VNAG v Minister for Immigration
[2004] FMCA 354
•9 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VNAG v MINISTER FOR IMMIGRATION | [2004] FMCA 354 |
| MIGRATION – Refugee Review Tribunal – protection visa – well-founded fear of persecution – for reason of membership of particular social group. |
Migration Act 1958, ss.65, 474
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) 195 ALR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476,
195 ALR 24
Minister for Immigration, Multicultural and Indigenous Affairs v Rajamanikkam (2002) 190 ALR 402
NAAV v MIMIA (2002) 193 ALR 449
Dranichnikov v MIMA Re Minister for Immigration (2003) 197 ALR 389
Applicant Av Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
MIMA v Zamora (1998) 85 FCR 458
Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 (27 May 2004)
| Applicant: | VNAG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 337 of 2003 |
| Delivered on: | 9 June 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 October 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gibson |
| Solicitors for the Applicant: | Victorian Legal Aid |
| Counsel for the Respondent: | Mr C. Horan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 337 of 2003
| VNAG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant, by an application filed on 15 August 2003, seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) made on 30 January 2003, though notified, according to the applicant by letter dated 21 February 2003.
The parties have relied upon written contentions of fact and law. The applicant filed contentions of fact and law on 15 August 2003 and the respondent filed contentions of fact and law on 19 September 2003. The application had originally commenced in the Federal Court of Australia and, by order made in that court on 7 April 2003, it was transferred to the Federal Magistrates Court.
The applicant is a citizen of Russia who had arrived in Australia on 6 February 1998 as a holder of a class TR subclass 676 tourist (short stay) visa which was valid for three months from the date of arrival. On 20 March 1998 the applicant lodged an application for a protection visa.
In a statement in support of his application the applicant claimed that he had been a businessman in Russia and that in August 1996 he had been approached by criminal people with offers to protect his business activity. He claimed that in November 1996 he had been beaten by persons demanding money. The applicant claimed that he went to the authorities and identified the ‘bandits’ and subsequently received threats to withdraw his report to the police. The police file was ultimately closed. The applicant claimed that he had been beaten again at his home in November 1997.
On 27 March 1998 a delegate of the Minister refused to grant a protection visa to the applicant. On 17 April 1998 the applicant applied to the RRT for review of the delegate's decision. In subsequent written submissions and in oral evidence before the RRT the applicant advanced several claims, including that he had been an informant for the interior ministry in March 1996 until the end of 1997 and that he feared being charged with revealing state secrets if he returned to Russia.
The RRT made certain findings including a key finding that there was not a real chance that the applicant would face persecution for reasons of his membership of a particular social group or his imputed political opinion. It is perhaps relevant to set out in full two paragraphs from the RRT's decision which were the subject of significant submissions made on behalf of both parties. The paragraphs, which appear at page 225 of the court book, are as follows:-
“The applicant's adviser's submission also contends that the reporting of a corrupt investigation by the police, believing that it was 'for the benefit of the state' as the applicant perceives, was an action motivated by a political opinion which is held by the applicant and thus he will face persecution because the endemic corruption in Russia leads to regarding the applicant's actions as adverse to the state. The Tribunal does not accept this argument as the very documents presented by the applicant indicate that the authorities did take on board the applicant's concerns and took certain steps to deal with them. The Tribunal notes that the applicant did not take things further of his own volition, ignoring the suggestions of the authorities to pursue the matters in civil courts. The Tribunal accepts that the reporting corruption in a situation where corruption is widespread can be construed as an expression of the political opinion as per the legal authorities cited by the adviser, however, the Tribunal does not accept that there was inaction or unwillingness on the part of the authorities to deal with the issues presented by the applicant. That they were not dealt with in the way the applicant might have wanted is another matter.
In summary, the Tribunal accepts that the applicant was beaten in the course of extortion episodes by the mafia. It finds that the harm suffered by the applicant does not fall within the ambit of the Convention as it was not motivated by one of the convention reasons. The Tribunal does not accept that the applicant belonged to a particular social group or groups as defined by applicant's adviser. The groups postulated do not meet the criterion of being cognizable social groups.”
In the application before the court the applicant has claimed relief upon the following grounds:-
“The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 to grant or refuse the application. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that:
Particulars
(i)The Tribunal failed to consider the Applicant's case as presented and/or address a central element of his claims in that it misunderstood and/or misconstrued a criterion about which it had to be satisfied for the purposes of s.65 being the elements of the Convention ground of membership of a particular social group of Russian businessmen or entrepreneurs, and further or alternatively asked itself the wrong question by reason of its misinterpretation of the elements of the said ground.
(ii)The Tribunal failed to deal with the issue of whether a particular social group of Russian businessmen or entrepreneurs was capable of constituting a particular social group for the purposes of the Convention.”
In support of those grounds the applicant emphasised the concern which he had in relation to what is described as jurisdictional error arising from the grounds to which I referred. Specifically, the concerns raised by the applicant by way of what is described as a principal contention was that there is a jurisdictional error constituted by the failure of the RRT to consider the case as put by reason of its misunderstanding and/or misconstruction of the convention ground of membership of a particular social group which is unprotected by s. 474.
The applicant contended that the breach of an indispensable condition or an essential pre-condition or to an inviolable limitation or restraint upon the power conferred upon the RRT and its jurisdiction is particularised in the following terms:-
“(i)The Tribunal failed to consider the Applicant's case as presented and/or address a central element of his claims in that it misunderstood and/or misconstrued a criterion about which it had to be satisfied for the purposes of s.65 being the elements of the Convention ground of membership of a particular social group of Russian businessmen or entrepreneurs, and further or alternatively asked itself the wrong question by reason of its misinterpretation of the elements of the said ground.
(ii)The Tribunal failed to deal with the issue of whether a particular social group of Russian businessmen or entrepreneurs was capable of constituting a particular social group for the purposes of the Convention.”
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) 195 ALR 1 (SDAV) at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
It was submitted on behalf of the applicant that it is also relevant in the present case to consider the decision of Dranichnikov v MIMA Re Minister for Immigration (2003) HCA 26 (Dranichnikov) and the decisions in SDAV. In the case of Dranichnikov the applicant referred to the following passages:-
“66.This is not an occasion to review the explanation, given by this Court in earlier cases, of the origins, purpose and meaning of the residual category of "particular social group" expressed in the Convention. It is sufficient to say that this residual category was proposed by the Swedish delegation during negotiation of the Convention. The Swedish representative, Mr Petren, stated:
"[E]xperience had shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should be accordingly included."
So it was. It was adopted to ensure that "the Convention would protect persecuted groups of people outside of the bounds of ethnic, religious, or political identity”. The Swedish delegates, in their argument, adverted to well-known examples of social group persecution that had occurred in Eastern Europe following the rise of Communist regimes. Cases in the courts of European nations, parties to the Convention, recognised as falling within the "social group" category quite large classes, many of whose members had resorted to countries of Western Europe in flight from countries of Eastern Europe. Thus, members of the "capitalist class", "independent businessmen" and their families were treated as valid "social groups" for the grant of refugee status to persons fleeing from Eastern Europe. Such categories appear to be precisely what the originators of the "particular social group" category had in mind, although, in later years, the class has developed and been applied more broadly.”
It was submitted on behalf of the applicant that the imperative duty or inviolable limitation in question is imposed by s.65 of the Act which requires a consideration by a decision‑maker of the relevant criteria, and his or her satisfaction or lack of satisfaction in that regard is a condition precedent to a valid decision. It was submitted that an incorrect understanding or construction of a visa criterion on which the RRT was required to be satisfied goes to jurisdiction. The RRT, it was submitted, cannot be said either to be or not be satisfied within the terms of s.65 if effect is not given to criteria because they have been misconstrued, misunderstood or overlooked or consideration has not been given to the case as presented by the applicant. It was submitted that it is now clear that an error of the kind for which the applicant contends, if made good, is jurisdictional and, as indicated, reliance was placed upon the decision in Dranichnikov.
The main thrust of the submissions made for and on behalf of the applicant dealt with the issue of the RRT’s perceived incorrect dealing with the issue of what might be regarded as the social group. In particular the applicant's counsel was critical of the passage cited above from the RRT’s decision where the RRT simply states that it does “not accept that the applicant belonged to a particular social group or groups as defined by applicant's adviser. The groups postulated do not meet the criterion of being cognizable social groups.”
Those two sentences are criticised by the applicant's representative on the basis that the reference to that finding is what might be described as cursory treatment of the issue when seen in the light of the evidence which was then before the RRT. In support of that criticism the applicant's counsel relied upon a passage from SDAV v MIMIA (2003) FCAFC 129 where in that case at paragraph 48 the court states the following:-
“48 This reasoning also addresses the second limb of the Minister's argument. Although the Tribunal specifically addressed the question of whether the appellants could belong to a particular social group it based its decision on reasoning that the High Court has held, in Khawar, to be flawed and which it held in Dranichnikov to amount to jurisdictional error. Indeed, in considering each of SDAV and SBBK the Tribunal appears to have made exactly the `error of law involving an incorrect interpretation of the applicable law' identified by Branson J at first instance in Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190 at 197.”
During the course of submissions counsel for the applicant took the court to various references which appear in the court book to the applicant's membership of a group of businessmen variously described from the material which was either available before the delegate or available before the RRT. It is noteworthy that at page 18 of the court book the applicant in a statement which was before the delegate and which formed part of his application stated the following:-
“I’m the representative of the social-active group of the businessmen who deeply considered the necessity of the changes (perestroika) in Russia and believed to proclaimed slogans and started real business.”
Reference is made to the membership of the group at pages 21 to 22 of the court book. At page 21 the following statement appears in correspondence then forwarded to the respondent by the applicant's migration agents. In the letter dated 19 March 1998 the author states the following:-
“… Our submission in this case is that our client has a well‑founded fear of persecution because of his membership of a particular social group (social active group of businessmen). This case is unlike other cases that deal with the general group of businessmen.
Our client belongs to a social active group of businessmen who deeply oppose the changes in Russia. This group is different in its make‑up because it is confined to a social group of businessmen that is a cognizable group. To identify the membership of the group, it is the social activeness of the business group which makes it a disparate group of businessmen. This group has characteristics which define the group and for those reasons satisfy the definition of social group for the purposes of the refugee convention.
Further reference was made to country information which refers to "Russian entrepreneurs" as the existence of a class. By way of example, at page 59 of the court book the agents then acting for and on behalf of the applicant by letter dated 25 May 1998 addressed to the RRT state the following:-
“… What needs to be established is whether or not 'Russian entrepreneurs' are an identifiable economic class and whether or not belonging to this social group is the only means of ensuring basic subsistence.
On the issue of "Russian entrepreneurs" establishing an economic class, we wish to submit the following: In an article titled 'Russia's new commercial class' by Bill Raisner it states that, 'U.S. companies doing business in Russia today deal more and more frequently with a new class of Russian entrepreneurs and managers ... Russia's new entrepreneurs include wholesale and retail merchants; former state managers who have formed legitimate spin‑offs from larger state‑owned firms; accountants or economists employed by large regional banks; and, most typically, young people who own kiosks, restaurants or small start‑up service and/or manufacturing ventures ... Bias against entrepreneurs runs deep in Russia. Members of Russia's technical and cultural elite, for example, are often inclined to portray the business class as nekulturniy (uncultured) ...
Further in the same letter the authors state, at court book page 60, the following:-
“In classifying the new class as 'Russian entrepreneurs' we seek to define the group as people who organise ‘a business undertaking, assuming a risk for the sake of profit’ (see Collins Dictionary). In doing so, this extricates the 'Russian entrepreneur' from those businessmen who willingly enter into arrangements with the Russian mafia to further their business dealings, both reducing the risk that they will not succeed and in many cases removing the competition. In this sense these businessmen do not meet the requirements of an 'entrepreneur'. These 'businessmen' we hope to show a part of the 'old system' and do not come into the classification of a new class of 'Russian entrepreneurs' ...”
It was submitted on behalf of the applicant that in the reasons for decision the RRT had not properly considered these issues raised for and on behalf of the applicant in the correspondence and documents to which I have referred. Reference was made to further extracts of material which I do not need to incorporate in this judgment. The applicant, however, did rely upon the statement of Kirby J in Dranichnikov where his Honour states at paragraph 66 the following:-
“This is not an occasion to review the explanation, given by this Court in earlier cases, of the origins, purpose and meaning of the residual category of "particular social group" expressed in the Convention. It is sufficient to say that this residual category was proposed by the Swedish delegation during negotiation of the Convention. The Swedish representative, Mr Petren, stated:
"[E]xperience had shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should be accordingly included."
So it was. It was adopted to ensure that "the Convention would protect persecuted groups of people outside of the bounds of ethnic, religious, or political identity”. The Swedish delegates, in their argument, adverted to well-known examples of social group persecution that had occurred in Eastern Europe following the rise of Communist regimes. Cases in the courts of European nations, parties to the Convention, recognised as falling within the "social group" category quite large classes, many of whose members had resorted to countries of Western Europe in flight from countries of Eastern Europe. Thus, members of the "capitalist class", "independent businessmen" and their families were treated as valid "social groups" for the grant of refugee status to persons fleeing from Eastern Europe. Such categories appear to be precisely what the originators of the "particular social group" category had in mind, although, in later years, the class has developed and been applied more broadly.”
It was submitted on behalf of the applicant that the RRT had made only “fleeting reference to the particular social group claim and no reference, detailed or otherwise, to the nature and quality of the material supporting the existence of a particular social group relevant to the primary issue, whether this group is capable of constituting a particular social group for the purposes of the convention.”
It is relevant at this point to set out an extract from the RRT’s decision where the social group had been referred to. At pages 220 and 221 of the court book, the RRT under the heading "Claims and Evidence" states the following:-
“In a submission by the applicant's adviser he states that the applicant has a wellfounded fear of persecution because of his membership of a particular social group, "social active group of businessmen". The applicant's adviser states that this group of businessmen deeply oppose the changes in Russia and that membership of the group is identified by its social activeness [sic] making it a disparate group of businessmen [sic]. The applicant's adviser states that the applicant's problems arose because he did not wish to cooperate with the mafia and that his abhorrence of the criminal element in Russia led to the escalation of the harassment to persecution. He submits that the applicant's past experiences suggest that it is extremely likely that he will be persecuted by the mafia upon his return to Russia and that there is independent evidence to support the contention that there is no protection for persons such as the applicant. This was the applicant's experience in the past, when he had expected to be protected by the police however this was not forthcoming.”
In a submission to the tribunal dated 25 May 1998 the applicant's adviser claims that the applicant belongs to a particular social group, "Russian entrepreneurs," which is a "group of people who organise business undertakings, assuming the risk for the sake of profit". He refers to various articles about Russian businessmen and crime and their relevance to the applicant's particular circumstances. The applicant also provided translations of medical certificates relating to his claims.
It is clear from the extract of the RRT’s decision, together with the conclusion at the end of its decision where it does not accept that the applicant belonged to a particular social group, that the RRT properly summarised the material which had been placed before it by the applicant. The real issue, in my view, turns on the applicant's submissions that the RRT did not properly consider the issue of the social group claim and had only, in a sense, made what was described as either a fleeting reference or had otherwise dealt with that issue in a manner which could be regarded as cursory.
It was further submitted on behalf of the applicant that whilst non‑government treatment of an individual would not necessarily attract the protection sought by the applicant in this visa application, that it would do so if it could be established that in all the circumstances, having regard to the evidence, the government was able to be characterised and the government confronted with behaviour by non‑government individuals which could be said to be uncontrollable or that in the circumstances it was unable to provide appropriate protection in the future should the applicant return to Russia.
The respondent had submitted that in all the circumstances it could not be said that in the present case the RRT had failed to consider the submission regarding the membership of the social group. To that extent it was submitted that this case is distinguishable from the decision of the court in Dranichnikov. It was submitted that in all the circumstances the court should be satisfied in the present case that the RRT has indeed properly considered the principal submission made for and on behalf of the applicant and, unlike the case of Dranichnikov, it could not be said in the present case that the RRT misunderstood the claim and otherwise dealt with the claim that the applicant was a member of a social group, rather as a member of a narrow group of businessmen who had publicly criticised law enforcement authorities for failure to take action against crime and criminals. Therefore, unlike the circumstances in Dranichnikov, it was submitted that the RRT was indeed cognisant of the way in which the claim was presented by the applicant and dealt with it accordingly after reciting the relevant details of the claim set out in the applicant's material. In the written submissions the respondent states the following:-
“The present case is distinguishable from Dranichnikov v Minister for Immigration and Multicultural Affairs in which the tribunal misunderstood the basis of the applicant's claims by treating the applicant as a member of a social group of businessmen or entrepreneurs rather than as a member of a narrower group of businessmen who publicly criticized law enforcement authorities for failing to take action against crime and criminals. In doing so, a majority of the High Court held that the tribunal had misstated and failed to deal with the case presented to it, leading to a denial of natural justice and a constructive failure to exercise jurisdiction.
On the other hand, the tribunal in the present case did not misunderstand the 'particular social group' relied on by the applicant. The tribunal correctly addressed itself to the claim as presented by the applicant and did not fail to deal with any element of those claims. It was open to the tribunal to find that the groups relied on by the applicant were not 'cognizable' as particular social groups for the purpose of the Convention.”
Counsel for the respondent relied upon the High Court decision in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 234, 241, 264 and 266 (Applicant A) and submitted that members of a 'particular social group' must be cognizable as a group in society, that is, they must possess some unifying characteristic or attribute that sets them apart from society at large and which is the reason for the feared persecution.
The respondent referred specifically to paragraph 26 of the High Court's decision in Dranichnikov per Gummow and Callinan JJ where the court states the following:-
“At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.”
It was submitted that in the present case the RRT made a finding in accordance with the first step set out in the extract from Dranichnikov. It had determined that the group or class to which the applicant claimed to belong (whether "social active group of businessmen" or Russian entrepreneurs) was not capable of constituting a social group for the purposes of the Convention. It was then unnecessary, it was submitted, for the RRT to address any subsequent questions.
According to the Respondent’s submissions the treatment feared by the applicant from the Mafia as a consequence of his failure to comply with extortion demands or as a consequence of his actions in making reports to the police did not constitute persecution for reasons of his membership of a particular social group. It was submitted that there is no basis for any inference that the RRT did not properly understand or apply the relevant principles in determining whether the applicant was a member of a 'particular social group' within the meaning of the Convention. In any event, it was submitted there was no evidence before the RRT that the applicant was in fact a member of any postulated group of 'socially active' businesspeople, nor that he had engaged in 'social activities' as part of any such group.
The case otherwise was distinguishable from Dranichnikov as there is no suggestion that the applicant in the present case had joined with other business people or had attended public meetings to highlight corruption or lawlessness. It is submitted the applicant had not been targeted by the Mafia for reasons of his membership of any group but simply because he was a company manager. Reliance was placed upon the decision of Dawson J who had observed in the case of Applicant A at 240‑241 that it is not sufficient that the applicant is a member of a particular social group and also has a well‑founded fear of persecution; the persecution must be feared because of the applicant's membership of a particular social group in question. Dawson J states at p.240 the following:
“The words ‘for the reasons of’ require a causal nexus between actual or perceived membership of a particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person’s membership or perceived membership of the particular social group.”
It was submitted that there has been no failure by the authorities to provide protection to the applicant should he return to Russia or indeed whilst he was in Russia. The respondent rebutted the suggestion made by counsel for the applicant that the RRT had failed to take into account not simply the first assault which had occurred against the applicant in November 1997 or that it failed to consider the second alleged assault which had occurred in 1998 or indeed an additional assault after the applicant had arrived in Australia which had occurred to a friend in 1999. Reference was made to a further part of the RRT's decision where in its findings and reasoning the RRT stated the following:-
“ … There is no evidence before the Tribunal which would indicate that the conclusion of the processes, which he documents, was not brought about by the reasons stated in the document submitted, ie, lack of evidence or inadmissibility in certain jurisdictions. The documents indicate that some of the matters brought by the applicant ought to be pursued as civil rather than criminal matters. The applicant in interpreting this as a lack of interest and indication of corruption on the part of the authorities. There is no indication that he did pursue the matters in the civil courts. The Tribunal notes that receiving complaints, investigating them, calling people as witnesses and taking their statements does not indicate either an incapacity or unwillingness of the state apparatus to deal with the matters raised by the applicant. That these matters were not concluded to the satisfaction of the applicant does not indicate that protection was not available or not given.”
It was submitted by the respondent that that reference and indeed others in the RRT's reasoning clearly indicated that it had turned its mind properly to a relevant and material issue, that is, the issue of protection. It had been submitted by counsel for the applicant that those statements did not go far enough as they did not provide any analysis of what protection may be available or indeed indicate a failure of protection which arose out of incidents of assault to which reference has already been made.
The respondent in oral submissions referred the court to other decisions and in particular a decision of MIMA v Zamora (1998) 85 FCR 458 (Zamora).
The respondent referred to the decision in the matter of Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 at paragraph 40 where the court states:-
“40 Whether the factors were satisfied and, if so, how the family was to be defined, was a question of fact for the RRT: see Giraldo at [56] per Sackville J and Sarrazola No 1 at [37]-[41] per Hely J. However, the RRT did not address the characteristics that might identify and thereby define the family that, on the facts of the present case, might be set apart from the general community as a social group. Rather, the RRT addressed the separate and additional question of whether the particular family was recognised, in the sense of being well known, by Columbian society as a group that is set apart from the rest of the community.”
It was submitted that in the present circumstances the RRT had identified the correct issue and in light of those authorities had properly considered all the matters relevant to this claim. It was further submitted that in the present case the findings were findings of a kind where it could not be suggested that the government had either tolerated or had permitted a situation to arise where it could be said that the activities of private individuals could be regarded as uncontrollable. It had received complaints, acted upon them by way of appropriate investigation and findings, and it was submitted that in the circumstances the outcome of those findings, though not necessarily acceptable to the applicant, did not mean that there was sufficient evidence that the situation had become uncontrollable.
By way of reply, counsel for the applicant rejected any suggestion made earlier by the respondent that the lack of further reasons and explanation regarding the finding of the social group issue by the RRT could be somehow assisted by reference to the reasoning on that issue found in the delegate's decision. It was submitted that that is an inappropriate matter for the court to take into account as the reasoning of the delegate which was found in the material could not be reasoning which would assist in understanding or supporting the decision of the RRT.
It was further submitted that the court should rely upon other decisions and in particular the court could find that in the present case the RRT had not properly considered the issue and indeed had not properly had regard to all those issues which had been referred to by the applicant in relation to the social group issue. The case referred to by the respondent of Zamora could be distinguished from the present case as it is not put in the present case that mere membership of a particular group, that is, being a businessman, was all that had to be and was sought to be established by the applicant. It was submitted that in the present case the applicant had been more specific in defining the social class and therefore had established that he belonged to a particular social group of a kind sufficient to attract the protection and to attract the operation of the appropriate criterion for a cognizable social group.
The applicant had also referred the court to various further extracts from the decision of SDAV, and for present purposes I include those paragraphs namely paragraphs 29, 30, 33, 44 and 46.
“29 There are, of course, constitutional limits to the jurisdiction that may be granted to the Tribunal. The legislature cannot give the Tribunal power in excess of its own constitutional power. Whether the constitutional limits have been exceeded is a question of interpretation that must take into account, inter alia, the provisions of s 15A of the Acts Interpretation Act 1901(Cth). If those limits have been exceeded it will not be possible to reconcile the privative clause with other statutory provisions. Similarly the legislature cannot impose limits on the authority of the Tribunal (with the intention that acts done outside those limits are invalid) and deprive the High Court of its power under s 75(v) of the Constitution to restrain such acts by the issue of a constitutional writ; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616, Plaintiff S157 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [53].
30 Within those limits, however, the legislature may grant wide or narrow jurisdiction and the scope of jurisdictional error will vary correspondingly. In construing the statute to determine the scope of the jurisdiction granted due regard must be had to the intention of the legislature in enacting the privative clause. In Plaintiff S157, the High Court, while rejecting the argument that s 474 effected an implied repeal of all statutory limitations and restraints, noted that an effect of the section might be that `some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision'; per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [69]. Their Honours pointed out, however, that this could only be determined in the context of a particular case.
…
33 It must be emphasised that the aim of the process of reconciliation is to determine whether the impugned act is within the jurisdiction granted by the Migration Act. As such the process does not distinguish between jurisdictional errors that are and are not protected by the privative clause. It distinguishes between errors that are jurisdictional errors and those that are not jurisdictional errors. This analysis accords with the view expressed by a number of other Full Courts, exemplified by the following comment from NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 (`NAEB') at [4]:
`The High Court has now held that the approach to the construction and application of s474 adopted in NAAV, and many other decisions of this Court, was wrong: S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2. Section 474 is not, that decision holds, effective to protect jurisdictional errors.'
See Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24, NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 at [13], Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33 at [11], SDAH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 49 at [17], SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [27]-[28] per Madgwick and Conti JJ, Gyles J dissenting, SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 at [18]-[21] and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [20]-[21].
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44 As described above SDAV and SBBK both claimed to be members of a particular social group within the meaning of the Convention; see [7] and [18] respectively. Both complained of the systematic and discriminatory failure of the State authorities to protect them. We agree with the primary judges that the Tribunal misunderstood the nature of the claims being advanced and consequently failed to consider essential aspects of the claims actually made. The Tribunal made the same error as was identified in Khawar and Dranichnikov; it failed to consider a central element of the visa applicants' claims.
…
46 The visa applicants claim that it is a condition precedent to the exercise of the jurisdiction to grant or refuse a visa under s 65(1) of the Migration Act that the Minister must decide if he is satisfied as to each of the matters set out in s 65(1)(a)(i)-(iv). This, it is submitted, is an essential requirement if the Minister's action in granting or refusing a visa is to be valid. In Applicant S134 Gaudron and Kirby JJ noted that s 65(1) of the Migration Act applies to all visa applications, not merely applications for protection visas and referred to the fact that the regulations prescribe detailed criteria for various kinds of visas. They concluded:
`In light of the detailed specification in the regulations of the criteria for the grant of various classes of visa, it is impossible to treat the consideration by the decision-maker of the relevant criteria and his or her satisfaction or lack of satisfaction in that regard as other than conditions precedent to a valid decision to grant or refuse a visa under s65(1) of the Act.'”
Reasoning
In my view, in the present case it cannot be claimed that the RRT, unlike the decision in Dranichnikov, has failed to have regard to a relevant submission. It is clear from the extract from the RRT’s findings that it did indeed make a finding that the applicant did not belong to a particular social group and it did so on terms as defined by the applicant's adviser. The reference in its decision to the phrase "the groups postulated" could only mean the groups postulated by those then acting for and on behalf of the applicant. It is clear to me from the reference in the decision to the complaint of the applicant about his treatment as a member of the social group and indeed his reference to belonging to the particular social group, whether it be the group identified initially as the group of active Russian businessman or whether it be the group later defined as Russian entrepreneurs does not matter for the present purposes, save that it is clear that the RRT has had regard to the precise group as defined or indeed as referred to by the applicant or his advisers. Having referred to the groups as being the "particular social group or groups as defined by the applicant's adviser" it is not necessary, in my view, for the RRT to then further set out that definition when it has already done so earlier in its decision. It is not for the court to then look critically at the way in which the RRT has expressed its decision on that issue.
The more important issue, however, is whether or not there has been jurisdictional error in the way in which the RRT has reached that decision and whether or not it has had proper regard to the relevant principles to be applied in considering whether the applicant did or did not belong to a social group for the purposes of the Convention. In that regard I accept that it is appropriate to apply what was said by Callinan and Gummow JJ in the passage at paragraph 26 of Dranichnikov relied upon by the respondent. Applying the reasoning arising from that paragraph I accept that the determination of whether a group or class to which the applicant claims to belong is capable of constituting a social group for the purpose of the Convention in part involves a question of law. Having regard to that authority it is my view that there has been no error of law. Whether the RRT made fleeting reference or otherwise to the group, it certainly appeared cognisant of the group as defined by the applicant or his representative. It cannot be said in the present case that the RRT has failed to respond to the articulated argument on behalf of the applicant. It specifically accepted that the applicant may have been “assiduous in his pursuit” of certain matters and taking legal action but did not accept that a relationship developed which could be described as “helping the ministry of interior fight organised crime”. It otherwise analysed all the activities and roles asserted by the applicant and found there was a lack of consistency which had impugned the applicant’s credibility. Specifically I cannot see any error in the RRT not accepting that the applicant belonged to any of the particular social groups as defined by his adviser or its finding that such groups would not meet the criterion of being cognisable social groups.
It is noted in this case unlike the Dranichnikov matter that the applicant has not been accepted as a witness of credit. I accept the submissions by the respondent that unlike the evidence in Dranichnikov there was no evidence before the RRT that the applicant had joined with other business people or attended public meetings to highlight corruption and lawlessness. Targeting by the Mafia of the applicant was found to be because he was a company manager and not by reason of membership of any group. The RRT embarked upon its task correctly after analysing the facts as it is clear and I accept the reasoning of the High Court in Applicant A that a particular social group must be cognisable as a group in society. Further in applying the reasoning from Applicant A, it is not sufficient even if the applicant is a member of a social group and has a well founded fear of persecution because the persecution must be feared because of the applicant’s membership of the particular social group in question. In my view it was open to the RRT to make the findings in relation to social group and I cannot see any error of law.
In relation to the issue of further protection and whether or not it could be properly said that the government had allowed a situation to continue which could be regarded as uncontrollable, it is my view that it is relevant to consider at least some of the documents which were before the RRT if for no other reason than confirming that from time to time there appears on the material to be ‘certificates’ of action taken upon complaint being made by the applicant. For example, there appears to be reference to the attendance arising from events which are said to have occurred on 12 January 1998 (court book 165). There is a further reference in the material to an extract of patient entry (court book 119). A certificate appears at page 135. Other material includes reference to investigations being closed but there is no suggestion that the investigations were not at least commenced. For example, at court book page 56 there is a translation of an item of correspondence addressed to the applicant referring to an application regarding fraud committed against him by a particular individual and stating that that has been closed due to the fact that the guilt against the individual has not been proved and referring the applicant to the right he may have to appeal to another court in relation to the property claims he may have against the individual. There are further references in the material to other action being taken.
It is sufficient to note that in the circumstances it was open to the RRT, in my view, to make a finding, as it did, that the documentation in the present case rebuts the suggestion that the authorities were unable or unwilling to deal with the matters raised by the applicant. I am satisfied that the matters raised by the applicant were broadly referred to by the RRT at one point as issues relating to "corruption" but that in fact in the context of the whole of the decision they clearly indicated all of the applicant's concerns, which include corruption, extortion, assaults and the fear of being assaulted.
I am otherwise satisfied that the RRT has identified the correct issue and properly considered the relevant matters before it in reaching its decision. Even though the findings in relation to the extent to which the Government may have controlled the situation where attacks were made on private individuals, it is not sufficient in my view to require the RRT to find that there was sufficient evidence that the situation had become uncontrollable. In my view the RRT has properly considered all the material before it and do not accept that there has been any error of law.
After the decision was reserved it is noted that the High Court in the matter of Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 (27 May 2004) (Applicant S) revisited the issue of a well founded fear of persecution for reason of membership of a particular social group. In that case the Court referred to and applied reasoning from both the previous decisions in Applicant A and the unanimous decision of the Full Court of the Federal Court in the Zamora decision.
It is perhaps appropriate to set out the useful summary which appears in paragraph 36 of the judgment in Applicant S as follows:-
“Conclusions as to "particular social group"
36.Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.”
In the present case the reference to the authorities by the High Court in that recent decision does not cause me to alter the conclusion I have reached for the reasons given. Hence although I was minded to give the parties an opportunity to make further submissions arising out of that recent High Court decision I have concluded that it is not appropriate to do so given that the law stated in that case does not alter the outcome of this particular application.
It follows in the present case therefore that the application should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 June 2004
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