MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
Dranichnikov v Minister for Immigration and Multicultural Affairs
[2003] HCA 26 8 May 2003 B96/2000
ORDER
Application dismissed.
On appeal from the Federal Court of Australia
Representation:
S Dranichnikov appeared in person
J A Logan SC with R M Derrington for the respondent (instructed by Australian Government Solicitor)
HIGH COURT OF AUSTRALIA
GLEESON CJ, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ORS RESPONDENTS
EX PARTE SERGEY DRANICHNIKOV APPLICANT/PROSECUTOR
Re Minister for Immigration and Multicultural Affairs; Ex parte Dranichnikov
8 May 2003 B44/2001
ORDER
1. Order absolute for a writ of certiorari directed to the fourth respondent quashing the decision of the fourth respondent in matter V97/06976 dated 11 August 1998.
2. Order absolute for a writ of prohibition directed to the first respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the first respondent by his delegate the third respondent dated 20 May 1997.
3. Order absolute for a writ of mandamus directed to the fourth respondent requiring it to review according to law the decision of the first respondent by his delegate the third respondent dated 20 May 1997.
4. First respondent to pay the costs of the prosecutor.
Representation:
S Dranichnikov appeared in person
J A Logan SC with R M Derrington for the respondents (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Dranichnikov v Minister for Immigration and Multicultural Affairs
Re Minister for Immigration and Multicultural Affairs; Ex parte Dranichnikov
Immigration – Refugees – Protection visa – Fear of persecution for reason of membership of particular social group – Whether Refugee Review Tribunal considered applicant was member of broader class of social group than that claimed – Whether Tribunal misunderstood and failed to address applicant's case – Whether constructive failure by Tribunal to exercise jurisdiction – Whether failure to accord natural justice.
Practice and procedure – High Court – Concurrent applications for special leave to appeal and for constitutional writs – Discretionary considerations in the grant of constitutional relief – Whether availability of appeal a discretionary bar to constitutional relief – Relevance of repeal of applicable legislation to the form of relief provided.
Constitution, s 75(v). Migration Act 1958 (Cth), s 476.
GLEESON CJ. I regret that I am unable to share the conclusion reached by the other members of the Court, not because of any disagreement on a matter of principle, but because I have a different understanding of the reasons of the Refugee Review Tribunal ("the Tribunal"), whose decision is under review. The facts are set out in the other judgments. Since mine is a dissenting view, on a purely factual issue, I will state my reasons briefly.
It is contended that, so far, all who have…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Case
[2003] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court considered applications by Mr Dranichnikov for special leave to appeal a decision of the Full Court of the Federal Court and for prerogative relief under section 75(v) of the Constitution. The central question was whether the Refugee Review Tribunal had constructively failed to exercise its jurisdiction in reviewing Mr Dranichnikov's application for a protection visa. Mr Dranichnikov had arrived in Australia with his wife and daughter and their application for a protection visa was refused by a delegate of the Minister. The Tribunal affirmed this decision, despite finding that Mr Dranichnikov had credible accounts of police inaction and oppression in Vladivostok, Russia, and had suffered a serious assault in February 1994. The Tribunal concluded that his fear of harm from criminal activities by unknown persons did not relate to a "Convention reason" and that he was not persecuted for reasons of his membership of a particular social group, namely businessmen in Russia.
The legal issues before the High Court included whether the Refugee Review Tribunal had misunderstood and failed to address Mr Dranichnikov's case, and whether it had constructively failed to exercise its jurisdiction or failed to accord natural justice. The Court also considered the discretionary considerations relevant to the grant of constitutional relief, particularly whether the availability of an appeal could act as a bar to such relief, and the relevance of the repeal of applicable legislation to the form of relief granted. The Federal Court had previously dismissed Mr Dranichnikov's application for review, finding that his arguments largely constituted impermissible attempts to impeach the Tribunal's factual conclusions.
The High Court dismissed Mr Dranichnikov's applications. The Court noted that the Federal Court had been presented with numerous untenable points by the applicant, who was unrepresented. While the Federal Court had considered whether the Tribunal had erred in failing to address whether Mr Dranichnikov's involvement in protest meetings about corruption was a manifestation of political opinion, it determined that this was not central to his case, which was framed in the context of his exposure to risk as an "entrepreneur" and thus invoked the "particular social group" ground. The High Court found no error of law in the Tribunal's decision and therefore no basis for granting the special leave to appeal or the prerogative relief sought.
Orders
Orders of the court
Application dismissed.
Background
Background to the litigation
The applicant, Mr Dranichnikov, seeks special leave to appeal against a decision of the Full Court of the Federal Court, and prerogative relief under s 75(v) of the Constitution. The question which his application under s 75(v) raises is whether, in substance, the Refugee Review Tribunal ("the Tribunal") failed to exercise jurisdiction to review a decision of the delegate of the Minister. If special leave were granted the applicants would urge that the Federal Court erred in dismissing the applicant's application for a review of the Tribunal's decision under s 476 of the Migration Act 1958 (Cth) ("the Act").The facts Mr Dranichnikov arrived in Australia on 8 January 1997 with his wife Olga Dranichnikov and their daughter Maria Dranichnikov. On 20 May 1997, an application that they made on 2 April 1997 for a protection visa under the Act was refused by a delegate of the Minister for Immigration and Multicultural Affairs. They sought a review of the refusal by the Tribunal. On 11 August 1998, the Tribunal decided to affirm the delegate's decision. In doing so it made a number of findings in the applicant's favour.The findings of the Tribunal Both Mr Dranichnikov and his wife gave credible accounts of their experiences in Vladivostok in Russia. They described, accurately it follows, several instances of police inaction after crimes had been committed and of oppression by police officers. Mr Dranichnikov was the General Manager of a company that provided real estate and legal services in respect of property transactions in the city. The business of the company was not a large one. It had a turnover of about $A15,000 a month and employed only eight people. Before February 1994, Mr Dranichnikov had tried to interest the authorities in ways and means of preventing attacks, including murderous ones, on entrepreneurs. These had been increasing in the latter part of 1993 and in early 1994. His efforts extended to the making of representations to the Mayor of Vladivostok, and attending public meetings to draw attention to endemic corruption and lawlessness in the city. Another of his endeavours, and one which was successful, was the formation of a committee for the registration of titles. His efforts apparently provoked a serious assault upon him in which he was stabbed at his home in Vladivostok in February 1994. He was so severely injured that he had to be admitted to hospital. The Tribunal also accepted Mr Dranichnikov's evidence that there was an inability and unwillingness on the part of the security forces within Russia to deal with crime. In late February or early March 1994, under duress by police officers in Vladivostok, he signed a letter requesting discontinuation of the investigation into the assault upon him. Mr Dranichnikov has a subjective fear of returning to Russia: that fear is of physical harm from criminal activities by unknown persons. But the fear, the Tribunal held, did not relate to a "Convention reason": there was no indication that any persecution that he has suffered was "for reasons of" his membership of a particular social group constituted by businessmen in Russia. Neither Mrs Dranichnikov nor their daughter advanced any separate case for the grant of protection visas.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GUMMOW AND CALLINAN JJ
(dissent)
KIRBY J
HAYNE J
It was on this basis that the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.The decisions of the Federal Court The applications for judicial review of the Tribunal's decision were heard in the Federal Court first by the primary judge (Kiefel J) and subsequently by a Full Court. At both levels, the applicant failed. Most of the issues addressed by the primary judge are no longer in contention. Perhaps because the applicant represented himself, he did not focus on the point that was ultimately argued in this Court. Instead, he raised sundry points of marginal or no significance, all of which failed. From the reasons of the judges of the Federal Court, it appears that the applicant contested the factual conclusions of the Tribunal relating to the cause of the fear of harm described by him in his application. Unsurprisingly, advanced in this way, the primary judge[20] and the Full Court dismissed the complaint as an impermissible attempt on the part of the applicant to impeach the Tribunal's decision for an error of fact – a ground not amenable to review under s 476(1) of the Act. Presumably because the applicant failed to raise the point submitted in this Court, there was no consideration of whether an error of law, cognisable in the Federal Court within s 476(1), had been made out warranting the setting aside of the decision of the Tribunal. At first instance, that decision was treated as no more than a decision on its own facts, open to the Tribunal on the evidence disclosed in the record.[20]Dranichnikov v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 482 at 490-491 [34]. Like the primary judge, the Full Court appears to have been distracted by a multitude of untenable points argued by the applicant. One of these was described, fairly, as a "quite ridiculous quibble"[21]. Others were rejected as "slight" and "of no significance"[22]. Unfortunately, this is what commonly happens when litigants, unfamiliar with the intricacies of the law, are obliged (or choose) to present their cases without legal representation. The risk is that the compounded effect of so many irrelevancies and false grounds will divert the court and obscure a viable ground that passes unnoticed.[21]Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [40].[22][2000] FCA 1801 at [47]. In the Full Court, presumably in response to a complaint raised by the applicant, the judges considered whether the Tribunal had erred in failing to address whether the applicant's "involvement in protest meetings about corruption and illegality" was a "manifestation of political opinion"[23]. Their Honours determined that "such involvement was not central to [the applicant's] case"[24] which was put in "the context of his exposure to risk of harm as an 'entrepreneur'"[25], thereby invoking the Convention ground of "particular social group" rather than political opinion. [23][2000] FCA 1801 at [49].[24][2000] FCA 1801 at [49].[25][2000] FCA 1801 at [49].