent

Ex parte –

SERGEY DRANICHNIKOV

Applicant/Prosecutor

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 28 JUNE 2002, AT 9.28 AM

Copyright in the High Court of Australia

__________________

GAUDRON J:   Before we commence, there is an interpreter present in Cairns, I understand.  Mr Court Officer, are you present?

THE COURT OFFICER:   Yes, your Honour.

GAUDRON J:   Would you swear the interpreter, please.

VADIM DOUBINE, affirmed as interpreter:

GAUDRON J:   Yes, thank you, Mr Interpreter.  You may be seated but you will interpret whatever is said as we say it.

MR S. DRANICHNIKOV appeared in person.

MR R.M. DERRINGTON:   May it please the Court, in the application for special leave I appear on behalf of the respondent, and in the application for the order nisi I seek your Honours’ leave to appear for the first to fifth respondents inclusive.  (instructed by the Australian Government Solicitor)

GAUDRON J:   Yes, you have that leave.  Mr Dranichnikov, we think it may be appropriate if you tell us when you need the interpreter, because it seems that you understand, at least, some of these preliminary matters.

MR DRANICHNIKOV:   Thank you, your Honour.

GAUDRON J:   Now, I have a certificate from the Registrar who certifies that she has been informed by the seventh‑named respondent, Mr Graham Ramsey, District Registrar of the Queensland Registry of the Federal Court, that he does not appear at the hearing of this matter and will abide by the order of the Court, save as to costs.  Do you understand that?  Yes.  The Registrar also certifies that she has informed Auscript, the eighth‑named respondent, of the hearing of this matter.  Is anyone here for Auscript?  No.  Now, what is the position in the 75(v) application as to the other respondents?

MR A. BUCHANAN:   Your Honour, I seek leave to appear on behalf of the sixth respondent, Mr Thomas Drakopoulos.  (instructed by Allens Arthur Robinson)

GAUDRON J:   Yes, you have that leave.

MR BUCHANAN:   Thank you.

GAUDRON J:   Now, before we commence, we would say this. We have considered the various affidavits filed in support of the application for relief under section 75(v) of the Constitution and the written argument filed in support of the application for special leave to appeal. Do you understand that?

MR DRANICHNIKOV:   Yes, I understand this is an affidavit in support of a leave to appeal application, you have said.

GAUDRON J:   We have considered all the affidavits.

MR DRANICHNIKOV:   Thank you very much.

GAUDRON J:   We have come to the prima facie view that it is arguable that the Tribunal fell into jurisdictional error in treating the applicant as a member of the class of entrepreneurs and businessmen and not as a member of the more limited class of entrepreneurs or businessmen who had engaged in political and/or public action to have the authorities take action against corruption and criminal activity.  Do you understand that?

MR DRANICHNIKOV:   Yes, your Honour, I understand it.

GAUDRON J:   Just wait one moment.  In this regard, we draw attention to the decision of the delegate, being annexure F to the affidavit of Mr Dranichnikov of 12 June 2001 in which it is acknowledged that he claimed to have organised anti‑crime meetings and to have spoken out against the authorities inability to defeat crime.  Do you understand that?

MR DRANICHNIKOV:   Yes, your Honour, thank you.

GAUDRON J:   We also draw attention to the written submissions of Mr Drakopoulos, being annexure I to the affidavit of Mr Dranichnikov of 25 January 2002 in which reference is made to his involvement in organising protest meetings at which he criticised law enforcement agencies.  Do you understand that?

MR DRANICHNIKOV:     Yes.

GAUDRON J:   Yes.  We further draw attention to the decision of the Tribunal, being annexure K to the affidavit of Mr Dranichnikov of 12 June 2001, in which the Tribunal regarded him as a credible witness and seemingly accepted that:

He openly criticised the authorities for their lack of effort in solving these crimes; he did this at public meetings.

At this stage we consider we would be assisted by hearing first from Mr Derrington as to why we should not refer so much of the application for relief under section 75(v) of the Constitution and of the application for special leave to appeal as raises the question whether the Tribunal erred in law and also fell into jurisdictional error in not regarding Mr Dranichnikov as a member of the limited class of businessmen and entrepreneurs who publicly criticised law enforcement authorities. Do you understand that?

MR DRANICHNIKOV:    Yes, thank you.

GAUDRON J:   Yes, Mr Derrington, and you may have to slow down a little bit for the benefit of the interpreter.

MR DERRINGTON:   I appreciate that.  Thank you, your Honour.  With respect to the question identified by your Honours, it is the submission of the respondents that it is not part of the inquisitorial role of the RRT to lead an applicant to make a claim, or to lead from an applicant evidence of a claim that is outside of the claim made by the applicant and the material presented.

Indeed, in the application before the Refugee Review Tribunal, the applicant was, as your Honour has identified, represented by a solicitor who made written submissions on his behalf in which reliance upon political opinion, if that be the criteria, was denied.

GUMMOW J:   No.

GAUDRON J:   No.  Perhaps you have misunderstood what I said, Mr Derrington.  It is the possibility of the misidentification of the relevant social group.

MR DERRINGTON:   The point made by Mr Drakopolous to the Tribunal was that the political activities, by themselves, were not sufficient to raise a “fear of persecution”.  That was the last paragraph on the first page of the letter.  Now, as I apprehend the case, being that it is a combination of both the political activities and the group, or sub‑social group, of a class of businessmen, with respect, the second point that we would agitate is that there is no sufficient reason to think that there is any material to identify a fear of persecution arising from membership of such a sub‑group.  Perhaps the interpreter would like to interpret that, if he can.

We would, your Honours, rely on three points in relation to the causation question.  The first is the harm was inflicted by a person who is unknown.  That contextualises the fact that it was a single, isolated event of harm – not just a single event of harm, but an isolated event of harm.

Importantly to the Tribunal, and importantly to all members of the courts below, the applicant remained within that social group, or the sub‑social group.  He remained in the Russian society and he remained there without incident for three years after the event in question.

GAUDRON J:   But, I wonder, Mr Derrington, whether that answers the issue that we have raised with you.  If the Tribunal did fall into error in misidentifying the class, it would be for the Tribunal to consider those other issues.

MR DERRINGTON:   It is true that the Tribunal did not ultimately determine whether there was, in fact, persecution and certainly did not determine it in the context of the issue now raised.  However, your Honours, it would ‑ ‑ ‑

GUMMOW J:   Now, Mr Derrington, you may ultimately be right, but the immediate question is whether or not there is not enough in this to support reference, as has been foreshadowed, of the application for relief under 75(v), as to part of it, and of the special leave to appeal into the Full Court.  You may ultimately win.

MR DERRINGTON:   I appreciate what your Honour says.  We would, nevertheless, agitate that in terms of the definition of the social group it was, if you like, impossible – well, perhaps improper, for the Tribunal to attempt to isolate for itself a different social group than that put forward by the applicant’s solicitor.  It would cast a very heavy burden on a Tribunal were it now required to fish around – “fish around” is the wrong expression – but to hunt around for another class that the applicant might fit within.  In this case, it was presented on the basis of being a class of entrepreneurs.

GAUDRON J:   But also on the basis that he had taken certain political and public action.

MR DERRINGTON:   Indeed, your Honour, but that was mere colour to the circumstance in which he operated.

GUMMOW J:   That is the problem.

GAUDRON J:   Or description of the class.

MR DERRINGTON:   True enough.

GAUDRON J:   Perhaps we should translate that.

MR DERRINGTON:   Thank you, your Honour.  It is in the characterisation of the social group.  If that is the issue before the Tribunal, ultimately we are left to identify that there is a lack of evidence or any material leading towards a determination that persecution was for that Convention reason.  That, of course, as your Honour said, is a matter that might have to be determined if they were faced with the right question.  Back to the issue, the characterisation, although as a special leave question, I think has been dealt with more recently by the High Court, and I think in Khawar, and for that reason this is not a suitable vehicle, it being already a matter determined.  So it is more a factual question of the ascertainment of the nature of the class.

GAUDRON J:   That may be relevant to the special leave application.

MR DERRINGTON:   Yes.

GAUDRON J:   How does it bear on the 75(v) application?

MR DERRINGTON:   In this way, your Honour, as a matter of discretion, if ultimately there is no purpose in granting the order nisi, because even if a new social class was identified, if there is a lack of material, or was a lack of material before the Tribunal identifying persecution for that reason, the order would not be made absolute and, ultimately, it being a matter ‑ ‑ ‑

GUMMOW J:   We were not proposing to grant an order nisi.  We were proposing to refer it in on the basis that final relief would be sought in the Full Court in the first instance.

MR DERRINGTON:   I apologise, your Honour.  In any event, the point is still good, as before the Full Court, because ultimately there is no material which would suggest that any error was of any consequence and, ultimately, that is relevant to the 75(v) application as well.

Your Honour, I think I can only answer it with those two propositions.  Unless there is anything further.

GAUDRON J:   Yes, thank you, Mr Derrington.  Did you need to translate that, Mr Interpreter?  I do not think you did.  I think that is all understood, is it?

GUMMOW J:   I think it is understood.

GAUDRON J:   But I would like you to translate this fairly carefully, if you would not mind. Mr Dranichnikov, we are of the opinion that your special leave application and your application for relief under section 75(v) of the Constitution should be referred to a Full Bench of this Court for argument on the question whether the Tribunal erred in law and/or fell into jurisdictional error in proceeding on the basis that you were a member of a social group consisting of entrepreneurs and businessmen, and not of a more limited group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for their failure to take action against crime.

Now, we realise that this is not the precise point upon which your applications are based and we also realise that there are other points which you wish to raise.  We think it proper to tell you, Mr Dranichnikov, that our preliminary view is that the other points do not raise any issue that would entitle you to relief in this Court.

We recognise that you may have been disadvantaged in the formulation of those points by reason that you have not had legal advice and you may have had difficulties with the English language. Should you wish to address us on those other points, you are free to do so, but for no longer than 20 minutes in relation to the application under the Constitution and a further 20 minutes in relation to the special leave application.

However, we propose to recommend to the Queensland Bar Association and, if it cannot assist you, the New South Wales Bar Association, so that pro bono legal representation be provided to you so that the points we have identified can be properly argued.  Because we will make that recommendation, it seems to us that the better course is to dismiss your applications, except to the extent that they raise the point we have identified, but grant you leave to file an amended application and also amended draft grounds of appeal, if you are so advised.

We would wish to know if that course would be satisfactory.  Do you want to talk to your wife?  Do you wish to talk to the interpreter further about it?

MR DRANICHNIKOV:   No, thank you.  Your Honour, if the Court pleases, can I ask the assistance of my wife?

GAUDRON J:   Yes, certainly.

MR DRANICHNIKOV:   Thank you.

GUMMOW J:   Do you have any questions you would like to ask the Bench?

MRS O. DRANICHNIKOV:   Yes, your Honours.  Can I respectfully ask you to consider grounds for special leave application, which my husband stated already in his summary of argument and, if it possible, can you give us additional time to amend our application with additional grounds for special leave of appeal application because it involved – it is a very serious question – because in the RRT decision, RRT member erred in jurisdictional error by failure to admit me as an applicant.             Actually, I have got an affidavit here and ‑ ‑ ‑

GAUDRON J:   We have considered that point, Mrs Dranichnikov.

MRS DRANICHNIKOV:   Yes, because it is very serious ‑ ‑ ‑

GAUDRON J:   But I think what we are proposing is that you can raise that with your lawyer, whom we hope will be provided to you, and we would propose that after you have had proper legal advice, that your lawyer could approach this Court for leave to amend or enlarge the grounds.

MRS DRANICHNIKOV:   Thank you so much, your Honours.  I really appreciate your help and assistance and understanding of our situation, but you know, unfortunately, we do not trust lawyers, unfortunately because ‑ ‑ ‑

GUMMOW J:   I am afraid you will have to.

GAUDRON J:   You will have to.

GUMMOW J:   That is the way our society works and if you wish to join our society, you must understand that.

MRS DRANICHNIKOV:   Sorry.

GAUDRON J:   There is no way, I can tell you, that you can competently argue the questions that we have identified.  You must have a lawyer to do that for you, but the lawyer will be from an independent Bar and will be in no way associated with the Immigration Department and will be expected, by this Court, to act in an entirely independent manner, as we expect all lawyers to behave.

MRS DRANICHNIKOV:   Can I ask your Honours, respectfully – yes, I suppose this lawyer/barrister, if it will be granted legal aid to us – as you know, we were refused legal aid.  My application – my husband’s application ‑ ‑ ‑

GAUDRON J:   Yes, we will ask the Bar Associations to provide you with a legal representative without charge.

MRS DRANICHNIKOV:   Thank you.

GAUDRON J:   But that lawyer may suggest, in view of what we have said, that you should renew your application for legal aid.

MR DRANICHNIKOV:   Your Honour, may I respectfully ask you, as I understand that the Court going to refer this matter for legal aid and then with amended application the barrister – or leave will be granted and the Full Court will consider the matter.

GAUDRON J:   The Full Court will consider the matter and the Court will recommend that a barrister be provided to you, but not by the Court, by the Barristers’ Association.

MR DRANICHNIKOV:   Thank you, and I beg your pardon.  Can I ask you respectfully about the Full Court will consider the application for leave – leave to appeal application for review of a decision?

GAUDRON J:   The Full Court will consider your application for special leave to appeal and the application for relief under 75(v) to the extent we have identified, but we will leave open the possibility that a lawyer might wish to add other matters and can approach a single Justice to obtain leave to do that.

MR DRANICHNIKOV:   Thank you, your Honour.

GAUDRON J:   Do you understand that?

MR DRANICHNIKOV:   Yes, I understand, your Honour.  Thank you very much.

GAUDRON J:   Now, I should tell you, that leaves, however, the question of the last three respondents to your 75(v) application; that is, the District Registrar of the Federal Court, Auscript and Mr Drakopoulos.  Our preliminary view is that there is no possibility of relief being granted in this Court against those respondents, and it would not be of any use to you anyway.  You can address us with respect to those matters now, if you like, but for no more than 20 minutes, but you do not have to if you accept the view that you cannot succeed on those matters.

MR DRANICHNIKOV:   Thank you, your Honour.  I agree, respectfully, these respondents in the application for mandamus and prohibition regarding Mr Ramsey and Auscript.  One point that Mr Drakopoulos also would like to squash his, I would say, submission or decision because he made the wrong decision and this decision mislead the Refugee Review Tribunal and following courts.

GAUDRON J:   The difficulty with Mr Drakopoulos, and also with Auscript, is that neither can really be called an officer of the Commonwealth.  The difficulty with Mr Ramsey is that there is no relief we could give that would assist your case.

MR DRANICHNIKOV:   Your Honour, regarding Mr Ramsey, actually the District Registrar prevent me from examining the transcripts of all hearings before courts below and he is a Commonwealth officer.

GAUDRON J:   I do not see, at this stage, that that transcript is going to be relevant to the outcome of your claims, but should it prove otherwise, this Court can get that transcript.

MR DRANICHNIKOV:   Thank you, your Honour.  Also, regarding Mr Ramsey, in court below I was prevented and obstructed put appeal papers before the court below and it also misled the judges because they have not enough material and they have a transcript before Refugee Review Tribunal because by order I was obstructed in this way and it is very important.  I understand the question about political opinion and jurisdictional error and judicial error in which Refugee Review Tribunal fail.  It is most important question for me.

GUMMOW J:   It is the important question.

MR DRANICHNIKOV:   Yes, the important – because it is a matter of life and death.  Thank you, your Honour.  I appreciate your help and I would agree for legal aid.  Just can I respectfully ask you, the questions which barrister or solicitor can raise before the Full Court could be wider than only political opinion under social groups.

GAUDRON J:   As we see it at the moment, that is your only way through, but your lawyer, when you consult a lawyer, may be able to give you advice.

MR DRANICHNIKOV:   Thank you very much.

GAUDRON J:   We cannot assure you that that is so, because we do not, for ourselves, see that that issue can be advanced now, but your lawyer may see otherwise.

MR DRANICHNIKOV:   Thank you, your Honour.  I would like to say, respectfully, in relation to judicial error and in recent cases in Miah and Eshetu it was discussed about jurisdictional error, but information which the Department of Immigration delegate and also Refugee Review Tribunal have in their possession ‑ ‑ ‑

GAUDRON J:   Yes.  Well, we know those cases.  You can raise those with your lawyer, but that, I think, is an issue for another day.

MR DRANICHNIKOV:   Thank you, your Honour.  Thank you very much.  Can I ask, respectfully, for the assistance of my wife once more.

MRS DRANICHNIKOV:   Thank you very much, your Honours.  Thank you very much for referring my husband’s matter to legal aid for assistance.

GAUDRON J:   No, we have not referred it to legal aid.

MRS DRANICHNIKOV:   To the Bar Association for pro bono assistance scheme, and, your Honours, I respectfully ask you, my husband may be – I had legal background in Russia and I am able to put some grounds also and actually, in his initial application for special leave, it put not only this issue ‑ ‑ ‑

GUMMOW J:   We understand that.

MRS DRANICHNIKOV:   Yes.

GAUDRON J:   Yes, but you must raise them with your lawyers.  We understand that you have grounds.  We understand you have written them down.  At the moment, we do not see that they will result in relief in this Court, but your lawyer may be able to see otherwise and can come back to this Court then.

MRS DRANICHNIKOV:   Your Honours, respectfully, I do not understand why you cannot see a relief for special ground for ‑ ‑ ‑

GUMMOW J:   Well, you must just accept it at this stage, I am afraid, Mrs Dranichnikov.

MRS DRANICHNIKOV:   Yes, yes, I accept that.  I respectfully ‑ ‑ ‑

GUMMOW J:   We have been sitting here since 9.30, very carefully going through this.

MRS DRANICHNIKOV:   Yes, thank you so much, but you know it is special case about refugee matter.  Refugee Tribunal, they failed to admit me an applicant ‑ ‑ ‑

GAUDRON J:   Well, I understand that, but you have a number of difficulties in your way in that case because you are not a party to these proceedings.

MRS DRANICHNIKOV:   But, your Honour, I am an interested person.

GAUDRON J:   No, no, I know you have an interest, but these are matters that you need to take up with a lawyer.  They are not matters about which we can give you advice.  That would be improper for us.  We can just tell you the door is not closed, but you need to see a lawyer and to approach this Court again.

MRS DRANICHNIKOV:   Okay, thank you so much.

GAUDRON J:   But there remains, and I will raise it with Mr Buchanan – Mr Buchanan, you will have heard from what has been said, that we would propose to dismiss the application so far as it concerns the District Registrar of the Federal Court, Auscript and your client.  We presume you do not ask for costs.

MR BUCHANAN:   I will not be pushing that, your Honours.

GAUDRON J:   No.  There will be these orders.  In matter No B44 of 2001:

1. The application for relief under section 75(v) of the Constitution so far as concerns the sixth, seventh and eighth respondents, the District Registrar of the Federal Court, Auscript Pty Limited and Thomas Drakopoulos, is dismissed.

2. So far as the application for relief under section 75(v) of the Constitution raises the question whether the Tribunal fell into jurisdictional error in identifying the prosecutor as the member of the social group of entrepreneurs and/or businessmen rather than 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, the application is referred to a Full Bench of this Court and, to that extent, costs of the application are costs in the cause.

You do not resist that costs order?

MR DERRINGTON:   No.

GAUDRON J:   No.

3.        To the extent that the application has not otherwise been determined, the application is dismissed and no order made as to costs.

You do not resist that?

MR DERRINGTON:   No.

GAUDRON J:  

4.        Leave is reserved to the applicant to apply to a single Justice to amend or enlarge the grounds upon which he relies as he may be advised by his lawyer.

5.        The Registrar is directed to forward a copy of today’s transcript and orders to the Queensland Bar Association and, if it cannot provide pro bono legal representation for the applicant, to forward a further copy to the New South Wales Bar Association.

In matter No B96 of 2000 the orders are these:

1.        So far as it raises the question whether the Tribunal erred in law in treating the applicant as a member of the social group consisting of entrepreneurs and/or businessmen and not of a more limited group of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime, the application is referred to a Full Bench of this Court to be argued as if on appeal.

2.        Otherwise the application is dismissed.

3.        Leave is reserved to the applicant to apply to a single Justice of this Court to amend or enlarge the draft grounds of appeal if so advised by his lawyer.

4.        Direct the Registrar to forward a copy of today’s transcript and these orders to the Queensland Bar Association and, if necessary, to the New South Wales Bar Association.

Now, Mr Dranichnikov and Mrs Dranichnikov, this area of the law is very complex and quite technical, particularly when matters get into this Court.  It is imperative that you listen to what your lawyer says and do not take the view that the lawyer is against you just because he or she does not think your points will succeed.  Do you understand that?

MRS DRANICHNIKOV:   Thank you, your Honour.  Thank you very much.  Thank you.

GAUDRON J:   Do you need that translated?

MRS DRANICHNIKOV:    No, thank you.  We understood.

GAUDRON J:   We would like to thank you, Mr Interpreter, for your assistance.  It has been very beneficial to us.  Otherwise, the Court will adjourn until 10.15 am in Canberra on 6 August, but Justice Gummow will resume in Chambers shortly.

AT 10.36 AM THE MATTERS WERE CONCLUDED