Dranichnikov v MIMIA B105/2002
[2003] HCATrans 835
•25 June 2003
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B105 of 2002
B e t w e e n -
OLGA DRANICHNIKOV
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for special leave to appeal
Office of the Registry
Brisbane No B56 of 2002
In the matter of -
An application for Writs of Mandamus, Prohibition and Certiorari against MICHAEL BAUMANN, in his capacity as the Federal Magistrate of the Federal Magistrate’s Court of Australia
First Respondent
PHILIP RUDDOCK, Minister for Immigration and Multicultural and Indigenous Affairs
Second Respondent
Ex parte –
OLGA DRANICHNIKOV
Applicant/Prosecutor
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 2.29 PM
Copyright in the High Court of Australia
__________________
MRS O. DRANICHNIKOV appeared in person.
MS E. FORD: If it please your Honours, I appear for the Minister and I seek leave to appear on behalf of the second respondent in the B56 matter, the application for the orders. (instructed by Australian Government Solicitor)
GUMMOW J: Has the interpreter been sworn?
COURT OFFICER: No, your Honour.
GUMMOW J: Would you please proceed to do so.
VADIM DOUBINE, affirmed as interpreter:
GUMMOW J: Now, how is the best method to proceed? Is it best if you indicate when you need the assistance of the interpreter?
MRS DRANICHNIKOV: Yes, that would fine. May I indicate to you if I will have some difficulties, so may I use the assistance of the interpreter?
GUMMOW J: Yes, indicate if there are any difficulties and then we can use the interpreter, but otherwise proceed as you now are.
MRS DRANICHNIKOV: Thank you very much, your Honour.
GUMMOW J: Now, will you deal first with the application for special leave.
MRS DRANICHNIKOV: Yes. If the Court pleases, I have got some written submission prepared for convenience for the Court. May I hand that down. Thank you very much.
GUMMOW J: If you sit down for a minute, we will take a moment to read these. We are reading to paragraph 10 at this stage. Yes, do you wish to add anything orally to what is written there?
MRS DRANICHNIKOV: Yes, I can say a lot about my matter. This special leave application was brought from the Full Federal Court which was constituted by a single judge, his Honour Justice French. I am complaining about this decision and I ask special attention of this Court because this matter of great public importance, this matter is concerning discrimination of woman who were included ‑ ‑ ‑
KIRBY J: We understand that. We have read both the materials that you have put before us earlier and the written submission that you have filed, but what is a puzzle to me is that on 22 June 2001 the Full Court of the Federal Court of Australia allowed your appeal and the respondent has said, for reasons that are not clear, you have not availed yourself of the right to pursue the separate application. So why would this Court become involved in matter where you have won an appeal before the Full Court, you have a right to pursue in your own name and for your own claim and you have not bothered to do it?
MRS DRANICHNIKOV: Can I explain the situation, your Honours. I was restricted by the respondent to apply in my own right because the respondent applied…..to the High Court to seeking the special leave to appeal from the Full Federal Court decision. So, notice of ‑ ‑ ‑
KIRBY J: Do you say that the respondent appealed or sought special leave to appeal against that decision?
MRS DRANICHNIKOV: Yes, that is right.
KIRBY J: What happened about that application? Was it heard?
MRS DRANICHNIKOV: The application was not heard ‑ ‑ ‑
KIRBY J: It has never been heard but, as far as you know, it is still current, is that ‑ ‑ ‑
MRS DRANICHNIKOV: No, the situation is, at the same time the respondent is pursuing the amendments in the Migration Act to amend section 48A and when I filed the application to the High Court notice of motion that the Minister’s application should be struck out as an abuse of process because the Minister in his parliamentary speech, he admitted that I was right and he admitted that the decision made by the Full Federal Court was a sound authority, but at the same time he was pursuing his application in the High Court. After my notice of motion on 9 January 2002, the Minister was discontinued his application for special leave to appeal to the High Court.
KIRBY J: So, so far you are the winner. You have won the case. You are entitled to pursue the matter in your own right.
MRS DRANICHNIKOV: Not at all, not at all. Unfortunately, your Honours, by these amendments which the respondent made in section 48A and in section 36(2) it was actually implemented the principle of family unity. So, in this case I have no necessity to apply for application for refugee status in my own right because section 36(2) clearly says after the amendment that the applicants for protection visa, persons who are owing the Convention obligation and the spouse or dependant of the family unit. So, in that case, I sent the letter to the respondent asking him to postpone the determination of my application until my husband’s application will be resolved in the Court.
I pointed – I have got evidence ‑ actually if you have a look in this evidence, I have got this before the Court – and I pointed that as far as now, after your amendments, section 36(2) permitted me to get refugee status if my husband will get refugee status. I am in no need to apply application in my own right because my application was admitted as…..by the justices of the Full Federal Court. So it was alternative to apply as a family member or as an applicant for a protection visa in own right. So in that ‑ ‑ ‑
KIRBY J: I wonder if you would permit this course, that, you see, your husband was successful in an appeal to the High Court and by reason of the orders of that Court, his case, which includes a claim in respect of yourself and your daughter, will go back to the Tribunal to be redetermined. If you win that case, all of the matters that are before this Court become redundant because you will then have the benefit of the protection visa in your husband’s case.
MRS DRANICHNIKOV: Can I there do not agree with you, your Honour, because clause 866 prescribes specific criteria for grant of a protection visa, so every member of family unit of the applicant for a protection visa still have to make an application for a protection visa in their own right. So, as correctly pointed there, Full Federal Court, Justices Lee, Merkel and Finn, they said that respondent, they eliminated the subclass of members of family unit and they replaced this subclass 200, which was until 1993, and respondent replaced by clause 866 which prescribes that for granting a protection visa every member of family unit should satisfy primary criteria. Primary criteria, again, states every member of family unit of the applicant for protection visa should make an application for refugee status in their own right.
So it is as you pointed – actually I am aware about matter which was heard by his Honour Justice Kirby, matter Applicant S191. I can show you ‑ ‑ ‑
GUMMOW J: Now, look, Mrs Dranichnikov, this is an application for special leave to appeal from the matter heard by Justice French.
MRS DRANICHNIKOV: That is right.
GUMMOW J: That was a matter arising under the Discrimination legislation.
MRS DRANICHNIKOV: That is right.
GUMMOW J: Now, it is true that these questions of your independent refugee status are involved but, at the end of the day, what we have to decide is whether there is sufficient suggestion of any error by Justice French in dealing with the very specific points he had to deal with about your discrimination claim and the dismissal of that discrimination claim by the Federal Magistrate.
MRS DRANICHNIKOV: Yes, thank you very much. I just was trying to answer ‑ ‑ ‑
GUMMOW J: I understand that, but you are using your time, not very wisely, perhaps.
MRS DRANICHNIKOV: Sorry, your Honours, yes. That is right, that this matter for special leave to appeal was brought under Human Rights and Discrimination legislation, specifically under Sex Discrimination Act, section ‑ ‑ ‑
GUMMOW J: We understand that, but where do you say Justice French made an error? It is a very detailed judgment. His Honour was, I think, aware that you were appearing for yourself and he has taken, it would seem, some particular effort to deal comprehensively with the case.
MRS DRANICHNIKOV: Yes, Justice French made the decision and he unfortunately did not find that I was actually discriminated based on the ground of my gender and marital status but, unfortunately, Justice French did not follow the judgment – the ratio in judgment made by the Full Federal Court. It is actually – if I refer your Honours to the judgment made by the Full Federal Court, it is actually in this application book, page 106.
KIRBY J: Yes, we have seen the Full Court decision. We have seen Justice French’s decision and Justice French says that your complaint of having discrimination against you really falls down on the facts because when you put in your application, although you ticked the box that said you wanted to be considered separately, you then proceeded to fill in that part of the form which sought your treatment of your application as part of your husband’s application and that that was the real basis on which the Department proceeded in that way.
MRS DRANICHNIKOV: It is not true. Actually, in my husband’s application, I filled that Part D for members of family units and if you can have a look in the supplementary book to the application, it is very important, your Honours.
GUMMOW J: That is the blue book?
MRS DRANICHNIKOV: Yes, blue book, supplementary application book. It is page 2 of this supplementary application book. In this application – it is application of husband, Serguei Dranichnikov, and on page 1 we can see the receipt which he received and paid $30 for this application. But it is very important that if I refer your Honours to page 26 of this book. It says:
Application for a member of the family unit –
and it was filed by me on behalf of me. It says “Dranichnikova Olga” and I was included in his family unit at the same time. I would like your Honours – to refer you to page 11 of this application – of my husband’s application.
KIRBY J: But it is one thing for a mistake to happen; it is another thing to allege discrimination as the cause of the mistake. The fatal flaw that was seen in the second, which is a higher allegation – we all make mistakes ‑ ‑ ‑
MRS DRANICHNIKOV: Yes, that is right.
KIRBY J: ‑ ‑ ‑ it is a higher allegation ‑ ‑ ‑
MRS DRANICHNIKOV: That is right, yes.
KIRBY J: ‑ ‑ ‑ is, as it were, a subjective intent to discriminate against you and the answer that has been given to that is you really brought it on yourself by proceeding in the wrong way in the form and by proceeding in the way that you were asking to be dealt with as part of your husband’s application, therefore, a mistake was made but it was not one which intended to discriminate against you. Now, that is just a factual question. We would not normally get involved in that.
MRS DRANICHNIKOV: Unfortunately, his Honour erred in law because it was intention to discriminate me because if ‑ ‑ ‑
GUMMOW J: That is what you say.
KIRBY J: But Justice French did not accept that because he pointed to the fact that you filled in the wrong box and then set the case off down the wrong track because of the way you filled the form in.
MRS DRANICHNIKOV: Actually, can I refer your Honours to page 11 of this application?
KIRBY J: Yes.
MRS DRANICHNIKOV: I pointed that I have my own refugee claim in my own right. Page 11 of this blue book. It was part of my husband’s application:
Applicant 1 to answer and sign –
it is signature of my husband, Serguei Dranichnikov, and:
Applicant 2 to answer and sign –
it was my signature. I showed intention to the Department of Immigration that I had my own claim to be assessed under Refugee Convention separately from my husband. Under section 54 of the Migration Act the respondent should have regard to all information which set out in the application for protection visa, so they failed to consider this information because I signed, I pointed ‑ ‑ ‑
GUMMOW J: We understand that, but that is not responsive to my colleague’s question to you. It is a question of intent to discriminate, as distinct from things going awry because of things going incorrectly because of some mistake, and you do not deal with the question just by pointing to these circumstances. The question is the intent to discriminate.
MRS DRANICHNIKOV: Yes, I understand.
GUMMOW J: You lost on that issue before the magistrate and you lost again in the Federal Court. Now, why should we get involved, other than ‑ ‑ ‑
MRS DRANICHNIKOV: I am going to prove, your Honours, that I was intentionally discriminated by the respondent because if I showed my intention in my husband’s application by the gender guidelines issued by the Minister for Immigration, the respondent should have compulsory interview with woman who was included in the family unit of the applicant for a protection visa. But, unfortunately, the respondent failed to do that, failed to take into consideration that I showed intention, that I am going to proceed in my own right.
On 11 of 2000 I applied my application with my own refugee claim to the Department of Immigration. Can I show you this application which I applied on 11 of 2000. Actually, it is the same book. It is started from page 66. This application which I lodged in my own right with the Brisbane Department of Immigration, it set out all my own claim for refugee status. It is Part C, Part C was filed by me. It set out my own history and my own reason to ask protection in Australia in my own right. Actually I lodged a lot of documents in support of my own application for refugee status and I also paid $30 as an application fee to make my application valid, but unfortunately, I was refused by the respondent ‑ ‑ ‑
GUMMOW J: Now, you appreciate you have no more than five more minutes?
MRS DRANICHNIKOV: I was refused – my protection visa application in my own right was refused. It is page 103. It states that:
Protection Visa application (not valid) accepted ‑
The respondent…..that my application for protection visa was invalid because I was included in family unit of the application and, unfortunately, his Honour Justice French he ignored evidence of cross‑examination which was put before Federal Magistrate Baumann that manager who refused my application in my own right for protection visa, when I ask her. “If in the case if I would be single, how would you treat my application?” She said, “They will accept this Part C.” I said, “If my husband would die, how will accept me?” They said, “We will accept you as normal applicant”.
I put a lot of evidence before Justice Baumann and before Justice French that I was intentionally discriminated and now, by this amendments made in 2001 by the respondent, it actually it was showed intention further discriminate members of family units, most of them women because when we arrived in Australia, I was in permanent distress. Nobody ask me whether or not I could apply, I have my own claim. They proceed without any information which was set out in my husband’s application. It was pointed clearly that I had my own claim. I would like to be assessed separately from my husband. I would ‑ ‑ ‑
KIRBY J: Yes, but the problem was you filled in the wrong form and that set it down a different path and the issue is ‑ ‑ ‑
MRS DRANICHNIKOV: It is not wrong form.
KIRBY J: ‑ ‑ ‑ is that evidence of discrimination or just a mistake.
MRS DRANICHNIKOV: I filed proper forms but they give ‑ ‑ ‑
KIRBY J: I am looking at the forms in the supplementary book and you filed a form which is appropriate to a form as “a member of the family unit”. It is page 26. That is the form you made instead of filling in the form as a separate application.
MRS DRANICHNIKOV: Yes, I understand, your Honour. But by clause 866 the respondent should have to file for Part C with all refugee claims but they failed to do that. So I was included in my family unit but they failed to…..my claim for refugee status because regulations – Schedule 2, it is misleading. It is actually overriding that Act. The respondent uses the Migration Regulations clause 866 overriding the Act. In your matter which was heard by you, your Honour, it was matter Applicant S191, it was clearly shown that the Migration Regulations, they are not consistent with the Act because in any way for satisfying to be an applicant for protection visa, whether or not I am separate or whether or not I am family member, every member have to ‑ ‑ ‑
KIRBY J: I agree with you that a person, male or female, heterosexual or homosexual, that has nothing to do with the case, who makes an application should be heard on their own merits, subject to the law. I agree with that, but the problem is that in your case you filled in the wrong form and that sent it on a particular path and if we are to deal with issues of discrimination, we would want to deal with it with a case that does not have that complication. You created that complication at the beginning and it creates a problem for saying that the officials were discriminating against you as distinct from simply dealing with the application as you put it before them.
We would not take it on to deal with such a question where there is a factual issue which has been determined against you. It is just not a good case for us to be dealing with that sort of question because there is a factual impediment.
MRS DRANICHNIKOV: So, your Honour, I am married woman, so I should be deprived from any right to be assessed ‑ ‑ ‑
KIRBY J: No ‑ ‑ ‑
MRS DRANICHNIKOV: Yes, that is right.
KIRBY J: ‑ ‑ ‑ if you fill out the form correctly, you would be processed in the right way, or at least it is not possible on the basis of the form that you filled in to make a clear case that there is discrimination. It is a matter where there are different points of view, they have been thought out, determined by Justice French in a very thorough judgment and it is just not a case where you can say that discrimination is established.
MRS DRANICHNIKOV: It was clear case of my discrimination because the ‑ ‑ ‑
KIRBY J: I know you say that but that was not accepted.
MRS DRANICHNIKOV: ‑ ‑ ‑ the Minister by Migration Regulations and Act have to create the approved form. I filled this form in accordance with instructions.
KIRBY J: You filled it in as a member of the family unit, as distinct from ‑ ‑ ‑
MRS DRANICHNIKOV: That is right.
KIRBY J: ‑ ‑ ‑ you did not put in a claim on your own behalf as a separate claim of a separate individual seeking to be assessed and judged as a separate application.
MRS DRANICHNIKOV: I have to be assessed as a piggyback of my husband. It does not matter that I pointed that I had my own ‑ ‑ ‑
GUMMOW J: No, you are just becoming repetitious, Mrs Dranichnikov, and the red light is on. Is there anything more you wish to add that is new?
MRS DRANICHNIKOV: Actually, it is statistics. It says that more than 80 per cent of main applicants, they are male, and I know many women they are suffering because the respondent ‑ ‑ ‑
KIRBY J: I can tell you this, Mrs Dranichnikov, that if a case came before me where I thought there was an arguable instance of discrimination against women on the basis of their separate right as a human being to be judged on their refugee status as individuals and humans, I would be the first to grant special leave. But the problem in your case is you filled in the wrong form and it went down the wrong path and that does not amount to discrimination. That just amounts to a mistake on your part, maybe on the part of others, but it is not discrimination.
MRS DRANICHNIKOV: Excuse me, your Honour, I filled the application in 2000. I filled right form. I filed my refugee claim ‑ ‑ ‑
KIRBY J: You filled in the application as a member of the family unit.
MRS DRANICHNIKOV: No, I filed my own application. It is matter about my application which I lodge in 2000; this is matter about discrimination. I am not going to say about 1997 when I was included, but when I lodged my application in my own right I was refused by reason because I was included as a married woman, I was included in my husband’s matter and I should totally depend of my husband’s application. So, your Honour, I was deprived of my right to seek asylum in my own right because I am married woman.
KIRBY J: But your case was still being processed in respect of the claim that you had originally put in as a member of the family unit of your husband.
MRS DRANICHNIKOV: No, it cannot be because the High Court of Australia ‑ ‑ ‑
KIRBY J: That was the one that came before this Court.
MRS DRANICHNIKOV: You referred to the Refugee Review Tribunal, but Refugee Review Tribunal cannot cure the mistake of the Department, so I cannot be assessed in the Refugee Review Tribunal because I had no Part C in my own right in 1997. So it is number of authorities of the Full Court of the Federal Court, it clearly states if my matter will be proceed, not my matter, it is my husband’s matter, the Tribunal nothing can do with me. I have my own right to be assessed under the Refugee Convention.
GUMMOW J: Yes, thank you.
MRS DRANICHNIKOV: Actually, it is ‑ ‑ ‑
GUMMOW J: The red light has been on for some minutes now, Mrs Dranichnikov.
MRS DRANICHNIKOV: Sorry, your Honours.
KIRBY J: I would just like to ask Ms Ford a question. Ms Ford, the suggestion is that discrimination could be inferred contrary to the conclusion of Justice French on the basis that subsequently to the original application a separate application was lodged by Mrs Dranichnikov and that this ought then to have been processed as a separate application on her behalf in accordance with what the Full Court determined was her right and what prima facie one would think would be her right. Now, what is the flaw in that contention?
MS FORD: Your Honour, because her original application in her own right of August 2000 was rejected on the basis of the Department’s understanding of the law, her application fee had been refunded ‑ ‑ ‑
KIRBY J: This was before the Full Court decision?
MS FORD: Before the Full Court – had been refunded. So after the Full Court handed down its decision in the middle of 2001, she then had an opportunity to re-enliven that application of August 2000 and some four letters were written to her asking her to send in her $30 and it would be processed.
KIRBY J: But instead of doing that ‑ ‑ ‑
MS FORD: She did not.
KIRBY J: ‑ ‑ ‑ she latched onto what she was asserting was an evidentiary foundation for a claim of discrimination which you say and – rather, which
Justice French says and you support, was knocked on the head because (a) in her initial application she put the application in and proceeded with it as a member of her husband’s family unit and, when she put in a second application, it was rejected because at that stage the departmental officers were still acting on a misunderstanding of the law which was corrected by the Full Court and that she then had the opportunity to have her application processed in her own name and, presumably, if there has been no intermediate change of the law, still has that right, but, instead, she has proceeded claiming discrimination on the grounds of her gender and marital status.
MS FORD: Yes, your Honour. Even in the husband’s application of 1997 she still could have made her own claims in her own right within that application by filling out Part C, but she did not, she filled out Part D.
GUMMOW J: Yes.
KIRBY J: Yes, very well.
MS FORD: She was merely relying upon being the spouse of someone with a claim.
KIRBY J: Yes, it sounds a long way short of discrimination.
MS FORD: It is our submission there was just no evidence ‑ ‑ ‑
KIRBY J: That is what has been found
GUMMOW J: Yes, thank you.
MRS DRANICHNIKOV: If ‑ ‑ ‑
KIRBY J: Believe me, Mrs Dranichnikov, there is no Justice in the country who is more sensitive to issues of discrimination than I and if I considered there was the slightest chance that you had been the subject of discrimination and wrong grounds of decision on the basis of discrimination, I would be most vigilant to see if that was so in this case, but I do not believe that that is the case and I do not believe that you have established any basis to challenge Justice French’s decision to the contrary.
MRS DRANICHNIKOV: Your Honours I was discriminated because I am woman, I am married woman and because I was included in my husband’s application for protection visa ‑ ‑ ‑
GUMMOW J: Now, look it is really a question of replying to anything that has been just said by Ms Ford. That is what a reply is. What do you want to say, if anything, in reply to what has just been said by the counsel for the Minister?
MRS DRANICHNIKOV: Sorry, your Honour.
GUMMOW J: It is not a question of repeating what you have said before. We know that. What do you want to say that is new in response, if anything, to what has just been said by counsel for the Minister, who you just heard responding to a question from his Honour?
MRS DRANICHNIKOV: In this response, your Honours, I would like to refer you to the affidavit filed on 9 December 2002.
KIRBY J: Where do we find that?
MRS DRANICHNIKOV: Actually, I have got this affidavit.
GUMMOW J: What date?
MRS DRANICHNIKOV: I have got this actually, this ‑ ‑ ‑
GUMMOW J: Is this a new affidavit?
MRS DRANICHNIKOV: No, it is old affidavit. I just put for convenience of the Court.
KIRBY J: What page do we go to?
MRS DRANICHNIKOV: Page 10 of this book. I got the letter from the respondent and last paragraph it says:
I note that you are included in your husband’s application which is currently before the High Court and as such you have been granted a Bridging visa allowing you to remain in Australia until that litigation matter is resolved.
So the respondent now applies this new amendments under section 48A of the Migration Act against me because it is section 48A, if we have a look in this section, it clearly says that member of the family unit would be deprived if the main applicant holds a protection visa.
KIRBY J: But we are looking backwards to whether there was an error in Justice French’s decision at the time Justice French made his decision, not what has happened subsequently.
MRS DRANICHNIKOV: That is right, that the respondent failed to consider that I am a woman and by the gender guidelines they have to be sensitive and ask whether or not I have my own refugee claim to be assessed in my own right. They failed to do that. They failed to hold the interview which is compulsory for the officer of the Department of Immigration. They failed to take into consideration the information which was put in my husband’s application that I have my own refugee claim to be assessed separately. So now I deprived and I have no rights at all because I am married woman. If my husband would ‑ ‑ ‑
GUMMOW J: Yes, we have heard that, Mrs Dranichnikov. The red light is on. Sit down if you would.
MRS DRANICHNIKOV: Thank you, your Honours.
GUMMOW J: The Federal Court constituted by Justice French was exercising the jurisdiction of the Full Court of the Federal Court of Australia. His Honour dealt comprehensively with the grounds of appeal from the decision of the federal magistrate. No error has been demonstrated in the reasons of Justice French. There are no prospects of success in any appeal to this Court. Accordingly, special leave is refused and refused with costs.
We will now proceed to the next application. Yes, Mrs Dranichnikov.
MRS DRANICHNIKOV: Thank you, your Honours.
GUMMOW J: We come to the paragraph, I think, 11, on page 4 of the written material you handed up this afternoon, the outline of submission.
MRS DRANICHNIKOV: Yes.
KIRBY J: Could we just have a few minutes to read the additional paragraphs.
GUMMOW J: Yes, Mrs Dranichnikov.
MRS DRANICHNIKOV: Thank you, your Honours. By my second application ex parte, matter B56 of 2002, I am seeking from this Court to grant me order nisi or to refer to the Full Court – to be short, I am seeking actually a writ of mandamus, prohibition and certiorari against the respondent’s decisions which he made on 13 September 2000 – and 14 November 2002. The first decision is concerning – you can find in application book volume 2.
GUMMOW J: Page?
MRS DRANICHNIKOV: Page 267A.
KIRBY J: Which page?
MRS DRANICHNIKOV: Page 267A.
KIRBY J: Page 257.
MRS DRANICHNIKOV: Page 267, sorry, your Honours. This is a letter from the respondent. This letter was referred to me, and they asked me to pay the application fee for the application for protection visa. I can explain you, because in October 2001 the respondent made new amendments into the Migration Act into section 36 which implemented principle family unity. I ask the respondent to postpone determination of the application, because if my husband would be granted the protection visa, in that case I would be granted also.
GUMMOW J: Now, wait a minute. I am looking at the draft order nisi page 240 of application book volume 1.
MRS DRANICHNIKOV: Page 240, yes, I found, your Honour.
GUMMOW J: Yes. Now, that refers to an order made by the Federal Magistrate on 18 February 2002.
MRS DRANICHNIKOV: Yes, that is right.
GUMMOW J: Where is that? Where do we see that?
MRS DRANICHNIKOV: Actually I would like to refer to my amended application order nisi.
GUMMOW J: Where is that?
MRS DRANICHNIKOV: The last one. It is actually this supplementary book – it is little one, yes – it is page 13.
KIRBY J: Page 13, is it?
MRS DRANICHNIKOV: Yes, thank you. I amended the second respondent, the Minister for Immigration.
GUMMOW J: Yes, very well. Page 14.
MRS DRANICHNIKOV: Yes, 14, yes.
GUMMOW J: 18 February 2002.
MRS DRANICHNIKOV: Yes. It is – I am sorry.
GUMMOW J: Page 14.
MRS DRANICHNIKOV: Page 14, yes.
GUMMOW J: “Orders made by the Respondent on 18 February 2002”, do you see that?
MRS DRANICHNIKOV: It was order made by Federal Magistrate Baumann.
GUMMOW J: Yes, that was the subject of the appeal to Justice French, was it not?
MRS DRANICHNIKOV: Yes, that is right. I withdraw the first respondent, because his decision was subject of appeal so I am not going to pursue, because it will be futile anyway. So I am going to say about the second respondent in my amended ‑ ‑ ‑
GUMMOW J: That is the Minister.
MRS DRANICHNIKOV: ‑ ‑ ‑ yes, that is right – in my amended draft of order nisi, which was presented in the last affidavit.
GUMMOW J: And what is the decision of the Minister of 23 April 2002?
MRS DRANICHNIKOV: The decision of the Minister ‑ ‑ ‑
GUMMOW J: Where do we find that?
KIRBY J: It is dealt with on page 17, is it? Is that the reference that you are making? You say a decision on:
13 September 2002 and on 14 November 2002 concerning an obstruction the applicant from the determination for a refugee status in [your] own right ‑ ‑ ‑
MRS DRANICHNIKOV: That is right.
KIRBY J: But he would be acting on the basis of the decision of Justice French refusing to uphold the challenge from the decision of the Federal Magistrate. So the Minister would be acting within his obligations by acting in conformity with the decision of Justice French, which this Court has just declined to interfere in.
MRS DRANICHNIKOV: Your Honour, with respect, the Full Federal Court constituted by three judges is a binding authority for his Honour Justice French, because Full Federal Court was constituted by one judge and the Full Federal Court, they made their decision stating that if the Minister contention are right, it would be discrimination against members of family units. Can I show you ‑ ‑ ‑
KIRBY J: I may be missing something, but the Full Court of three judges was dealing with the legal arguments concerning the meaning of section 48A, I think ‑ ‑ ‑
MRS DRANICHNIKOV: That is right.
KIRBY J: ‑ ‑ ‑ and they held in a particular way, which was the way you were arguing, but Justice French then came to look at whether or not there was discrimination in your case and he held there was not because of the considerations which we have just dealt with in the appeal application.
MRS DRANICHNIKOV: Yes, I understand, your Honour, but now we are talking not about discrimination, about section 48A, which the respondent amended in 2001 and he also amended section 36 implemented by principle of family unity.
GUMMOW J: He did not amend anything. Parliament changed the law, if need be.
MRS DRANICHNIKOV: Yes, that is right, with respect, Parliament changed the law and the Parliament amended the section 36. I can refer to this section. It clearly says that ‑ ‑ ‑
GUMMOW J: Yes, well, what follows from that? The Parliament has changed the law.
MRS DRANICHNIKOV: That is right.
GUMMOW J: Well, how can you complain of that? Do you complain of that?
MRS DRANICHNIKOV: I am not going to complain about government. We have to respect the government because, whether bad or good government, we have to respect this government.
KIRBY J: It is not the government. In our country it is the Parliament. Government is the executive. Parliament is elected by the people.
MRS DRANICHNIKOV: Yes, but anyway authority it would be said. But this section 48A does not say clear by unmistakeable and ambiguous language that the member of family units should be deprived of their own right to apply and – seek asylum and apply for protection visas. It is section 48A. It does not say clearly. I have put a lot of precedents that – so the respondent uses his section 48A ‑ ‑ ‑
KIRBY J: Now, where do we find the Minister’s decisions of 13 September and 14 November that you are complaining about? Where do they exist?
MRS DRANICHNIKOV: It is actually in last affidavit in this little supplementary book, page 10. It states that now new requirements of section 48A prohibited me from applying in my own right. It is actually – it says in paragraph 1, 2, 3 – 4:
Any subsequent application made by you, provided the validity requirements as set out in Section 46 of the Migration Act are met, will be considered valid at the time of lodgement.
I note that you are included in your husband’s application which is currently before the High Court and as such you have been granted a Bridging visa allowing you to remain in Australia until that litigation matter is resolved.
So I am asking this Court to grant for me order nisi to show cause why the respondent – to show cause why a writ of prohibition and certiorari should not be issued out of this Court ‑ ‑ ‑
GUMMOW J: To do what? To achieve what? To produce what result?
MRS DRANICHNIKOV: Do not prohibit me, do not restrain me, from applying in my own right for protection visa, because section 48A clearly does not say that if I was included in my previous husband’s application, I should be deprived of my basic human right to seek asylum in Australia.
KIRBY J: This may be a misunderstanding, but as I understand the Minister’s letter, the letter from the case officer, he says, “I note that you have an application pending in your husband’s claim.” Well, that we understand; that does exist.
MRS DRANICHNIKOV: It is not my application; it is my husband’s application.
GUMMOW J: Yes, yes, yes.
KIRBY J: But your husband’s claim has included a claim for your daughter and for yourself.
MRS DRANICHNIKOV: It is not my application for protection visa.
KIRBY J: Well, it may not be, but it is included ‑ ‑ ‑
GUMMOW J: Do not trifle with us please, Mrs Dranichnikov.
MRS DRANICHNIKOV: How about clause 866 of the Migration Regulations, Schedule 2, which says ‑ ‑ ‑
KIRBY J: But, as I understand it, what the Minister says through his counsel and the solicitors on the record, they say, in effect, “We are rather surprised. The Full Court said that Mrs Dranichnikov could bring her own claim in her own right and she still has not done so.” And you have had letters telling you can do so and instead you have not paid the fee and you have not brought that claim in your own right. As far as I know, there is nothing that prevents you from doing so now.
MRS DRANICHNIKOV: It is principle family unity, which set out in the handbook on determination of refugee status says the principle of family unity should be operated in the favour of dependants, but not against them. So, it is my husband would be granted refugee status, I should be granted, but if my husband would not be granted refugee status, nothing can prevent me from applying my application in my own right, but ‑ ‑ ‑
GUMMOW J: Just slow down a minute, please. The whole of this debate is premature. It may be that following the decision of the Full Court of this Court, your husband’s application, to which you are attached, to use that word, will be successful. If that is so, why have this debate? It is premature.
MRS DRANICHNIKOV: If not, your Honour ‑ ‑ ‑
GUMMOW J: Of course, it can be looked at then, but we do not sit here to decide questions that do not necessarily and immediately arise.
MRS DRANICHNIKOV: Your Honour, it concerning many thousand people, most of them women.
GUMMOW J: No, we are not worried about thousands of people. We are not worried about thousands of people; we are worried about you and your application.
KIRBY J: Your case is just a bit complicated because of your husband’s claim in which you are included and which your husband succeeded.
MRS DRANICHNIKOV: Why I should depend of my husband’s fate? Why? Because if my husband die, I ‑ ‑ ‑
GUMMOW J: But he is not dead.
KIRBY J: He is sitting there at the Bar table and looks ‑ ‑ ‑
GUMMOW J: He is there and he looks very well.
KIRBY J: ‑ ‑ ‑ very healthy and well nourished.
MRS DRANICHNIKOV: So, the respondent encourage people split families. I know, I was thinking about to split my family.
GUMMOW J: Your family is not split either, so this is just becoming ridiculous, if I may say so.
MRS DRANICHNIKOV: It is not ridiculous, your Honour. It is so sad.
GUMMOW J: No, thank you.
MRS DRANICHNIKOV: It is pretty sad that if woman was included, even she had and she has her own claim – I refer to many authorities, that she has no right again to apply for refugee status in her own right. It what happened with….. It was heard by this Full Court, Applicant S136, and, your Honour, you yourself said that for purpose to satisfy criteria for applicant of a protection visa to be a member for protection visa, there clause 866 or in other clause, the same, for temporary applicants. They are members of family units. They have to satisfy – have to make your own claim. You by yourself with Justice Gaudron said that. It is rigidity of the Migration Regulations and Migration Act. It was made intentionally to deprive of married women of asylum seekers from their own right ‑ ‑ ‑
KIRBY J: Well, as you pointed out, most asylum seekers, refugee applicants, are male, and many of them have no spouse or partner. Some of them do. In many, many of those cases, and many such people coming from more traditional countries, the wife or spouse is quite happy to be dealt with in her husband’s application and has no separate claim. But where she has a separate claim, or wishes to pursue it, as far as I am concerned, she should be entitled to do that.
MRS DRANICHNIKOV: But I was deprived from my beginning. It was what the justices ‑ ‑ ‑
KIRBY J: Well, we have been through there, we have been down that track ‑ ‑ ‑
MRS DRANICHNIKOV: Can I explain please, your Honour?
KIRBY J: ‑ ‑ ‑we will not go back there, Mrs Dranichnikov. You filled in the form incorrectly.
MRS DRANICHNIKOV: Your Honour, it was sophisticated trick which was created. They are immediate sub-class of family members.
KIRBY J: I know that and you won that appeal. You had a big win. Your husband has had a big win and you have had a big win, but this is an application which may never arise, because your personal application – I know you want to fight for the cause of women, I understand that, to be separately dealt with as human beings and as applicants, I understand that, but your application has been included in your husband’s. It may be successful before the Tribunal, in which event we do not have to come to consider this application now.
MRS DRANICHNIKOV: So I have no right in this country ‑ ‑ ‑
GUMMOW J: No, Mrs Dranichnikov.
MRS DRANICHNIKOV: ‑ ‑ ‑to be assessed in my own right. Unfortunately ‑ ‑ ‑
KIRBY J: You have plenty of rights and still have them.
GUMMOW J: And you seem to be exercising them very volubly and very persistently, if I may say so.
MRS DRANICHNIKOV: I can see that if I was included…..for example, I split my family, what happen to me? Can you ‑ ‑ ‑
GUMMOW J: You have not split your family and we are not here to debate these possibilities. Now, will you limit yourself ‑ ‑ ‑
MRS DRANICHNIKOV: Because I am married woman.
GUMMOW J: ‑ ‑ ‑ will you limit yourself, please, to dealing with these matters specifically. And I will not raise my voice to you again, I will simply withdraw your leave to appear. Now, what else do you want to say?
MRS DRANICHNIKOV: Nothing else. Actually, I would like to show you – refer to my list of authorities and legislation.
GUMMOW J: Yes, we have looked at that.
MRS DRANICHNIKOV: It is page 79. It is an explanatory statement for Statutory Rules 1995 No 268. It says ‑ ‑ ‑
KIRBY J: Yes, we have seen all of these and you have put your case together, if I can say so, better than some qualified lawyers put their case together, as your husband did in his case in the Full Court and he won, but that does not remove the fact that your personal application may never need to be decided, and that is what we have to consider, because we have lots of people. You have sat here, this is the last application, at 3.30 pm on a day that began at 9.30 am, with lots of people who are trying to come into this Court. We have to decide the priorities ‑ ‑ ‑
MRS DRANICHNIKOV: Yes, I understand, your Honour.
KIRBY J: ‑ ‑ ‑ and your case may never have to be decided, your personal case.
MRS DRANICHNIKOV: I understand.
GUMMOW J: Thank you.
MRS DRANICHNIKOV: I understand that I have no right in this country.
KIRBY J: No, you ‑ ‑ ‑
GUMMOW J: No, you do not have any right – you should not say that.
KIRBY J: It is not true and your husband ‑ ‑ ‑
MRS DRANICHNIKOV: Why? I was deprived, your Honours ‑ ‑ ‑
GUMMOW J: It is not true.
MRS DRANICHNIKOV: Why? By what reason? Because I am woman, because nobody asked me whether or not I have my own claim.
GUMMOW J: No, no. No, you are becoming emotional and incoherent and irrational.
MRS DRANICHNIKOV: No, because different structure, we are different.
GUMMOW J: Please sit down – please sit down, Mrs Dranichnikov.
MRS DRANICHNIKOV: Thank you, your Honours.
KIRBY J: Ms Ford, may I just ask you a question again to clarify something? Is the position still that Mrs Dranichnikov is entitled in law to make a separate claim, so long as she lodges the claim, fills in the form correctly and supplies the fee of $30 to make such a claim? Or is she in law, by reason of any supervening amendment or otherwise to the Migration Act, prevented from doing so whilst her husband’s application is before the Tribunal?
MS FORD: Because of the amendments that came in after her success before the Full Court, whilst she could lodge an application and pay the fee, she would not be successful, and that is why the Minister was keeping open the application she had made in August 2000 saying, “If you use this vehicle” ‑ ‑ ‑
GUMMOW J: “Please pay the fee.”
MS FORD: ‑ ‑ ‑“please pay the fee, use this vehicle, you will get through even though there have been these amendments.” And we asked four times in writing and this last letter of 14 November is to say, “Look, we have given you deadline after deadline. You haven’t paid the fee. Now, we are not going to consider that application of August 2000.”
KIRBY J: Yes.
GUMMOW J: So, it depends on what happens consequent upon our Full Court decision?
MS FORD: Yes.
GUMMOW J: Thank you. Yes, Mrs Dranichnikov.
MRS DRANICHNIKOV: Tomorrow I file the application to the Department, should I go again to decide this issue? Because I would be deprived again, because I was – somewhere in 1990 years was included ‑ ‑ ‑
GUMMOW J: What we have tried to explain to you and what you do not seem to understand – and I think your husband may understand it – is that the application today is premature, as we see it now, because it may turn out, following the Full Court decision, that his application is successful.
MRS DRANICHNIKOV: If his application would be successful, I would not satisfy criteria clause 866, because, in that terms I have to make my own claim for under the Convention. Can you see the rigidity how the respondent uses this sophisticated tricks to deprive women?
GUMMOW J: I do not think that is correct.
MRS DRANICHNIKOV: Yes.
MS FORD: Could I just interrupt ‑ ‑ ‑
GUMMOW J: Yes.
MS FORD: ‑ ‑ ‑and say that if Mr Dranichnikov’s application is successful, Mrs Dranichnikov will also be successful in getting a protection visa.
GUMMOW J: Yes, that is as we understand it.
KIRBY J: That is what we understood too.
GUMMOW J: And that has been said in the High Court by the Minister’s counsel, Mrs Dranichnikov, so stop worrying about that point.
MRS DRANICHNIKOV: Yes, thank you very much. Yes, it would be fine if the counsel for the Minister says, because I am very worried because it is the rigidity of the regulations and the Act.
GUMMOW J: Well, you have heard what has been said.
KIRBY J: It is on the record.
GUMMOW J: We will take a short adjournment.
AT 3.28 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.35 PM:
GUMMOW J: This application for orders nisi for relief under section 75(v) of the Constitution was heard immediately after the application for special leave in matter No B105 of 2002 and must be understood in that light.
In the course of this present hearing the applicant accepted the futility of her application in respect of the decision of the federal magistrate and withdrew that part of her application. That left the application for orders nisi against the respondent Minister for Immigration, Multicultural and Indigenous Affairs.
Counsel for the Minister made it clear that if, following the decision of the Full Court of this Court, Mr Dranichnikov succeeds before the Refugee Review Tribunal, Mrs Dranichnikov, the present applicant, will be entitled to the benefit of that decision.
In the light of that concession, which is properly made, the present application as formulated in the manner I have indicated is premature and, accordingly, should be refused.
We are minded presently, Ms Ford, to make one order as to costs, namely on the special leave application, unless we hear to the contrary.
MS FORD: No, thank you.
GUMMOW J: Very well. We make no separate order for costs of the application under 75(v).
KIRBY J: I think we should thank the interpreter for standing by in case he was needed. It is always the case that when you do not have an interpreter they are needed, so it is much appreciated that you were here today.
GUMMOW J: Yes, we thank you, Mr Interpreter.
AT 3.38 PM THE MATTERS WERE CONCLUDED
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