Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26

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(Judgment by: Gleeson CJ)

Dranichnikov
vMinister for Immigration and Multicultural Affairs

Court:

Judges:
Gleeson CJGummow J
Kirby J
Hayne J
Callinan J

Legislative References:
Migration Act 1958 (Cth) - s 476
Judiciary Act 1903 (Cth) - The Act
Administrative Decisions (Judicial Review) Act 1977 - The Act
Migration Legislation Amendment (Judicial Review) Act 2001 - The Act

Hearing date: 4 February 2003
Judgment date: 8 May 2003

Canberra

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Judgment by:
Gleeson CJ

[1] 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.

[2] It is contended that, so far, all who have considered Mr Dranichnikov's case -- the delegate, the tribunal, Kiefel J, and the Full Court of the Federal Court -- have misunderstood, and therefore failed to address, that case. The particular question to be decided is whether that is true of the tribunal.

[3] The essence of the contention is that the tribunal wrongly thought that the relevant social group to be considered, for the purpose of deciding whether Mr Dranichnikov had a well-founded fear of persecution by reason of membership of such a group, was businessmen, whereas his case was that he was a member of a more limited group consisting of businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

[4] The tribunal, in its reasons, said:

The Tribunal was informed of the circumstances surrounding the Applicant's actions in relation to trying to stamp out the attacks on entrepreneurs which had been increasing in the latter part of 1993 and the beginning of 1994. He had joined a number of other business people and had made representations to the Mayor and attended public meetings to highlight the plague of corruption and lawlessness. In order to pursue his objective in the field in which he was employed, he worked for the formation of a committee for the registration of property titles; this was achieved. Both the Applicant and his wife gave a number of examples of police inaction after crimes had been committed and standover tactics employed when citizens were doing the right thing and reporting instances to the police. Indeed the Applicant claims that the police put pressure on him to sign a letter requesting the discontinuation of the investigation into the attempt on his own life. He signed the letter because he felt that request as a threat. That was in late February or early March 1994.

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The Tribunal finds that the harm feared is not motivated by a Convention reason, hence the Tribunal need not proceed to a consideration of whether the fear is well-founded ...

The Applicant's adviser had posited in his submission that the Applicant was a member of a particular social group, namely, businessmen in Russia. Even if the Tribunal were to accept this proposition, there is no indication that the persecution is "for reasons of" membership of this group. Following the attempt on the Applicant's life in 1994 the Applicant does not report anything other than dissatisfaction with the society and the political system as a whole; there have been no further attempts to harm him or his family, nor are there indications of behaviour on the part of the Applicant which would attract the adverse attention of anyone for reasons of being a businessman in Russia. The actions which the Applicant described, which he took with other businessmen, in making representations to the Mayor were those of a concerned citizen and not part of a cognizable unit which could be considered a particular social group under the Convention.

[5] The tribunal's reasons were given on 11 August 1998. The submission to which the tribunal was referring was contained in a letter of 3 August 1998 to the tribunal from Mr Dranichnikov's solicitors. The letter said:

In recent years businessmen in Russia have been persecuted and murdered purely for belonging to that specific group of people known as " businessmen ". Mr Dranichnikov by definition of his employment was recognised as a member of the business community who was also actively involved in the pursuit of justice. Mr Dranichnikov by virtue of his businessman status and his stance against crime was considered obstructive and worthy of elimination. The attempt on his life is a very real indication of the graveness of his situation and his justifiable fears of returning to his country of origin. [emphasis added]

[6] The solicitors evidently, and for good reason, recognised that there may be a difficulty in persuading the tribunal to treat people who complained about failure to enforce the law, or people who took a "stance against crime", as a "particular social group". Accordingly, the submission stressed Mr Dranichnikov's status as a "businessman", and argued that businessmen constituted a "specific group of people". Mr Dranichnikov's stance against crime was given as a reason why he was at particular risk, but when it came to identifying the relevant social group, his status as a businessman was put in the forefront of the argument. The reasons of the tribunal responded to the submission as it was put. The tribunal considered that the most that could be said was that he was a "concerned citizen and not part of a cognizable unit which could be considered a particular social group". The tribunal appears to me to have considered the argument advanced by Mr Dranichnikov's solicitors, in the light of the evidence and the Convention.

[7] I am not persuaded that the tribunal misunderstood Mr Dranichnikov's case, or failed to address it.

[8] I would dismiss the application for special leave to appeal, and the application for constitutional writs, with costs.