Dranichnikov v MIMIA
[2003] HCATrans 548
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
Office of the Registry
Brisbane No B44 of 2001
In the matter of -
An application for a Writ of Mandamus, Certiorari and Prohibition against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
SEAN STANLEY, DIMA Officer of the Onshore Protection Office, Sydney, NSW
Second Respondent
ANDREW THOMSON, Delegate of the Minister for Immigration and Multicultural Affairs, Onshore Protection, Melbourne
Third Respondent
REFUGEE REVIEW TIRUBNAL,
Fourth Respondent
GLEN ANDERSSON, the DIMA Officer, Compliance Section, Brisbane
Fifth Respondent
Ex parte –
SERGEY DRANICHNIKOV
Applicant/Prosecutor
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 FEBRUARY 2003, AT 10.17 AM
Copyright in the High Court of Australia
MR S. DRANICHNIKOV appeared in person.
GLEESON CJ: Mr Dranichnikov, do you need, and have there been arrangements made for, the services of an interpreter?
MR DRANICHNIKOV: Yes, please, your Honour. If the Court pleases, I would like to ask leave to assist the interpreter in the case if necessary. I prepared my submission in English for convenience, and if the Court would not understand me or I could not understand a speech from the respondent or Court, may I ask assistance in that?
GLEESON CJ: Yes, well, we will proceed on the basis that any time you feel the need of the assistance of an interpreter, you will be able to let us know.
MR DRANICHNIKOV: Second, I would like to ask if the Court pleases, to ask leave of the Court to have assistance of my wife, that she can sit next to me on the left and help me, because she has a legal background in Russia and she was helping me with preparation with appeal.
GLEESON CJ: Yes.
MR DRANICHNIKOV: Thank you very much.
MR J.A. LOGAN, SC: If the Court pleases, I appear in matter B96 of 2000, special leave application, with my learned friend, MR R.M. DERRINGTON. In respect of the other referred application, B44 of 2001, I seek leave to appear with Mr Derrington. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, thank you.
KIRBY J: In that purported provision in the recent migration legislation, forbidding the naming of a party in courts, does that apply to this case? It is directed to courts, I think, and not to the general public, but my understanding is it is a procedural provision that picks up even cases midway.
MR LOGAN: Yes. 91X, I think ‑ ‑ ‑
KIRBY J: Yes, exactly.
MR LOGAN: ‑ ‑ ‑ is the provision concerned, your Honour. I recall that was mentioned in the course of the argument in the decision just published.
KIRBY J: For your information, in that case, the Court has not dealt with the validity of it. It simply noted it and conformed to it. But it just occurred to me it may pick up these proceedings as well.
MR LOGAN: On the face of it, it would.
GLEESON CJ: Would you check on that and give us your assistance in due course?
MR LOGAN: Yes, if the Court pleases.
GLEESON CJ: Yes, Mr Dranichnikov.
MR DRANICHNIKOV: Thank you very much. First of all, I would like to say the two matters before this Court this morning are, first of all, this is an appeal brought from the judgment of the Full Federal Court given on 14 August, and granted this appeal is under section 476 because at that time it was – in section 476A the procedure that is required by this section and regulation to be observed in connection with making the decision was not observed.
GLEESON CJ: No, I think you are wrong about that. This is not an appeal against anything. This is an application for special leave to appeal against a decision, and that is a matter that has been referred into this Court by two Justices of the Court.
KIRBY J: Would you mind if perhaps the Court officer could help to raise the podium. I am a little short of hearing and it might be more easy to hear you if we have you speaking right into the microphone. Is that inconvenient?
MR DRANICHNIKOV: Thank you very much.
KIRBY J: Thank you very much.
MR DRANICHNIKOV: Yes, the Full Court Justice Gaudron and his Honour Justice Gummow referred the matter to the Full High Court for this hearing for today and they referred this matter because I was seeking another matter under section 75 of the Constitution because actually in the matter which writ of mandamus, prohibition and certiorari is sought against the representative of the Commonwealth and this is a matter of public importance, of course, because this matter, certainly, life and death when the applicant apply for protection and seeks protection in the country. If I can start with definition of the refugee and a refugee is a person who, owing to a well‑founded fear by being persecuted for a reason of race, nationality, membership of a particular social group or political opinion who is outside the country and his nationality and a neighbour or owing to such fear is unwilling to work himself or herself with the protection of the country. Of course, this is a very hard decision to leave own native country, and in our matter, we could not really leave the country. We trust in the situation will be improved, and as you know probably from my books of appeal, the attempt on my life was in 1994.
So we left the country only in 1997. So of course we trusted in the country the situation will be improved and we will live in the country but we had to accept only fear can enforced any person to leave the country and to escape persecution and in this matter of course we explained the material and documents to the respondent, to the Department of Immigration in the first instance and then to the Refugee Review Tribunal and the ground was – which the Full Court referred in 28 June of last year was that the Tribunal erred in the law by not considering the fear of persecution of the applicant that the Tribunal erred in the law and…..reason for fear of persecution on the part of the applicant who belongs to a particular social group, entrepreneurs, in more than criminal activity with another person but that to treat the appellant as a person who belongs to a more limited group consisting of entrepreneurs who publicly criticised law enforcement authorities for failing to take action against crime and criminals. So we ‑ ‑ ‑
KIRBY J: Now, just let me understand, were you represented before the Tribunal by a migration agent or were you there unrepresented?
MR DRANICHNIKOV: I was represented before the Refugee Review Tribunal by myself. Actually, an immigration agent he was on the line just – he was hearing the process of the hearing, what the speeches was, but the inquisitorial function of the Refugee Review Tribunal require the applicant to appear himself and present the evidence before the Tribunal, so which I actually gave testimony before the Tribunal at the hearing which was held on the 7th.
KIRBY J: You see, at least one question that arises in my mind is whether or not you define the class of the particular social group in the broad or the narrow sense. That may not be final but I would like to know exactly how you defined it before the Tribunal ‑ ‑ ‑
MR DRANICHNIKOV: Yes, your Honour. If the Court ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ because, in a sense, the Tribunal responds to the way you present your case.
MR DRANICHNIKOV: Yes, your Honour, thank you. If the Court pleases, I would like to say of course this is the class no doubt that businessman is a social group. So but in this case entrepreneurs who criticised the law enforcement authority, this is…..class of group in my opinion and what the precedent says this is consistent with a particular social group which can lead to persecution under the Convention because I expressed political opinion and the unity which explained in many cases like in The Minister v Ward in Canada it was, firstly, it should be particular unifying characteristic. This is characteristic reason of persecution. So, this is characteristic actually in my first claim to the Department.
If you like, I will show you that in my submission to the Department of Immigration this is volume ‑ I think this is volume No 2, your Honour, volume No 2, the appeal record book, can ….. please is page 155.
KIRBY J: I think at paragraph 3.3.1 of the reasons of the Tribunal, which is at page 47 of the application book, it states that your claim:
is based on the principle that he belongs to a particular social group of “Entrepreneurs” - as a businessman ‑
but it then goes on to state:
He states that his profile is raised because he organised anti‑crime meetings and spoke out in public against the authorities inability to defeat crime.
So is it your contention that before the Tribunal you identified the group that you said you belonged to as “Entrepreneurs” but of the particular kind who had “organised anti‑crime meetings and spoken out in public against the authorities’ inability to defeat crime”?
MR DRANICHNIKOV: Yes, it is correct, your Honour. In my submission, I assert that both my wife and I have a strong sense of justice. This is ‑ ‑ ‑
GLEESON CJ: Now, you were in the course of referring us to a page in volume 2. What page was that?
MR DRANICHNIKOV: I was referring to page 157 of volume 2. This is actually initial submission to the Department of Immigration with application on 2 April 1997. So in this submission, yes, I was expressed as someone who belongs to social group with ….. It worried me extremely because of attack on the people, and people were killed and no action was taken by the authority. I could see myself as a target. I openly criticised the work of the law authorities committing organised…..with the authority. So we could not ….. when people were killed and no one was punished for it. This is a group identified by special characteristic. I would like to refer to page 157, exactly the same submission. It says that:
Both, my wife ‑ ‑ ‑
GLEESON CJ: Just excuse me for a moment. There is a problem with the sound that is coming through.
MR DRANICHNIKOV: Now, I said that:
I have strong sense of justice.
So this characteristically unified and to bring us together in a particular social group. People who could not stay and who expressed their opinion who can say a political opinion criticised the law authority because this person have conscience, they could not stay….. somewhere.
Actually, I would like to refer also – this is supplementary appeal book and I would like to ask leave that I can use this book. At the end of this book, sworn testimony before the Refugee Review Tribunal at the hearing, so this is the transcript of the hearing. In the supplementary book I would like to refer to page 8, please – sorry, 307. First of all, the conductor of the hearing asked me a question about actually what the problem and page 307 started, I was expressing:
Yes, there were some attempts. We gathered at the Round Table in the City, Executive Committee, which is the City Council and we tried to discuss those things.
Later on, next passage of mine it says that no, I was not – the question was about my – that I were in city council or not and I said:
No, I was not. We, entrepreneurs, were invited to take part in the discussions about our operation.
Later it says about managers of the company.
We wanted to change the way of psychology, the way of thinking though it’s very difficult to do. We wanted to involve the government, the police and other government agencies in that campaign of fighting crime, fighting corruption in order to protect citizens, in order to maintain order in the country and to maintain order in the way of the businesses operating.
This is reason why we been involved in this activity. Of course, the conductor asked me about reason and it is very important, I think, for this Court. This is, if the Court pleases, page 309.
It starts from the beginning:
I think, this is a consequence of the events that took place in the country since the Revolution of 1917. Because the objective of the authority of the government is to maintain order and to keep order as to maintain laws, but some people disobeyed the laws, violated the laws and those people existed within the government structures. The experience says and a lot of publications confirm that people are killed for two reasons: for money – first –
I agree with that –
and the second – when people become unwanted for their activity –
of the authorities or different people. They openly spoke about that. And then conductor asked him:
Was it one of these two reasons that according to you that you were attacked on the 15th of February 1994?
SERGEY DRANICHNIKOV: Yes, I think the attempts to take my life was because I was unwanted because of my activity, because of my right thing we wanted to help people. I envisage that that attempt on my life was because I was unwanted, some people thought that I was in their way.
And also then…..as the police after attempt on my life there was police in the place. They took the evidence and all things and then a few weeks later when I was able to attend – I attended police office headquarter and after…..preparation, yes, that is right, and then I asked them about an investigation. It says further on the same page we found it at 19 and 20. It says:
The police officer took me outside and asked me to sit in the car. In the car he told me that it would be better if I recall my application. He said, it would be difficult to find this person. Even we found him, his friends will take revenge on you.
I felt pressure because you can understand what a person can feel when attempt was – people wanting to kill you. I was stopped after pressure and then police not protecting you and threaten you…..and even in this situation we left in Russia we hoped, because the government promised situation to be under control and they are fighting crime, but what happened indeed.
So this shows about my real reason to the Department and RRT, that the reason of persecution, which is very important in the consideration of particular social group, is for reason of expression – criticising law enforcement authority for political outlook, for political view, and I belong to a particular social group more narrow than all entrepreneurs and businessmen. This is – like Tribunal decided. This is narrow group and defied by a strong sense of justice by people with political outlook and, in this case the Tribunal was ‑ ‑ ‑
KIRBY J: I think the highest that your point rises to is that on page 48 in the reasons of the Tribunal, in 3.3.5 it says:
I do not accept that there is evidence to suggest that there is general persecution of businessmen in Russia.
And that might be argued to indicate that the Tribunal is focusing on a contention that the particular group that you said you belong to was businessmen, but that follows in a page the fact that the Tribunal has set out the category of “Businessmen in Russia” but in the context of your statement that your profile was raised because you had organised anti‑crime meetings. So the question is whether, in this context, the reference to “businessmen” must be read in the way that the Tribunal understood you to be expressing it.
HAYNE J: That, I think, may be the primary decision rather than the Tribunal decision that his Honour is referring to at page 48.
KIRBY J: I see, thank you. Where is the Tribunal decision?
MR DRANICHNIKOV: This is volume 2. Can I assist your Honour ‑ ‑ ‑
HAYNE J: In the application book it is at page 62, Mr Dranichnikov. At page 62, line 22, we find reference to your adviser, in his submission, had suggested that you were a member of a particular social group, namely, “Businessmen in Russia”. The Tribunal goes on to say that:
Even if the Tribunal were to accept this proposition, there is no indication that the persecution is ‘for reasons of’ membership of this group.
MR DRANICHNIKOV: If the Court pleases, I could answer this question. Actually, I…..in there in this conclusion because in the – I lodged the application with additional materials and articles about situation in Russia and I would like to refer – this is the same volume 2 of the court record book – and I would like to refer you to page 106, please. This is the article from the Russian Language Newspaper “Unification” in Sydney and it says it was presented before the Department of Immigration and Tribunal also, “Protest against Lawlessness”. It says in the beginning:
MOSCOW – At the end of last week a meeting took place at the Lubyanka to protest against the inactivity of the authorities in the battle against organised crime.
Next, at 10:
The demonstration was organised by entrepreneurs demanding that decisive measures be taken to ensure everyone’s safety. It was pointed out at the meeting that over the last four years 85 attempted murders have been organised and 47 prominent businessmen have been killed.
This says actually evidence about particular social group, people, entrepreneurs, who criticise publicly at the meeting, or it might be at the meeting with city council and roundtable, or different organisations. They criticised law enforcement authorities.
KIRBY J: Well, in the Tribunal decision, the Tribunal too, like the primary decision‑maker, at 60, line 24, says that:
The applicant claims that at the end of 1993 and the beginning of 1994 there were a number of murders and attempted murders of entrepreneurs.
It goes on to say:
He openly criticised authorities for their lack of effort in solving these crimes; he did this at public meetings.
Then at 62, they say that your adviser in the submission posited that you are:
a member of a particular social group, namely, businessmen in Russia.
So the suggestion is that your adviser narrowed the class, or, in a sense, broadened the class, to businessmen in Russia. It does record that they understood that you were a person who, being a businessman, had openly criticised the authorities for their lack of effort to solve the crimes. Is your complaint that the Tribunal focused only on your being a member of a class of businessmen and did not focus more acutely on the fact that you were not only a businessman, but one who had come to adverse attention of organised crime by criticising it?
MR DRANICHNIKOV: Yes, your Honour, that is correct.
KIRBY J: The Tribunal, as I understand it, blames this on your adviser.
MR DRANICHNIKOV: Yes, your Honour, I can explain. Actually, the adviser – we only had one meeting with the adviser, and the adviser actually was found to be in breach of code of conduct ‑ ‑ ‑
KIRBY J: I think I read that he is a lawyer as well, is he not?
MR DRANICHNIKOV: Yes, your Honour. The inquisitorial role of the Tribunal does not depend whether a representation is or not – this is in our list of authorities, I think, Paramananthan. Justice Merkel explained that the Tribunal must have a look in all material, and even if the transcript would conceal it, our conductor himself explained at the end, last page, he said – in supplementary appeal book, at page 316, at 25. The RRT conductor said:
I shall now go back and reconsider all the information again, with a view to deciding whether you are entitled for a protection visa.
In the last sentence, he said:
I just want to tell you that we are required to do that by law. Is that all clear?
So actually the conductor of the Tribunal was required by the law to consider all information, all facts and evidence presented to them. So we considered – even in volume 2, appeal book, at page 45, the Tribunal give a reason – page 45, volume 2. In the first paragraph it says there:
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.
In the next paragraph, he said:
The Tribunal accepts that the Applicant has a subjective fear of returning to Russia because of the events which he described –
and then the Tribunal said:
the Tribunal must now examine whether the harm feared is grounded in the Convention.
But the Tribunal did not describe it. It just concluded that appellants fear harm as a result of criminal activity by unknown person. So the Tribunal fell into error because it did not consider – did not address central question because it was the central issue in the claim. I myself, it is very hard for any person to appear before a tribunal under such stress with poor language. Even we did not know the Convention at all when we applied first time. We just put all evidence what happened to us. But the Tribunal’s obligation to find all question and put this question. I would like to refer you in my list of authorities, authority No 33, Paramananthan v Minister for Immigration.
KIRBY J: Let me understand this. Is it your contention that insofar as the Tribunal slipped into the identification of the particular social group as businessmen generally, that that is such a large category in a country of multi millions that the identification of the cause of the subjective fear which they accepted in your case became more difficult for you to establish because, if it is businessmen generally, many businessmen who are willing to pay off the Mafia had no fear.
MR DRANICHNIKOV: Yes, that is correct.
KIRBY J: But insofar as they narrow the group to identify the class as businessmen who have stood up and protested and have been stabbed, that that gave you a greater chance of establishing that the subjective fear which the Tribunal accepted was in your case related to a Convention reason.
MR DRANICHNIKOV: Yes, that is correct, your Honour. The Tribunal failed in the construction – failure to exercise jurisdiction and it was explained by her Honour Justice Gaudron in Miah.
KIRBY J: Did you bring any evidence before the Tribunal that this particular social group of businessmen who have stood up have group links or group relationships or give support to each other or have formed a club or group or association, or not?
MR DRANICHNIKOV: Yes, in the supplementary application book this is testimony before the Tribunal. We said that we gathered together, so people they unified by – they believe their actual opinion and outlook. Even we gathered together at a round table in the city council to discuss this matter because we ‑ ‑ ‑
KIRBY J: Where is the evidence of that? Is it referred to by the Tribunal or by the Delegate?
MR DRANICHNIKOV: Yes, this is evidence and testimony at the hearing in the supplementary book.
KIRBY J: Perhaps your wife might be able to find where that is and where the Tribunal referred to it if they did, or the Delegate referred to it. Whilst you go on with your submissions, maybe your wife can look for it and see if she can find it and bring it to your notice and then you can tell us.
MR DRANICHNIKOV: I think it is…..before the Tribunal and ‑ ‑ ‑
KIRBY J: What page?
MR DRANICHNIKOV: Page 307.
GUMMOW J: Yes, you took us to that. Did the Tribunal in its reasons refer to your evidence at 307 and 309?
MR DRANICHNIKOV: Yes, that is correct, your Honour.
GUMMOW J: Did the Tribunal refer to it in their reasons?
MR DRANICHNIKOV: No, because they did not refer with these reasons, your Honour, no. They just even did not ‑ ‑ ‑
HAYNE J: I do not think that is right, Mr Dranichnikov. Page 61 of the white application book, the Tribunal’s reasons ‑ ‑ ‑
MR DRANICHNIKOV: I am sorry, your Honour, what?
HAYNE J: Page 61 of this book, the white application book. That is the book where we have the Tribunal’s reasons. Can you go to page 61 for me, please.
MR DRANICHNIKOV: Page 61, thank you.
HAYNE J: Go to line 25, and we find there reference to your meetings with the mayor attending public meetings. We find reference from line 25 onwards to the sort of things that you were talking about at page 307 of the evidence. Is that not right?
MR DRANICHNIKOV: Yes, your Honour, that is right, but what I would like to refer, this is Tribunal in findings and reasons, but then further the Tribunal in the decision they did not refer to this evidence, because they found that there was not formal involvement of the appellant in this activity but in the reason they said that the reason of persecution because of criminal activities. So they did not refer to this particular evidence, particular reasons of persecution in which we failed to give reasons.
KIRBY J: As I understand it, your complaint is, you referred to this narrower group. That was mentioned by the Delegate. It was mentioned by the Tribunal. But when they came to their decision at page 62 at line 22, they referred to the broader group of “businessmen in Russia” and not to the narrower group, which you say, exposed you to the particular risk. It would have been all right if you were a businessman who shut up, made no protest and paid the mafia but insofar as you stood up, objected, and did not pay the mafia, you were stabbed and you say that is a group, it is a particular group, it is one that identified itself in Vladivostok, met, you have referred to it, the Tribunal mentioned it and did not appear to disbelief it. The Tribunal accepted your subjective fear, and when it came to identifying the cause of that fear, it was very relevant to get the class right.
MR DRANICHNIKOV: Yes, that is correct, your Honour. We did not took the proper class because the class more narrow who is .…. criticised, not just general businessmen in Russia, this is correct, and exact reason of persecution was because of these expression of opinion, so this is before we belonging to this group, so we express this opinion the more narrow group which is invite this connection. Also the Tribunal refer to Ram v Minister in the refer to competition. We know the actual submission to the department and the Tribunal was – we explained that we not been in working competition because our legal company was very little, so it was a very small company, and even Tribunal accepted it, but Tribunal said that this is smallish company. I just would like to refer your Honours to volume 2 of appeal book, page 44, please. Sorry, this is the same reason for Refugee Tribunal, but I have highlighted here. Can I refer to page 44, please, volume 2. So at page 44, line – I think – 21. It says that the Tribunal says:
that the company was a smallish enterprise.
And then it says:
He had joined a number of other business people and had made representations to the Mayor and attended public meetings to highlight plague of corruption and lawlessness.
So the Tribunal erred for specifying a more narrow group, and they took –for not taking into consideration this particular reason of persecution.
GLEESON CJ: In Russia, is it only businesspeople who complain about the inability or unwillingness of the security forces to deal with crime or do people other than businesspeople complain about that?
MR DRANICHNIKOV: Yes, your Honour, it is correct there is another class of people who - I think the country reports says in an article of a journalists where it talked in 1993 and 1994 – even now ‑ ‑ ‑
GLEESON CJ: Well, are journalists a member of this class that you say is the class that should have been considered? Why would it be limited to businesspeople?
MR DRANICHNIKOV: I think in this situation journalists can be a different class. They might be a particular social group.
GLEESON CJ: Why is not the class people who complain about the inability of unwillingness of the security forces to deal with crime, whether they are businesspeople or journalists or members of the clergy?
MR DRANICHNIKOV: Yes, businessmen, I think…..managers, so in supporting group of persons who are managing the company and he has a permanent position. So, we actually have a legal company and we have administrative structure – government structures – so we have been involved in particular everyday discussion with authorities. So the position we had - we could express our opinion and criticise the people for their action. We wanted to protect the rights of the people, not only our life which is most important, but the life – people who was killed and no‑one were found and punished for that and, unfortunately, still the same situation.
KIRBY J: Leaving aside the question of whether the clergy are businessmen, were there clergy in your group in Vladivostok? Did you tell the Tribunal that there were clergy or ‑ ‑ ‑
MR DRANICHNIKOV: I did not tell the Tribunal ‑ ‑ ‑
KIRBY J: No.
GLEESON CJ: Were there journalists in the group?
MR DRANICHNIKOV: Yes, I said that…..is more - they can more be affected because…..a lot of people and we can see from the articles that it was 350 people in only half a year, so they were killed, just killed, and not all of them been killed for – of course I agree with you that some people were killed for money, but the…..group – particular social group. Some people were opposed to the government, so they been killed for this particular reason because the expression, their view on life and the position to the government structure and they had no protection under the law.
KIRBY J: Forgive me for not knowing this. It is probably in the material somewhere, but did you have legal qualifications? Your business was legal and real estate, as I understand it.
MR DRANICHNIKOV: Yes, that is right, your Honour.
KIRBY J: Is it described in the reasons as to your legal qualifications?
MR DRANICHNIKOV: Yes, we have a legal company and in this case the Tribunal asked the question about why I have mechanical background and then have become manager of the company. I explained to them in the transcription – at the hearing explained that I had permanent position before. So I worked as a chief mechanical engineer in a construction company and ‑ ‑ ‑
KIRBY J: That is a rather odd combination in this country.
MR DRANICHNIKOV: Yes, but after it we had to change – after reformation in the country we had to change our life, so – and I be invited in another company with a legal background and have been working as a manager of the department to this company and my wife was working also in this company as a manager of another department. So we had opportunity to – we actually had been wanting to prepare better quality and provide better quality to the customers and protect their right because we were not agree with the policy of this company and we set up our own company. We had a solicitor who worked for our company and also it was explained before the Tribunal that another solicitor who is called notary – a public notary in Russia – but a very high qualification as a solicitor here and this solicitor was signing the agreements and helped us to prepare and protect the Russian people to sign proper documents, check these documents, and it was evidence before the Tribunal. This is supplementary application book, page 304, please.
KIRBY J: So this was a sort of joint enterprise in real estate and law with a notary as a member, who had legal qualifications, you and your wife, and no doubt somebody who knew something about real estate, a joint enterprise.
MR DRANICHNIKOV: Yes.
KIRBY J: I think we are going that way in Australia in some States too. It used not to happen here.
MR DRANICHNIKOV: So my wife, when attempt happened, we decide to fight inside so we trusted to go. My wife went to study the law and she ‑ ‑ ‑
KIRBY J: Anyway, I think we are getting a bit away from the point. You have a limited basis on which you are before this Court ‑ ‑ ‑
MR DRANICHNIKOV: Yes, that is correct.
KIRBY J: ‑ ‑ ‑ and the limited basis was that the Tribunal made a mistake which also, you contend, was a constructive failure to exercise its jurisdiction by redefining and broadening the category of the particular social group which you were asserting and you say that that deprived you of the chance of having the matter correctly decided on the crucial issue on which you lost, namely, the issue of the cause of your fear, “by reason of”.
MR DRANICHNIKOV: Yes, your Honour.
KIRBY J: Well, that is all it is really, is it not? It is a short point. It is either good or bad.
MR DRANICHNIKOV: Yes, I understand, that also like construction, error to exercise jurisdiction, which was explained I think. That is correct.
HAYNE J: Could I, Mr Dranichnikov, see if I can understand a way in which the Tribunal seems to have approached your case. Have you got the Tribunal decision in front of you?
MR DRANICHNIKOV: Yes.
HAYNE J: There seem to me to be five steps in what you were saying the problem was. The steps are, I think, these. One, “I was a businessman or entrepreneur in Vladivostok”. Two, “I complained about attacks on entrepreneurs – not just lawlessness. I complained about attacks on entrepreneurs” – see page 61, line 25. Step three is, “I was attacked”. Step four is, “I sought help from the authorities and either they could not or would not help me”. Step five in the argument seems to be, “If I go back, I cannot get help protecting me from attacks on entrepreneurs”. Now, is that the essence of what you were saying to the Tribunal?
MR DRANICHNIKOV: Yes. Just second question, your Honour, can I say that attempt – only I criticise attempt only businessmen.
CALLINAN J: Was there a further ingredient that you could actually identify the class of business people who were attacked? If you went to Vladivostok, you could name 10, 20, 5, whatever number it is, of people who were actually attacked in the same way as you were, that it was a definable, identifiable group of people? All businessmen, all business people, is that right?
MR DRANICHNIKOV: Your Honour, actually I refer today to supplementary appeal record book and the testimony before the Tribunal. The Tribunal was aware about reason, not only criticising because of attempt on businessmen, but also we refer to criticising about protect rights of people in dealing with the authorities.
KIRBY J: Yes, we know you were concerned about fellow citizens, but so far as this case is concerned we are focusing on a particular social group and the question was whether or not before the Tribunal you, by identifying the meetings and so on, indicated that there was a particular group of businessmen who were being targeted by these acts of violence.
MR DRANICHNIKOV: Yes, that is correct.
KIRBY J: And that that is page 61 of the transcript?
HAYNE J: Page 61 of the decision, the Tribunal’s decision, page 61 line 26. See also page 46, lines 30 to 31 of the primary decision.
MR DRANICHNIKOV: Sorry, your Honour, may I ask you what page you are referring to? What book you referring?
HAYNE J: This one.
MR DRANICHNIKOV: This one, okay. And page ‑ ‑ ‑?
HAYNE J: Page 61, line 26.
MR DRANICHNIKOV: Page 61, line 26.
HAYNE J:
trying to stamp out the attacks on entrepreneurs ‑ ‑ ‑
MR DRANICHNIKOV: Yes, this is actually Tribunal’s expression, Tribunal’s conclusion.
HAYNE J: Yes, yes, I understand that.
MR DRANICHNIKOV: Yes, that is right, but the evidence before Tribunal was different, because they did not took all reasons for persecution, the crucial reasons, because the crucial reasons was because of expression of this opinion, a more narrow group, not all businessman ‑ ‑ ‑
HAYNE J: I understand that.
MR DRANICHNIKOV: ‑ ‑ ‑not all businessmen in Russia, people who criticised.
CALLINAN J: People who went to meetings and did things of that kind.
MR DRANICHNIKOV: Yes, that is right.
CALLINAN J: Was there any evidence about how many people went to the meetings from you?
MR DRANICHNIKOV: Yes there is.
GUMMOW J: There is the meeting with the mayor.
MR DRANICHNIKOV: It was actually managers of the company. I think they had a big company, they had only 22 agencies, one company had 22 agencies like our company, small one, and they have all these managers who had been attending this meeting and we have been involved in this procedure and some association and we expressed our opinion at the round table in the committee.
GUMMOW J: How many at the round table?
MR DRANICHNIKOV: I think it could be 30 people. They did not ask the question, “How many?”, but I refer please to page 307.
CALLINAN J: Which book?
MR DRANICHNIKOV: Supplementary book please, the green one.
CALLINAN J: Page 307.
MR DRANICHNIKOV: And it is at line 6. I said:
We, entrepreneurs, were invited to take part in the discussions about our operation.
And then at line 9:
The discussions were initiated of course by the Executive Committee and also by the managers of companies.
So it is not one ‑ ‑ ‑
GLEESON CJ: Just before you go on with that, going back to line 6:
We . . . were invited to take part in the discussions about our operation.
Invited by whom?
MR DRANICHNIKOV: This is the committee we discussed our operation, our business, in the city council.
GLEESON CJ: The council invited you?
MR DRANICHNIKOV: Yes, that is right.
GLEESON CJ: And how did the council choose the people who were invited?
MR DRANICHNIKOV: Especially from legal company we were represented, so entrepreneurs from legal company, the same sort of company, so, managers, owners ‑ ‑ ‑
GLEESON CJ: I understand that, but the people who turned up at this round table meeting at the council were there because the council invited them to come?
MR DRANICHNIKOV: Yes, that is correct.
GLEESON CJ: Now, on what basis were they chosen or invited? Who received the invitations? Who got invited?
MR DRANICHNIKOV: Just before we made request to the committee we were wanting to discuss the issues in the matter concerning – our concerns about operation of businesses and procedures, so, in this case, we request them, and they invited us because it was initiative brought first by us and then them. I think they wanted also to discuss these matters, but indeed we found that they were not reluctant to ask it in this way.
GLEESON CJ: Well you, in line 10, said:
The discussions were initiated of course by the Executive Committee ‑ ‑ ‑
That is the executive committee of the council, is it?
MR DRANICHNIKOV: Yes, that is right.
GLEESON CJ:
and also by the managers of companies.
So, people at a certain level.
MR DRANICHNIKOV: Yes, that is correct. Also, I would like to say that not all people who was invited, criticised. So in this case some people. Why I am telling you because…..more narrow group. It is not broadly all businessmen in Russia, even businessmen who was there, but some people were concerned. They were also criticised in trying to change the situation.
GLEESON CJ: Well, businessmen who were adversely affected by the conduct were brought together by the council and some of them criticised the authorities and some of them did not criticise the authorities. You say the ones who criticised the authorities constitute a particular social group?
MR DRANICHNIKOV: I think the more concerned people were…..managers who criticised ‑ the actual initiative of ours was gather together and discuss the issues - not all, of course. Some people were afraid or could just hold their opinion but in some meetings we ‑ in this particular meeting and in later meetings some people were criticised and they could not ‑ many people were concerned because they make initiative and stood before and opposed these…..
KIRBY J: Could it be said that this is simply the consequence of the breakdown of the proper enforcement of the criminal law in the Russian Federation and that you were just one of thousands, probably hundreds of thousands, of people who were complaining as best you could about the breakdown of criminal law, because what had happened to you was just an out‑and‑out crime, somebody stabbing you.
MR DRANICHNIKOV: Yes, every person has different reason for persecution, your Honour. Of course some people can be persecuted for different reasons but in my particular case the refugee case should be considered on particular evidence concerning this person. So in my particular case the Tribunal failed….take a look at this particular narrow group…..criticised, special group, and I was persecuted particularly for this reason. So because in first claim even in Department of Immigration expresses that I was not in competition with others. So the company was smallish and I just managed the company, and we tried to provide better service to our customers and we wanted to protect their rights; so the reason that it was openly…..have political outlook on this matter. This actually ‑ volume 2 appeal record book ‑ so this is page 156, if the Court please. May I refer line 14. So this is answers to questions 36, 37, 38, 39 and 40 to the application for protection visa to the Department of Immigration and it was also before the Tribunal. At line 14 it says:
The firm, which I managed, was not in competition with others. Its only a small firm, employing only 8 people and had small turnover of service delivery. I am reliable, honest family man, who believes in God and tries to live according to God’s commandments. My only possible “crime” was that I spoke openly and directly against unlawfulness of security authorities.
KIRBY J: What is this document at 155 and 156? It says, “Answers to Questions”.
MR DRANICHNIKOV: Yes, that is correct.
KIRBY J: Is that answers that you prepared? Was that for the Delegate of the Minister or was that for the Tribunal?
MR DRANICHNIKOV: This actually was attached to the initial application to the Delegate of the Minister of Department of Immigration. These documents were under section 418 of the Migration Act should be given to the Tribunal to consider all this evidence according to section 424. The Tribunal must have regard to all information before the Tribunal, so it has obliged the Tribunal to give consideration, all facts in evidence on its merits of review. So they should give proper consideration under section 420 of the Act. The Tribunal failed to do it, we ‑ ‑ ‑
GLEESON CJ: I think we understand that point. Is there anything further you want to say about it?
MR DRANICHNIKOV: The Tribunal actually was – first of all, the transcript of the Tribunal says that we get evidence that there was – after we arrived in Australia my wife’s cousin was killed in Vladivostok. He used to work in our company and we thought and we envisaged this persecution of our family too. The respondent refers this article in his submission as a businessman who was killed in Russia, a genuine businessman, but we referred this particular matter to be issued because we consider it is persecution. This is actually – I lodged the affidavit on 30 January this year and the annexure – this is small affidavit, only one annexure, and this annexure, this article, was before the Tribunal. At the end it says:
NOTE: The victim described in the above article is Olga Dranishnikova’s first cousin. Though it is obvious from the article who the killers were, no effort was made by the police to find the guilty parties.
But we can have a look. They were these people.
It happened on 28 September, near the “Katerina” restaurant, which is owned by Vladimir Petrakov, a known Vladivostok businessman.
But I think this businessman is criminal…..who is hoping – close to the administration of the radio in the city of Vladivostok.
On that day, from about midday, Petrakov was celebrating his birthday with friends. There is a car park next to the restaurant which also belongs to Petrakov.
At around 23 hours in the evening, Vladlen Markovich Makarov –
who is first cousin of my wife –
born in 1966 –
He used to work in our company as a driver. Actually, we invited him from – he lived nearby and he was killed by this accident. It says that:
As Makarov was passing two parking lot guards, they called out to him: “Where are you taking the watermelon?
It is not…..person then was invited in these premises but then when interrupting four men and been beaten him an hour. We can consider this persecution in our family. It was before the Tribunal and we hope that we can return for a funeral because this is our relative. We consider this is persecution of my group of the…..narrow group or particular social group who has openly criticised law enforcement ‑ ‑ ‑
CALLINAN J: Mr Dranichnikov, can I just ask you a question, and, first of all, I want to draw your attention to something. If you go to page 191 of volume 4 of the blue books, which is the decision of the Full Court of the Federal Court, and at about line 23, the Full Court quotes from the decision of the Delegate of the Minister. It seems to me, I must say, on reading that, that the Delegate understood that you sought to put yourself in a more narrow category than the Tribunal had it – that you were seeking to put yourself into – because the Delegate’s decision emphasises that you were part of:
a particular social group of “Entrepreneurs” ‑ ‑ ‑
MR DRANICHNIKOV: I am sorry, your Honour, what page are you ‑ ‑ ‑
CALLINAN J: Page 191, volume 4.
MR DRANICHNIKOV: Page 191.
CALLINAN J: It is just a convenient place to find the relevant part of the Delegate’s decision. The Delegate seems to have been in no doubt that you were looking at a narrower class. Now, by contrast with that, if you go to the page of the decision to which his Honour Justice Hayne has drawn your attention – I have been looking at volume 2 in the blue books, page 45, line 22. According to the Tribunal, your adviser there:
had posited in his submission that the Applicant was a member of a particular social group, namely, businessmen in Russia.
Now, did you depart from the case you put to the Delegate? Was it not always your case that you were part of a narrower group of businessmen, businessmen, in effect, in protest, and not just any businessmen?
MR DRANICHNIKOV: Yes, your Honour, it was from the beginning, so ‑ ‑ ‑
CALLINAN J: And remained that way in the Tribunal.
MR DRANICHNIKOV: Yes, that is correct.
CALLINAN J: I do not know why you would depart from it in the Tribunal. I cannot think of any reason why you would, and the Delegate seems to have been under no misapprehension as to what you were putting.
MR DRANICHNIKOV: Yes. We consider the Delegate also, he did not consider the crucial reasons for persecution – the issue of persecution. He did not put the right question.
CALLINAN J: Even if you were to succeed here, it may be that the matter would have to go back. The Tribunal never decided whether your fear was well‑founded. The Tribunal accepted that you had a fear, but that you were not a member of a particular social group, but made no finding about whether your fear was well‑founded in any event. I think that is clearly what happened.
MR DRANICHNIKOV: Yes, the Tribunal actually, by not referring to the Convention reason, and they did not consider my theory – they said that, that is right, they said that it is “subjective fear”.
CALLINAN J: It is part of your case here that the Tribunal misstated what your case was to it. Your case to it was the same as your case had been to the Delegate, that you were a member of a particular, narrow section of businessmen, businessmen in protest, as it were.
MR DRANICHNIKOV: Yes, that is correct, your Honour. Yes, this is another ground, because the reason of persecution could be…. So we can see that, very often, the criticising of law enforcement authority is consistent with political opinion. I understand this is particular social group, but they could have political outlook in particulars in some matters – in the present matters. It will be second ground, even, for consideration under Convention reasons.
GLEESON CJ: Yes, I think we understand that point. Now, does that cover what you want to say to us?
MR DRANICHNIKOV: I would like to refer that Tribunal has inquisitorial function under section 420 and in the matter Paramananthan, authority No 33, Justice Merkel concluded that ‑ it says about Administrative Appeals Tribunal, but then Justice Merkel explained about Refugee Review Tribunal that it has in section 420:
However, ultimately the RRT is under a duty to fulfil its statutory obligation to “review the decision” before it and to do so according to s 420(2), which requires it to act according to the “merits of the case”. Unlike an adversarial proceeding, parties do not appear and put a case, as such, to the RRT. As stated above, the RRT is required to determine whether it is “satisfied” that the applicant is a person to whom Australia has protection obligations –
and the Tribunal has to have in mind the Convention and reason for persecution under Convention. It should take into consideration all facts, evidence, and must have regard to all information under section 424, and even be obliged to make some inquiries in certain cases. Justice Merkel said that:
In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues raised by the material and evidence before it.
So we can see in this ‑ ‑ ‑
KIRBY J: Could you give me the reference to that paragraph again, the Full Court decision.
MR DRANICHNIKOV: Yes. This is my list of authority, 33, my list of authority.
KIRBY J: Yes, what paragraph?
MR DRANICHNIKOV: Page 63. I would like to refer to my list of authority. This is 94 FCR at 63 and 65, Paramananthan v Minister for Immigration and Multicultural Affairs (1998). I read paragraphs B, D E and F at page 63. On page 64 it says about “constructive failure to exercise its jurisdiction”, ‑ fails to apply correct legal question. At page 64, it is I think fifth paragraph ‑ ‑ ‑
KIRBY J: That will be enough, I can find that.
MR DRANICHNIKOV: Also, in Minister; Ex parte Miah, it was explained classic issues to identify the constructive failure to exercise jurisdiction.
KIRBY J: If you succeed in the point that you have just put to us, then your contention is that you should have succeeded in the so called “appeal” to the Federal Court and in the further appeal to the Full Court of the Federal Court and you should have an order setting the decision aside and requiring the Tribunal to reconsider your case according to law, and on that footing you would not need the constitutional writ because all the relief would be given to you in the appeal. Is that correct? There is nothing further that you would need from the constitutional writ.
MR DRANICHNIKOV: Yes, I think that is correct, because if the matter would be set aside and referred to the Tribunal and Tribunal will consider their question of this particular social group ‑ ‑ ‑
KIRBY J: And that is what you want? That is the relief that you want from this Court? I am not trying to trap you; I am just trying to find out what relief you want. My understanding is that the relief you want is that the Tribunal should go back, consider your case, but consider it on the narrow basis on which you put it and that they have not done that yet, but that is what you want them to do and you can get that relief if you succeed in the appeal. Is that correct?
MR DRANICHNIKOV: I think you are partly correct, your Honour, but also I would like the Tribunal, and particularly this ground and also according to the law, because the Tribunal looked matter on the merits of review and they should take into consideration under section 420 all relevant evidence and information before it. So we have even second ground, political opinion, and we can succeed in Tribunal on both grounds. And also, my wife was making attempt ‑ ‑ ‑
KIRBY J: But I do not think that is a matter that has been referred to us. However, if the decision of the Tribunal was set aside, it would be up to the Tribunal to decide, in accordance with its procedures, whether it would allow you to enlarge or change or re‑present your case; that would be up to
them. All we would be doing would be setting aside their order for error of law.
MR DRANICHNIKOV: Yes, that is correct.
KIRBY J: Well, that is all you need really at the moment.
MR DRANICHNIKOV: Yes, in my submission, I would like to ask you to set aside these orders of the Full Court, previous single judge and to return the matter back to the Tribunal to consider it in accordance with reason and in accordance with the law. It would be fair.
GLEESON CJ: Now, one of the procedural matters, both of the applications that you have were commenced before 1 October 2001?
MR DRANICHNIKOV: Yes, that is correct.
GLEESON CJ: Which is why we are calling you by your name.
MR DRANICHNIKOV: In June 2000, B96. The reasons actually shows even in the first instance before single judge we asked even concealed our names before the court, because we were afraid, and even raised this question before the Full Court, but I was declined.
GLEESON CJ: I am just suggesting to you, for your comment if you wish to make any, that because your applications were commenced before 1 October 2001, section 91X has nothing to do with the matter.
MR DRANICHNIKOV: I am sorry.
GLEESON CJ: Is there anything else you want to put?
MR DRANICHNIKOV: I think I would like the respondent to take and after that might I have the opportunity, if the Court pleases.
GLEESON CJ: Thank you. Yes, Mr Logan.
MR LOGAN: As to the last-mentioned point about 91X, we would not dissent from the point of view that it does not apply to these proceedings, because they commenced before the commencement of that item. We have set out in our outline on page 7 in a footnote the text of the transitional provision in the amending legislation and the commencement date that is material is as identified by your Honour the Chief Justice.
GUMMOW J: Sorry, whereabouts in your submissions? Footnote ‑ ‑ ‑
MR LOGAN: Page 7 and then in the footnote at the bottom, footnote 5.
KIRBY J: Does that refer to the provision of the Migration Amendment legislation of 2001 that ‑ ‑ ‑
MR LOGAN: No 6.
KIRBY J: ‑ ‑ ‑the operation of section 91X that proceedings commenced after a certain date?
MR LOGAN: Yes, if the Court pleases.
KIRBY J: When was the constitutional proceeding commenced in this Court?
GLEESON CJ: June 2001 in an affidavit in support of ‑ ‑ ‑
MR LOGAN: Order nisi application 12 June 2001, and the special leave application was in December 2000.
GUMMOW J: And the commencement date of 91X?
MR LOGAN: Is 1 October 2001.
GUMMOW J: Where do we find that?
MR LOGAN: Where I found it eventually was in the table in the back of the consolidated legislation.
GUMMOW J: Yes, that is right. So it is 1 October 2001?
MR LOGAN: Yes.
GUMMOW J: Thank you.
KIRBY J: It is a bit misleading, because 91X on its face just appears to be directed in the present tense to various courts, including this Court.
MR LOGAN: Yes, the trick is ‑ ‑ ‑
KIRBY J: You have to search somehow in transitional provisions to find out that it does not mean what it says on its face.
MR LOGAN: That is the trick, yes. Might we commence, your Honours, on the two matters by endeavouring just to chart through the course of the administrative decision‑making process from the time when the application was made to the Minister for a protection visa just to examine the content of what was put forward by way of the claim for a protection visa of the kind contemplated by section 36 of the Migration Act.
The visa application one finds in the application book, the white‑covered book. It is reproduced elsewhere but conveniently at page 12 in the application book. Then substantively, if one goes to page 27, firstly, one sees a reference to “see submission attached”, line 25. Then over the page to “see submission attached” again in two places on page 28, and the like page 29. That attached submission – and what unfortunately has been cut off on the left‑hand margin in the reproduction there are questions 36, 37, 38, 39 and 40. The intent, it seems, of Mr Dranichnikov is then that one looks to page 30 and following which is the attached submission.
KIRBY J: This is the document that was at 507, or some other page that we were taken to. I am sorry, 155.
MR LOGAN: Yes, it is reproduced elsewhere.
KIRBY J: It is reproduced several times.
MR LOGAN: Yes. Might we just pause then to look to some of the content of the attached submission. One will note a reference to an article in “Forbes” magazine, line 5 ‑ we will come to that in a moment if we may please ‑ in which there is reference to a:
direct connection between the politicians and leaders of our country –
this is what is being put up.
KIRBY J: Where is this?
MR LOGAN: Line 5 on page 30 in the application book. It is the white‑covered one.
KIRBY J: Yes. One could, I suppose, take note that “Forbes” magazine is a magazine of businessmen and entrepreneurs.
MR LOGAN: It is a rather general article.
CALLINAN J: I am sorry. Whereabouts is this, Mr Logan?
MR LOGAN: Yes, I was reading from line 5 on page 30.
KIRBY J: This is the white one?
MR LOGAN: The white one, yes. Then there is reference to a broadcast on SBS, line 15:
“part of Russian government is part of the criminal world”.
And the comment:
This broadcast has shaken me, and I related it to the incident that happened to me.
One sees that according to the submission it concerns the killing of a TV producer, a Mr Listiev. One then sees at line 30 a reference to his appointment as general manager of this company, Starling, and coming down to about line 35:
As someone who belongs to the social group of entrepreneurs ‑ ‑ ‑
HAYNE J: That is to be linked with what precedes it, and the reference to “attempted murders of entrepreneurs”, is it not?
MR LOGAN: Quite, yes.
it worried me extremely, as could see myself as a target. I openly criticised the work of the law authorities at meetings and organised protest gatherings. I could not stay uninvolved, when people were killed, and no one was punished for it.
At the bottom of the page then there is reference to the attack.
KIRBY J: So far all of that is consistent with Justice Callinan’s class of businessmen in protest.
CALLINAN J: Indeed, if you look at page 31, line 17:
My only possible “crime” was that I spoke openly and directly against unlawfulness ‑ ‑ ‑
MR LOGAN: Your Honour is referring to line 15 or so on page 31?
CALLINAN J: Yes.
MR LOGAN: Yes.
GLEESON CJ: Now, is the “incident” referred to on line 28 on page 30 that of 15 February, referred to at the bottom of page 30? That is the incident, is it?
MR LOGAN: Yes, it is. That is when Mr Dranichnikov was attacked, and that would seem to be the incident. It is the only one of particular specific application to him.
CALLINAN J: Mr Logan, do you accept that the Tribunal misstated the applicant’s case to it?
MR LOGAN: No. I will come to that in a moment. If I may do that, though, please, by just looking to the way the application evolves through the administrative review process. Ultimately, the point will be that when one looks to the letter that goes to the Tribunal from the adviser, the Tribunal has not misapprehended the case put, but rather the reasons are responsive to the case as put then.
CALLINAN J: But all this material was before the Tribunal. The Tribunal gets the file. Could you draw my attention to the letter the adviser sent?
GUMMOW J: Page 225. The letter is at 225.
MR LOGAN: Yes, the letter from Mr Drakopoulos.
HAYNE J: And 226, lines 22 and following are perhaps of some significance to this point, are they not?
CALLINAN J: And that is not the whole case that is presented. That is merely a summary, is it not, by the solicitors? All of the material that was before the Delegate is before the Tribunal. I really do not understand how the Tribunal could have posited the case – and that was the word that was used – as broadly as it did. It just does not seem to have been put as broadly as that.
MR LOGAN: The way the ‑ ‑ ‑
GUMMOW J: Look at page 226, line 22.
KIRBY J: Which line?
GUMMOW J: Line 22. The sentence beginning, “Our understanding of the situation”.
MR LOGAN: Line 25: “In recent years businessmen ‑ ‑ ‑
CALLINAN J: No.
GUMMOW J: No. That is the point.
HAYNE J: That is convenient. The inconvenient bits you are being drawn to.
GLEESON CJ: Why do you not read from line 22 to line 27?
KIRBY J: Can we offer you a textacolour?
MR LOGAN:
By virtue of his businessman status and his stance against crime ‑ ‑ ‑
GLEESON CJ: Can you read from line 22 to line 27 on page 226. You have that?
MR LOGAN: Yes, I have that. If one goes there, one sees this:
Our understanding of the situation would indicate that Mr Dranichnikov would not be a potential target if he was not affiliated to that group of legitimate business people who pose a threat to organised crime.
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 ‑ ‑ ‑
CALLINAN J: “Actively involved in the pursuit of justice”.
MR LOGAN: Who was – yes:
who was also actively involved in the pursuit of justice.
CALLINAN J: Well, I must say, I regard the Tribunal’s statement of the case as inaccurate.
GUMMOW J: And the next sentence?
MR LOGAN: Yes:
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.
CALLINAN J: Mr Logan, how do you distinguish this case from Khawar?
MR LOGAN: Yes. Khawar is the ‑ ‑ ‑
CALLINAN J: Minister for Immigration v Khawar (2002) 76 ALJR 667.
MR LOGAN: Unlike in Khawar, in this case, the Tribunal has assumed a particular social group as it understood in favour of an applicant, rather than not make any finding or inquiry at all about that.
CALLINAN J: No, but Khawar provides the definitions of what is capable of constituting a social group. Take what was said, for example, by the Chief Justice at paragraph [26], page 671, that:
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 –
and so on. The applicant here was accepted by the Tribunal as a credible witness. There was violence against him. He gave evidence – credible evidence, apparently – that that violence could be related to his participation in public protests as a businessman. The state authorities effectively tolerated or condoned that by refusing to do anything about it and, indeed, refusing even to investigate a very dangerous assault upon him. It seems to me that that is indistinguishable from Khawar. And that is not the only statement to that effect – a number of other statements by judges in the majority to a similar effect.
MR LOGAN: Your Honour, the ‑ ‑ ‑
KIRBY J: And, I might add, this is a much more narrowly definable group than all of the women of Pakistan were, subject to the decision in Khawar.
CALLINAN J: You do not need any floodgates here. It is strictly extreme.
MR LOGAN: Yes. It was open, though, in our submission, for the Tribunal to look to and assume that there is a particular social group of businessmen, not all of whom are subjected to violence, but some are, those who come to attention, for whatever reason, a competitor or complaint even.
KIRBY J: But is not that the point you make very well in your written submissions, that it is very important to get your class right because once you get that right then your decision on the steps that follow, “by reason of” and so on, is addressed to the correct statutory and Convention reason but also is the wider you have the class the more likely it is that you cannot prove the causative connection.
MR LOGAN: Quite, yes.
KIRBY J: So that if you have just businessmen and it is just that class, then that is a very wide class indeed and it would be difficult to say businessman generally were subject to persecution.
MR LOGAN: Yes.
CALLINAN J: Here, on any view, it is not as wide as that. It is non‑corrupt businessmen.
KIRBY J: Who stand up and are businessmen in protest.
CALLINAN J: Well, three classes, perhaps: businessmen, non‑corrupt businessmen, non‑corrupt businessmen who protest. There might be a non‑corrupt group who just do not protest. But that was the point here. He relies upon his public profile. It is a narrow class and it is a class within, at least, three possible classes.
MR LOGAN: Yes. Of course, the Tribunal was obliged just to look to a particular social group as a concept from the Refugee Convention as it was put forward on the material before it.
KIRBY J: You say that ‑ ‑ ‑
GUMMOW J: That brings us back to the letter, that sort of thing.
MR LOGAN: It does, rather, yes, with respect, and to the way ‑ ‑ ‑
GUMMOW J: Which is not the great weapon in your favour you seem to think.
MR LOGAN: It is one of those which, in our submission, rather cuts a number of different ways, according to the way in which one reads it as a matter of judgment.
CALLINAN J: You do not only read the letter, though. I keep on putting that to you. You read his evidence to the Delegate which puts beyond doubt, either taken with the letter or taken on its own, but taken with the letter it puts beyond doubt that he was seeking to place himself in a much smaller and narrower class than the Tribunal said he was. Now, assume that to be so for present purposes – you may have submissions to the contrary. Assuming that to be so, it seems plain, does it not, that the Tribunal misapprehended the nature of his case and I might say I cannot find anything in the reasons of Justice Kiefel or in the Full Federal Court which really deal with any point of that kind. Indeed, the substantial argument does not seem to have been fully dealt with by the Full Federal Court at all. It is just passed over.
MR LOGAN: The Full Federal Court was faced with a disparate number of issues and that which has emerged here was but one of those and certainly did not receive any detailed attention at all in the reasons. I would not for one moment suggest that.
CALLINAN J: In any event, to come back to the basic point which I am putting to you, make the assumption at this stage that the Tribunal did misapprehend the case that was being presented to it. If you make that assumption, how can the decision possibly stand?
MR LOGAN: It depends then, your Honour, whether it is or is not an error within jurisdiction as opposed to making a factual judgment.
GUMMOW J: It would be a constructive failure to exercise jurisdiction. It would be a classic case, would it not?
MR LOGAN: That would be the way it would go, yes.
KIRBY J: That is the way the applicant puts it in the constitutional proceedings.
MR LOGAN: Yes, it would have to be on the basis that necessarily the concept of particular social group admitted of what was raised in the material and the Tribunal just failed to appreciate that what was raised in the material, in the letter, for example, directed one in a very specific way to one conclusion about what in law was the particular social group and the Tribunal just misdirected itself completely as to what was raised on the facts being a particular social group in law.
KIRBY J: But even your own submissions make the point that it is very important to get the definition of the class right and I thought that was a very telling point in your submissions.
MR LOGAN: Yes, it is a telling point in favour of an applicant here and we cannot walk away from that. The English Court of Appeal recently made a comment concerning the nature of the process involved in the decision or identification of a particular social group in a case which came out shortly after Khawar, which is Skenderaj [2002] 4 All ER 555. The leading judgment is that of Lord Justice Auld and at page 561 in paragraph 18 h:
Whether there is a particular social group of which a claimant is a member is essentially a mixed question of fact, policy and judgment in the context of the society in which it is claimed to exist.
GUMMOW J: It is a question of law, with all respect.
MR LOGAN: It is two things.
GUMMOW J: And it is a jurisdictional question.
MR LOGAN: What amounts to a particular social group is a concept of law imported from the Convention but how one identifies it, we submit, is still a question of fact and judgment in the end.
GUMMOW J: What is the context in which the Court of Appeal is dealing with this? In other words, what is the administrative review structure in which the Court of Appeal is dealing? You read us a passage from the middle of a Court of Appeal judgment in England. They talk, it seems to me, about “particular social group” in a way that does not seem to me at first blush to be right. Maybe the answer is the particular prism at which they were looking into the question through their administrative law structure which may not be as tightly drawn as ours.
MR LOGAN: Yes.
GUMMOW J: Section 75(v) concentrates ‑ ‑ ‑
MR LOGAN: That is certainly right with respect, yes.
GLEESON CJ: What do you take from this decision?
MR LOGAN: What we take from this is that inherently involved in this decision ‑ the Tribunal does not really discuss, other than by reference, inferentially, to Ram ‑ what amounts to a particular social group ‑ but rather makes a judgment or an assumption in favour of ‑ so it thinks ‑ the applicant as to the particular social group put forward, businessmen in Russia. Involved in that assumption, we submit, is a value judgment or a factual inquiry which was ‑ ‑ ‑
KIRBY J: You are saying in favour, but as you correctly point out in your written submissions it is in favour in that it gets him into a social group but it is against him when you come to deciding whether he fulfils the other requirements, particularly by reason of, because the larger the group the less likely it is that it is by reason of him being a businessman that he has the well‑founded fear.
MR LOGAN: Yes.
KIRBY J: And that is a point you make very tellingly in your written submissions, and that is why what they did by misstating the category helped him to some extent but then it hindered him in the next step, which is the step on which he lost.
MR LOGAN: Yes.
KIRBY J: They found he was honest. They found he had fear. They found he was in a particular social group, and then he lost on the third step.
MR LOGAN: Yes. One does not, in our submission, find an error of law just in an ex poste facto construct of a case as presented, but rather in this instance it would have to be in effect, we submit, the ‑ and the only really ‑ social group as put forward on the material before this decision‑maker.
GLEESON CJ: I am not sure where this leads in the ultimate resolution of the case, but if you go back to page 226, lines 25 to 30, the author of that letter has come to grips, or attempted to come to grips with this problem. As I understand it, the approach that the author of that letter is taking is this: the reason this man is at risk is because he has taken a stand against crime. But there is a difficulty saying that everybody who takes a stand against crime is a member of a particular social group. The solution to the difficulty in this case is that he is a businessman who has taken a stand against crime. That is why the author refers to “that specific group of people known as ‘businessmen’” Now, whether it is right or wrong, whether it is for you or against you, the way the case is being put is pretty clear, is it not?
MR LOGAN: It is clear enough that he is a ‑ ‑ ‑
GLEESON CJ: His status as a businessman is being used to narrow the class that would otherwise be constituted of what might be called “troublemakers”.
MR LOGAN: That is, with respect, one view of it. Another view is this is a businessman who has complained about attacks on businessmen and the source of the concern, the social group, the subject of the concern, is attacks on businessmen.
GLEESON CJ: But the author of this letter is using his status as a businessman to narrow what would otherwise be a class of people being those who take a stand against crime.
MR LOGAN: It is, with respect, the author of the letter having something of an each‑way bet of imprecision.
GLEESON CJ: Maybe he is. He is entitled to, presumably. Let it be supposed that you could not say that businessmen were a ‑ sorry, the Tribunal does say, does it not ‑ you say that businessmen are a particular social group.
MR LOGAN: Can be.
GLEESON CJ: Can be of a particular social group.
MR LOGAN: Yes. Can be.
GLEESON CJ: And you say it is possible, theoretically at least, although the experience of the kulaks in Russia would indicate that it is not merely theoretical ‑ ‑ ‑
MR LOGAN: Quite.
GLEESON CJ: ‑ ‑ ‑ that people could be persecuted for being businessmen. But what the author of the letter here appears to have done is to say that this man falls within the intersection of two classes. He is a businessman and he is a person who has taken a stand against crime. The question is whether or not businessmen who take a stand against crime are a particular social group and ‑ and this I understood to be the basis on which the Tribunal decided the case ‑ whether what is involved is persecution by reason of membership of that particular social group.
MR LOGAN: Yes.
GLEESON CJ: Bearing always in mind the problem involved in constructing a particular social group out of the very act of persecution.
MR LOGAN: Yes, which is something one cannot do in terms of our jurisprudence. Might we answer that this way by reference to Lord Hoffmann’s speech in the Shah v Islam Case, where His Lordship gives an example by reference to Jewish businessmen.
GLEESON CJ: Well, that was the decision which was followed by this Court in Khawar in relation to Pakistani women, was it not?
MR LOGAN: Yes. It is an example though, we submit, that might be apt. The report is (1999) 2 AC 629, the particular passage in Lord Hoffmann’s speech, 653G, and we use it as an analogy in the sense that here in Mr Dranichnikov’s case, one cannot say by whom the particular assault was perpetrated ‑ it is anonymous ‑ so that one might view it as a case put forward on the basis of non-state persecution, or it is capable of being so regarded, an anonymous assailant.
HAYNE J: But the state reaction is, “Do not make waves, withdraw your complaint”.
MR LOGAN: Yes, quite, so that it is in the context of an indifference, at least, on the part of the state. The way it was approached ‑ ‑ ‑
GUMMOW J: It is more than indifference.
MR LOGAN: It could even be corruption, yes, that is certainly open as a factual ‑ or perhaps more than corruption even: collusion. The example given though postulates someone “in Germany in 1935” with:
discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted.
GUMMOW J: I am not sure that is historically correct; I am not sure that is an historically correct statement. His Lordship had read the Klemperer diaries and might have a different view of what was going on.
MR LOGAN: Yes. It is still, I suppose, being used to drive a particular example or hypothetical argument.
GUMMOW J: On a false historical basis, I suspect.
MR LOGAN:
Are they being persecuted on the grounds of race? In my opinion they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class.
We translate that to this particular case in terms of what the Tribunal did by way of assumption as to a particular social group, to put forward this that it is not wrong to regard this as a case where, merely because not every businessman is persecuted that that does not mean that that is the, nonetheless, class or the social group identified; it is just that those who have refused to wear the yellow star, as it were, drawn to the attention of those who have it in mind to persecute businessmen, or, at least, that is a view that we submit, factually, to which the Tribunal could come in this case. Not the only view. There are others, and they have been, with respect, articulated from the Bench. Hence the submissions to whether this comes to a case of error within jurisdiction or not, and the Tribunal has not, as we have submitted, made any particular excursion into what does or does not amount to a social group in law as opposed to assuming one which is quite capable of amounting in law to a particular social group.
In terms of a substantive ‑ ‑ ‑
GLEESON CJ: Am I right in thinking that the case that has been put by the applicant to the Tribunal is that he did not, as it were, wake up to the fact that he was a victim of persecution until he was in Australia?
MR LOGAN: Yes, one gets that very much from the visa application and the references to the “Forbes” magazine article and then particularly the SBS broadcast. In terms of content of particular social group, and insofar as the Court would wish to look to that in disposing of this case, might we draw the Court’s attention, please, to a publication from the United Nations which is more recent in time than the handbook to which reference is usually made? It is a publication of the United Nations Refugee Agency which came in 7 May 2002.
KIRBY J: I think I saw this. Is this annexed to your submissions or somewhere?
MR LOGAN: It is annexed or attached to our list of authorities. It is filed with that.
CALLINAN J: This is not the commission of which Libya has recently been appointed chair, is it? No, I am sorry. That is Human Rights, is it not? It is a different commission.
KIRBY J: Yes, that is a different body. That is the United Nations Human Rights Commission. This is the United Nations Refugee Agency, a hands‑on agency that is dealing with cases ‑ ‑ ‑
MR LOGAN: Yes. We are not in a position to assist as to from which country the rotating chair is drawn, your Honour, with that. The parts which we would respectfully draw attention particularly is on the third page of the documents we have filed. It is under the heading “UNHCR’s Definition”. The paper postulates that there are two particular schools of thought or approaches, what it terms “a protected characteristics” approach and a “social perception” approach, and then comes up with a synthesised version of that in the third paragraph under the heading “UNHCR’s Definition”:
a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.
That, we submit, is a definition which is in conformity with the jurisprudence that has developed in our country and we would submit that when one reads this particular publication it is apparent that the root authority here which, in our submission, is Justice McHugh’s judgment in Applicant A, has very much been taken up into this publication.
GLEESON CJ: Now, they go on to say:
It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset –
That is all that was decided, relevantly, to the present case in Khawar, except in relation to the indifference of authorities point.
MR LOGAN: Yes.
GLEESON CJ: But what about instead of women as a clear example of a social subset, protesters?
MR LOGAN: At the risk of – one might slide from that and say that is political opinion as a quite separate touchstone which could, conceivably, overlap with a particular social group against particular facts.
GLEESON CJ: What about whistleblowers? Are they a particular social group?
MR LOGAN: One would have difficulty with that, in our submission, when one looks back to Applicant A in terms of those who are just perhaps individually concerned with particular behaviour. There would be a lacking of a grouping. The more one narrows the definition of one’s group to the particular – the closer one comes not to group at all but rather just to individuality, with which there is no concern, we submit, in the Refugee Convention. So they are conundrums in terms of if one does make one’s group very wide, it makes it rather hard at times to find “by reason of” and yet if one brings it back to the very specific, one moves away from the group entirely so that a ‑ ‑ ‑
HAYNE J: The “by reason of” arguments are wrapped up, are they not, with the nature of the persecutory conduct, where here you have a non‑State actor – the person who committed the crime of stabbing – the relevant persecutory conduct lies, does it not, if anywhere, in the indifference of the State authorities?
MR LOGAN: Indifference or inability, yes.
HAYNE J: And thus, working with this document that you have just given to us, the steps that seem to require consideration in the present matter are first, the social groups that you have just taken us to. The second step seems to be at paragraph 17 of this document, particularly the last sentence in paragraph 17, that certain members of the group identified:
may not be at risk if, for example, they hide their shared characteristic –
that is an example, I note –
they are not known to the persecutors, or they cooperate with the persecutor.
The third step seems to be in the last sentence of paragraph 20. Does that accurately identify the steps for inquiry that are relevant in this case?
MR LOGAN: It would identify them in this case, or really any case along the way, because the test is unchanging. The touchstone remains the Convention. One wonders in reading paragraph 17 in that publication whether the example of the Jewish businessman in Shar’s Case was in the back of the mind of the author there.
HAYNE J: Or, in the facts of this case, is the reference to the “businessman who does not make waves”?
MR LOGAN: Yes. That though, with respect, would then still pose the question as to whether it is wrong to regard the social group as businessmen who have ‑ and it just so happens that the status as a businessman has drawn attention because of protest activity – and then there is a quite separate question, not the subject of any referral, as to whether there is any separate Convention reason found in political opinion, so that the more one looks ‑ ‑ ‑
KIRBY J: Are we concerned with that? I think the applicant wanted to expand his arguments into that but that is not before the Court on either the appeal of the constitutional proceeding, is it?
MR LOGAN: No, it is not.
KIRBY J: So we are just focusing on the suggested error of defining the social group.
MR LOGAN: Yes, quite.
GLEESON CJ: There are two related questions, are there not: definition of the social group and whether the persecution was by reason of membership of that group? The decision of the Tribunal went on the fact that there was not persecution for a Convention reason.
MR LOGAN: That the fear when one analysed it was not a fear of persecution by reason of any Convention reason.
GLEESON CJ: They are just two sides of the one coin but the related questions are: was he a member of a particular social group; and was what he was suffering by reason of that membership?
MR LOGAN: Yes.
KIRBY J: But you cannot jump to the second until you define the first.
GLEESON CJ: That is why I said they are two related questions.
MR LOGAN: Yes.
KIRBY J: The suggested error here is in the definition of the first which over‑broadened the focus of attention.
MR LOGAN: One might detect perhaps hints of a dissenting judgment in Khawar in some of the submissions the Commonwealth makes today in the sense that the Tribunal reached some pretty clear views as to the occasion for the persecution really lying in a generalised lawlessness in Russian society rather than anything ‑ ‑ ‑
KIRBY J: That will be an argument that is still open to you on the facts but at least the suggestion which is put before us is that you should get the social group clear and then by focusing on that you can decide the causative connection issue and you will still have causative connection arguments.
MR LOGAN: Yes.
GLEESON CJ: This Court did not decide in Khawar that Pakistani women were the victim of persecution; it decided that it was not impossible that they were and it sent the matter back to the Tribunal to consider according to law.
MR LOGAN: Quite, yes.
GLEESON CJ: And it, for example, left open the question whether the attitude of the police in that case was the result of local indolence or male chauvinism or corruption or whether it was the result of some State policy of tolerance of a particular kind of conduct. So the persecution, as I recollect it, was said to lie in the combination of the behaviour of certain individual males towards the women and the response, or lack of response, of the authorities to that behaviour.
MR LOGAN: Yes, that is right.
GLEESON CJ: Which might have amounted to a state policy or attitude, or it might have amounted to nothing more than laziness on the part of a few individual policemen.
KIRBY J: Or, in between, an inability to do something.
MR LOGAN: Yes. We detect, with respect, in the core decision not a complete unanimity as far as the identification of what might amount to the particular social group – or at least an acknowledgment that postulated as widely as women in Pakistan, as opposed to women in Pakistan who are guilty of adultery, or whatever. Therein, in our respectful submission, lies a conundrum for the administrative decision‑maker in this case as well, in that what may or may not amount to a particular social group one can accept at a theoretical level, but one has to look at this in terms of the way a case is presented and then viewed, and whether that view of the case as presented, at a factual level, is reasonably open. Putting to one side, in our ‑ ‑ ‑
CALLINAN J: I think in Khawar it was submitted that there were a number of classes in the alternative and each one was progressively narrower. But, in the end, as the Chief Justice has pointed out, the decision in this Court really did not decide that.
MR LOGAN: No. As pointed out, it went back for the appropriate fact finding against ‑ ‑ ‑
CALLINAN J: I do not think the sort of question that arose in Khawar really arises here, in the sense that what is relied upon here and is defined by the only question before the Court is a much narrower matter than anything that had to be decided in Khawar.
MR LOGAN: Yes, it is, with respect. There are two, we would submit, principles interplaying. One is, is there a jurisdictional error? But to look to that, one needs to assess what is in law capable of being a particular social group, but was it then necessarily the role of the Tribunal to assess by reference to that very social group which is conceptually open in law?
KIRBY J: Now, let us get our categories clear. The jurisdictional error would be essential for the constitutional writ, but it would be only one of several grounds under section 476(1) for relief to the applicant here. It is enough for him to show an error of law or a constructive failure to exercise the jurisdiction.
MR LOGAN: It would be enough to show that on the facts found by the Tribunal in law the Tribunal was flawed, under 476.
KIRBY J: Which is the category that, in your submission, if it were found that the Tribunal misapprehended the particular social group, would give rise to relief?
MR LOGAN: If one were to look to 476, the paragraph which, in our submission, is most apt would be 476(1)(e), an error of law, “An incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
GLEESON CJ: It is being put against you that this was a constructive failure to exercise jurisdiction, on the basis that the viable case being put forward by the applicant just was not considered by the Tribunal. That is the error attributed, is it not?
MR LOGAN: Which would be in paragraph 476(1)(a), “Procedures required by the Act were not observed”.
GLEESON CJ: I do not think so.
KIRBY J: We have to keep clear in our mind the different territory for the constitutional writs and for the appeal, because, primarily, as I understand it, the applicant for special leave has argued within the confines of the appeal.
MR LOGAN: Yes, that is so. As far as an administrative tribunal is concerned, our submission is that a tribunal is entitled to be guided by ‑ ‑ ‑
GUMMOW J: Before we leave 476, where does constructive failure to exercise jurisdiction fit into 476? It may not – I do not know. I will have to think about it.
MR LOGAN: I would try and fit it into (1)(e).
GLEESON CJ: 1(e)?
MR LOGAN: Yes. On the facts as found.
KIRBY J: Where do we find the old form of 476, because it has been deleted from my ‑ ‑ ‑
MR LOGAN: If one has reprint No 7.
CALLINAN J: I have 8 with me at the moment.
KIRBY J: I have 8, too, and it is completely useless.
CALLINAN J: Is it anywhere in the submissions? Did you ‑ ‑ ‑
KIRBY J: I thought there was an annexure.
MR LOGAN: No, we have not set it out in the ‑ ‑ ‑
KIRBY J: It might be as well in these transitional cases, if you come again, to give us the benefit of the old section. There are some provisions attached to the applicant’s submissions, but they do not include 476, I think.
MR LOGAN: The submission ‑ ‑ ‑
KIRBY J: Pleasant though it is to revisit section 476 constantly, I do not keep them all in my mind.
MR LOGAN: No, notwithstanding the frequency of its – there are other matters which distract one.
GUMMOW J: Well, we have come to a view of it because in so far as 476 would not meet the case put of constructive failure to exercise jurisdiction, there is room for 75(v) undoubtedly.
MR LOGAN: Indeed, yes.
GUMMOW J: In so far as section 476 would meet it, then as a matter of discretion you would not apply 75(v) because there was already a remedy through 476.
MR LOGAN: Quite, yes.
GUMMOW J: But we need to know where it all falls.
MR LOGAN: Yes.
KIRBY J: Otherwise we do have to have the help of the applicant and yourself on the constitutional writs.
MR LOGAN: If it is not regarded as ‑ ‑ ‑
KIRBY J: Is it the Minister’s submission that if the applicant makes good his contention that the Tribunal misapprehended the classification of the social group that the applicant was putting before the Tribunal, that that would give rise to a remedy under section 476(1) of the Act as it then stood, not excluded by 476(2) or (3)?
MR LOGAN: Yes. If one regards it as an error in terms of applying the law to the facts as found. The facts as found being “I believe this man, I believe he was a protestor, and I believe he was a businessman who protested”.
GLEESON CJ: But the error that is attributed in the limited grounds that are referred to us is that the Tribunal did not deal with the applicant’s case.
MR LOGAN: Yes, your Honour.
KIRBY J: Is that a natural justice ‑ is that an available natural justice case?
MR LOGAN: No. If it did not deal ‑ if one regards it as a case of not dealing with it, then it is a constructive failure to exercise the jurisdiction.
KIRBY J: And that is only remedied, is it, by 75(v)?
MR LOGAN: By section 75(v), yes.
KIRBY J: I thought there was a jurisdiction point ‑ I wish I had section 476(1).
CALLINAN J: Yes, me too.
KIRBY J: I thought there was a subcategory of jurisdiction there.
MR LOGAN: No, jurisdiction as a particular ‑ jurisdictional error as such is not mentioned.
GUMMOW J: Section 476(2) can be a problem.
MR LOGAN: Yes, if one were in the area on unreasonableness, yes.
GLEESON CJ: What has actually been referred to us, what is before us in the application for special leave to appeal is the question whether the Tribunal erred in law in a certain respect. That appears from page 14 of the transcript of proceedings before Justices Gummow and Gaudron on 28 June.
MR LOGAN: Yes, and reflected in the order of referral.
KIRBY J: That is (e) as you have submitted. That is to say, if it is anything, it is (e). The decision involved an error of law being an error involving an incorrect interpretation of the applicable law, an incorrect application of the law to the facts as found.
MR LOGAN: Yes.
KIRBY J: Does that run into a problem here that the Tribunal has failed to find facts, that is to say whether the applicant is a member of a particular social group constituted by businessmen who protest?
MR LOGAN: If one characterises it that way it does, and then one is driven to a constitutional writ.
The submission we would wish to close on really is that of not so much what amounts to a particular social group in law; we have covered that, with respect, in our written submission and we have drawn your Honours’ attention to two more recent excursions into that, but really what was the role of this Tribunal in terms of the review function it was discharging and whether it was just one of those factual judgments guided by a case as presented, or the Tribunal’s perception as the case as presented which was open for an administrator to make. If it is, as we would submit, be the case that one can read the Drakopoulos letter in different ways, then without being compelled to read it only in a way the subject of the referred question, then we submit that is just one of those judgments an administrator has to make. There is a factual foundation for the comments the Tribunal makes ‑ we have set that out in our written outline ‑ and there is no error of law involved in the case.
HAYNE J: Can I just understand a matter of fact about the procedures? We have been referred to a transcript of the proceedings before the Tribunal. That transcript, as I understand it, reveals an intervention by Mr Drakopoulos at the very end of the proceedings on a matter not presently directly relevant and no other intervention by him.
MR LOGAN: No other intervention, yes.
HAYNE J: That is right. He was not there advocating a particular case different from whatever advocacy was in this letter that we have spent a little time looking at?
MR LOGAN: Yes, that is, with respect, right. Might we just go to the particular page we have in mind in that context, in the green book, the supplementary book, at page 315, about line 5. There is the reference to –by Mr Drakopoulos – to the written submission. We take that to be the letter the Tribunal acknowledges receiving, and then there is just that further bracket which one sees there, which does have a submission content to it.
HAYNE J: “Not perspicuously clear” is, I think, what might be said, Mr Logan.
MR LOGAN: Well, that, with great respect, is the classification that the respondents – save, of course, the Tribunal – would give to the letter itself, and hence the conundrum, we respectfully submit to the Court, as to whether it really, in that situation, is an error to regard or assume the social group as the Tribunal did. Unless the Court has any ‑ ‑ ‑
GLEESON CJ: I do not want to give any invidious particular examples, but it is not difficult to think of places in the world where anybody who publicly protested about any form of government action or inaction will be in some trouble.
MR LOGAN: And postulated that widely, in our submission, it does not present a particular social group ‑ ‑ ‑
GLEESON CJ: I do not have a problem with that, but what I wanted to ask you was this: suppose that a person protests and, predictably, ends up in trouble from the State and then you find that that particular protester was protesting about some grievance particular to a social group – dairy farmers, if you like. How do you then go about deciding whether or not what is happening to that person at the hands of the State is by reason of membership of the particular social group? If, for example, a protester who was walking around a particular square in a particular country, complaining about the way dairy farmers are treated, is dealt with harshly by the State, as you might expect anybody who protested about anything in that place to be dealt with, how do you tell whether or not the treatment is by reason of being a dairy farmer or by reason of being a protesting dairy farmer?
MR LOGAN: The answer to that, at the risk of inadequacy, is it is going to depend on the case as presented factually in the particular situation, and if it leads one to a situation where one just cannot be satisfied as to any particular reason, then one does not grant a protection visa; one might well be driven to humanitarian differently grounded visas.
GLEESON CJ: Well, the reason, in the example I have given, is that the person is protesting. There are some societies that do not tolerate protest. Now, if the particular protester is unquestionably a member of a social group and is protesting about what is happening to that social group, how do you go about deciding, in the case I have raised, whether or not there is persecution by reason of membership of the social group?
MR LOGAN: That may, along with general evidence about the state of the country, provide evidence of a perception, at least in that society, that that group is discrete and is persecuted by reason of that group membership alone.
KIRBY J: It would depend on the evidence, the inferences from the evidence and commonsense, would it not? If the evidence indicated or country reports that dairy farmers on their farm tending their cows were left alone, the added ingredient of protest would then give rise to the possibility of a finding that that was the reason.
MR LOGAN: That is what attracted us to Lord Justice Auld’s description in Skenderaj about the nature of the decision that is made, but it is one of ‑ ‑ ‑
HAYNE J: Or is such a case more readily tipped over into the political category rather than the social group category, the only two actors in the example given being the protestor and the State, whereas here we have perhaps a case of three actors about – the protestor, those non‑State elements who are of an interest adverse to businessmen whom they do not control and State indifference or indolence is the case that is made.
MR LOGAN: You could.
GLEESON CJ: Yes, I was not, in my example, postulating State indifference or indolence. I was prosecuting vigorous State relations.
MR LOGAN: Yes. Might we just, by way of answering at the risk of – I know the time is getting on, we note that. What one would not do is answer it, we respectfully submit, in a way that is postulated in an academic treatise to which we have made reference in our list of authorities, Refugee Rights and Realities, under the editorship of Nicholson and Twomey and at page 34 of that ‑ ‑ ‑
KIRBY J: That is annexed to the materials we have, I think.
MR LOGAN: It is annexed to the list of authorities filed. Under the heading “Proof and presumptions” there is discussion there about – and we draw attention particularly to the second paragraph.
KIRBY J: What page?
MR LOGAN: On page 34 under the heading “Proof and presumptions” and in the second paragraph in that one sees a sentence which starts at line 4 in that second paragraph:
The problems of proof might be solved through the use of certain presumptions –
and so on. That, with respect, would be contrary to our system of administrative decision making requiring some sort of reasonable basis factually for a conclusion reached by an administrator. It is one approach that is postulated. It is just one with which we would respectfully differ as to its providing a solution to the conundrum presented by the Chief Justice’s question. These things are often much clearer in hindsight and in large hindsight as to what the occasion for persecution was. It is much easier after a hundred cases of attacks on kulaks to say that is why it is happening, as opposed to the very first case that comes along, or a kulak who is protesting, but that would just mean that the first kulak, unfortunately, would not satisfy a particular Convention reason. If the Court pleases, unless there are any further matters, they are our ‑ ‑ ‑
KIRBY J: Just two small things. First of all, the applicant was, in a sense, encouraged, in the way the matter developed, to confine his arguments to the appeal although we have his written submissions in the application for constitutional writs. Have you said everything you want to say on the constitutional writs in case we are driven back to the constructive failure to exercise jurisdiction that is said in the written submissions?
MR LOGAN: Yes, we would not press any discretionary questions as far as time is concerned, if one were driven to a constitutional writ. The man has, with respect, pursued the remedies that our legal system offered through the Refugee Review Tribunal and the Federal Court. It is plainly enough that he has not rested on his rights there, so we would not press that.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Dranichnikov.
MR DRANICHNIKOV: In reply to the respondent’s submission I would like to say that, first of all, the prosecutor and applicant in appeal and in the second proceeding seeks relief under two main grounds. First of all, the Tribunal breached the rules of natural justice in rejecting the application for protection visa. This ground actually was removed from the Immigration Act ‑ ‑ ‑
GLEESON CJ: What we are interested to hear from you is what you want to say in answer to what Mr Logan said.
MR DRANICHNIKOV: Yes, that is correct. The relief could be granted on these two grounds, first of all, breach of the rules of natural justice and second ‑ ‑ ‑
GLEESON CJ: No, what was it that Mr Logan said that you disagree with?
MR DRANICHNIKOV: Okay. I would like to say that after it was discussed this morning that very narrow particular social group, businessmen who was criticising law enforcement authority, it represents particular social group which could be persecuted and it had been discussed that this particular group and in present case was persecuted – …..was persecuted because of reason of this criticising of authorities. In this case, and I understood the responding party agrees to this, the…..could – if more narrow group could consist of this particular social group for reason of Convention.
I would like to say that, first of all, the constructive failure to exercise jurisdiction was classic example. In the matter Miah her Honour Justice Gaudron refers to the matter. I would like to refer you to the matter Miah, on my list of authorities No 12, page 81, in paragraph 80:
Constructive failure to exercise jurisdiction
The classic statement was to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council. That statement, which has been approved by this Court on numerous occasion identifies a constructive failure to exercise jurisdiction as occurring when a decision‑maker “misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and . . . appl[ies] ‘a wrong and inadmissible test’ . . . or . . . ‘misconceive[s his or her] duty,’ . . . or ‘[fails] to apply [himself or herself] to the question which the law prescribes’ . . . or ‘ . . . misunderstand[s] the nature of the opinion which [he or she] is to form’”.
I would like to refer to another matter. This is in my list of authorities, 43. This is…..Hebburn Limited, at page 420, I think in the third paragraph, it is in the middle. Chief Justice Jordan says here:
I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test” or to “misconceive its duty” or “not to apply itself to the question which the law prescribes” –
So it happened in the present case that the Tribunal misconceived the main issue. There is enough persecution, and I think also the State protection, because I could not apply to the authorities to ask protection. I had to do it. I had to ask somewhere, because I was not protected by the law.
Also, I would like to refer to section 420. It also requires that the Tribunal deal in accordance with procedural fairness. So section 420(2):
The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
We discussed in the morning Paramananthan matter and also this matter refers to many, many other matters in my list of authorities. …..the Tribunal must deal fairly and “according to substantial justice and the merits of the case.” …..said that the respondent said that this is only one act of persecution. I think we could see this morning that not only one fact was persecuted but in the decision before the High Court here….that only one, the act of persecution, is enough for Convention reasons. I think it was in Chen v Minister for Immigration. Also, I would like to refer to my submission. The respondent referred to the article from Forbes. In this article, I can show it is actually a genuine article, but in the application book volume 2 at page 124 – if the Court pleases to have a look at it.
Yes, I am sorry. It is not a very good copy. It is hard to distinguish but it is actually described - it is last column and last paragraph – I think two last paragraphs. It says that:
Boris Feodorov –
who involved in duty‑free importation of goods from a national support fund – gift fund:
gave a newspaper interview in which he claimed that he was being victimized by criminal organization within President Yeltsin’s administration.
After that Boris:
Feodorov was shot and repeatedly stabbed –
because:
that interview was so close to the truth as to threaten the gangsters and their higher up accomplices.
And after that Mr Feodorov had to flee Russia and also ask protection somewhere. You can see that this is not only one inference. This was when also in the Department of Immigration Tribunal – Refugee Review Tribunal and they had been aware of the circumstances in the country in my particular circumstances. I would like to refer, please, to my authority – list of authority No 38. So, this is Calado v Minister for Immigration. Page 75, please. This matter says about central issue to a determination:
The failure to address –
I am sorry, this is after the – page 75.
KIRBY J: Which page?
MR DRANICHNIKOV: Page 75.
KIRBY J: Which paragraph? It is not numbered.
MR DRANICHNIKOV: Paragraph D. It says:
The failure to address that central question was found to constitute a failure on the part of the Tribunal to act according to substantial justice and to the merits of the case in relation to that aspect of the appellant’s claim, and therefore to amount to a failure to observe a procedure required by the Act.
So we can apply this precedent to our present matter. Also, we would like to refer, if the Court pleases, to a particular social group. This issue was discussed in Applicant A v The Minister for Immigration, which is authority No 15 in my list of authorities. Actually, this is on page 236. In paragraph 2 it refers to the matter in Attorney-General (Canada) v Ward and:
La Forest J identified three possible sub-categories which he accepted as coming within the category of a particular social group:
“(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association –
and I think here later and after the third group reference made to:
the second would encompass, for example, human rights activists.
So protection of human rights, because if people killed, they have – everyone of us have right to live. The International Covenant of Civil and Political Rights authority says that – few articles says about human rights, about right to live, about right to be protected. Furthermore, I think paragraph 3 refers to – it says:
that persons who share a characteristic need not be associated one with another before the . . . ground for holding that a characteristic must be “innate or unchangeable” before it can distinguish a social group. If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status.
And then his Honour raised question, proper question which was arised this morning also. He said:
In my opinion, the appropriate way to apply the definition of the present case is to find the answer to a series of questions:
1. Does putative refugee fear persecution?
2. Is the fear well-founded?
3.Is the feared persecution practised or likely to be practised because of a characteristic of the victims that is not common to the members of this society at large?
4Is the persecution practised officially or is it officially tolerated or is the government of the country of the putative refugee’s nationality unable to control it?
5.Is the putative refugee unwilling to avail himself or herself of the protection of the country of his or her nationality?
6.Is that unwillingness due to the feared persecution?
So the Refugee Review Tribunal failed to apply correct question to the issue.
Also, the respondent referred us to the United Nation guidelines on interpretation of international protection, in my list of authorities No 50. Would you like to have a look at it? It is on page 3 - on page 2, paragraph 6:
The first, the “protected characteristics” approach (sometimes referred to as an “immutability” approach), examines whether a group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it. An immutable characteristic may be innate (such as sex or ethnicity) or unalterable for other reasons . . . Human rights norms may help to identify characteristics deemed so fundamental to human dignity that one ought not to be compelled to forego them.
In present matter we cannot because as a matter of conscience we cannot forsake this ‑ I cannot forsake my opinion because this is a matter of conscience and dignity and I could not change because of a sense of justice what we felt. Also, this approach approved a number of matters from Canada. Cheung v Canada, Mayers v Canada and Chan v Canada, No 28 of list of authority. Then it is also approached in the United States Department of Justice. This is matter of Acosta. I would like to refer to the matter of Acosta. It is No 25 in my list of authority, page 16 please. The judges said:
we interpret the phrase ‘persecution on account of membership in a particular social group’ to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic . . . The particular kind of group characteristic that will qualify under this construction remains to be determined on a case‑by‑case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual entities or consciences.
So in this matter the person was a member of a taxi cooperative, and he could not change his job. He could not change his job and escape persecution. But then as a matter of conscience how you can change yourself.
Another matter I would like to refer – this is on my list of authority, 27 ‑ this is Sanchez‑Trujillo I think, page 1576. I would like to refer to in the second column, the paragraph in the middle. It says:
Instead, the phrase “particular social group” implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.
I would like to include, if you please, in list of authority numbered 54, this is article, “Asylum for Persecuted Social Groups”, written by Compton. I would like to refer to page 926, paragraph 3. It says:
In this European example, groups of capitalists and independent businessmen could have been seen as a threat or a vestige of the old order to the new Communist governments.
GUMMOW J: What page?
Another matter I would like to refer – this is on my list of authority, 27 ‑ this is Sanchez‑Trujillo I think, page 1576. I would like to refer to in the second column, the paragraph in the middle. It says:
Instead, the phrase “particular social group” implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.
I would like to include, if you please, in list of authority numbered 54, this is article, “Asylum for Persecuted Social Groups”, written by Compton. I would like to refer to page 926, paragraph 3. It says:
In this European example, groups of capitalists and independent businessmen could have been seen as a threat or a vestige of the old order to the new Communist governments.
GUMMOW J: What page?
MR DRANICHNIKOV: Page 926.
GUMMOW J: 926?
MR DRANICHNIKOV: Yes. It is in paragraph 2:
In this European example, groups of capitalists and independent businessmen could have been seen as a threat or a vestige of the old order to the new Communist governments. Thus, the perception of the persecutor, in this case the Communists, is an important factor in the group cognizability analysis. If group members are persecuted on the basis of their unifying characteristics, such as being capitalists or young men refusing to serve in the military, then these characteristics should be sufficient to identify the group.
Also in this matter – this matter was referred to in page 928 that I just refer it that nevertheless we accept that the businessmen social group, but we are talking about in a narrow group entrepreneur who openly – or businessmen who openly spoke about corruption and criminal activities.
I would like to refer, please, if the Court pleases, to authority No 56. This is an article of Professor Fullerton, “A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group”. I would like to refer, please, on page – …..to page 5, paragraph 8. It says, “The last category of social group that Hathaway examines is voluntary association. In essence he suggests that where there is a presumption against voluntary association is social group because that abuse with membership may…..by the decision to disassociate from the group. The presumption is overriding, however, when membership in the voluntary association is a member of conscience or human dignity or otherwise from the mental human rights.”
So we interpose this particular social group, a narrow social group, who criticised the law enforcement authority, we protected our rights ‑ fundamental rights of another people for their life who was killed and no one was punished.
I would like to, please, if the Court pleases, refer to authority No 55.
GLEESON CJ: Not if it is for the purpose of supplementing the argument that you put this morning. The purpose of this exercise is to enable you to tell us what Mr Logan said that was wrong.
MR DRANICHNIKOV: I referred already to Chan and single act of persecution is sufficient to ‑ for reason of persecution under the Convention, a person who has well‑founded fear of persecution for reason of, has been discussed.
GLEESON CJ: Now, does that cover the answer you will have to make to Mr Logan?
MR DRANICHNIKOV: Yes.
GLEESON CJ: Thank you. Is there anything else you want to say in answer to Mr Logan?
MR DRANICHNIKOV: As I understood, he did not argue about discretion.
GLEESON CJ: I did not hear him argue about that.
MR DRANICHNIKOV: He did not argue.
CALLINAN J: He conceded discretion as I understand it.
KIRBY J: At least in respect of time.
CALLINAN J: Yes. Well, I did not understand him to suggest that there were any other discretionary considerations against you anyway. I think I am right in saying that.
GLEESON CJ: Yes.
MR DRANICHNIKOV: Thank you very much.
GLEESON CJ: Thank you, Mr Dranichnikov. We will reserve our decision in these matters, and we will adjourn until 10.15 tomorrow morning.
AT 2.45 PM THE MATTERS WERE ADJOURNED
0
2
0