Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26

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(Judgment by: Kirby J)

Dranichnikov
vMinister for Immigration and Multicultural Affairs

Court:

Judges: Gleeson CJ
Gummow J

Kirby JHayne 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:
Kirby J

[35] These proceedings involve another challenge to a decision to refuse an applicant a protection visa as a refugee. The circumstances in which a person is entitled to protection in accordance with obligations that Australia has assumed under the Refugees Convention 1951 ^[7] are incorporated in the Migration Act 1958 (Cth) (the Act). ^[8] These proceedings concern a suggested error made by the Refugee Review Tribunal established by the Act ^[9] (the tribunal) in identifying the category upon which it was claimed a protection visa should issue. This mistake, so it is said, led to an error on the part of the tribunal in reaching its conclusion which was adverse to the applicant.

[36] Having failed in a challenge to the tribunal's decision in the Federal Court of Australia, the applicant applied to this court for special leave to appeal. That application was referred to the court as now constituted to be heard as on the return of an appeal. Concurrently with those proceedings, and in case the complaints fell outside the relief available under the Act as it then stood, ^[10] an application was brought in the original jurisdiction of this court for relief by way of mandamus and prohibition and for certiorari to make such relief complete.

The facts

[37] Mr Sergey Dranichnikov (the applicant) arrived in Australia in January 1997 with his wife and daughter. In April 1997, application for a protection visa was made to the Minister for Immigration and Multicultural Affairs (the minister) on behalf of the Dranichnikovs on the ground that they were refugees. All of them are nationals of the Russian Federation. In accordance with the Act, a form was lodged setting out the application. To this form was annexed a "submission" that contained the basis of the applicant's claim for refugee status.

[38] The applicant stated that he had been appointed in late 1993 as general manager of a company in Vladivostok, which is on the Pacific Ocean coast of the Russian Federation. The company was a small enterprise, employing eight persons, including the applicant's wife. It had a turnover of approximately A$15,000 a month. According to the applicant:

At the end of 1993 and the beginning of 1994 there were number of murders and attempted murders of entrepreneurs. Number of such crimes was increasing, and it was covered by the press, TV and radio. Most of these crimes were unsolved and criminals were never found. As someone who belongs to the social group of entrepreneurs, it worried me extremely, as could see myself as a target. I openly criticised the work of the law authorities at meetings and organised protest gatherings. I could not stay uninvolved, when people were killed, and no one was punished for it.

[39] The applicant stated that, in February 1994, an attempt was made to kill him. He alleged that he was struck on the back in the hallway of his home by an assailant using a knife. The police were called but "they were indifferent to what has happened, neither were they interested in catching the criminal". According to the applicant, the police did not even take the knife of the assailant that had been dropped in the attack.

[40] The applicant said that before and after this attack he had been making demands for action by the authorities against the lawlessness and corruption that were pervasive in Vladivostok. The applicant stated in his submission:

My only possible "crime" was that I spoke openly and directly against unlawfulness of security authorities.

[41] After the attack the applicant claimed to have been "under constant stress and fear". Because both he and his wife had a "strong sense of justice" they "very often spoke against the lawlessness". According to the applicant, "it became clear for me that the attempt on my life was due to this fact. In Russia, at the moment, murder is one way of dealing with people who are unwanted".

[42] The minister assigned the applicant's application to his delegate, an officer of his department. The delegate's decision recorded his understanding of the applicant's claim. The delegate summarised the claim as being based on the fact that the applicant was a "businessman" who had "organised protest gatherings and meetings where he criticised the work of the security authorities". He recorded the stabbing attack on the applicant, the lack of interest of the authorities and the applicant's feeling that the attack was caused by his speaking out against the authorities. It was his speaking out that the applicant felt had raised his profile.

[43] The delegate considered the applicant's case within the Convention category of "membership of a particular social group". ^[11] The delegate identified the "social group" in question as "entrepreneurs" and went on to elaborate this class further as "[businessmen] in Russia ... at risk from the criminal organisations ... who have links with the authorities". The delegate recorded the applicant's belief that his profile had been raised because "he organised anti-crime meetings and spoke out in public against the authorities [sic] inability to defeat crime". ^[12] However, when it came to expressing his decision, the delegate confined the applicant's stated fear to the fact "that he will face differential harm as a businessman ". ^[13] Approaching the application in this way the delegate concluded: ^[14]

I do not accept that there is evidence to suggest that there is general persecution of businessmen in Russia.

[44] On that footing, the delegate rejected the applicant's claim that he had been targeted "because of a membership of a particular social group". What the applicant had suffered was no more than "criminal actions directed by the perception that the applicant as an individual is a worthy target for intimidation by the criminal elements of society". ^[15] The applicant did not therefore suffer fear of persecution for a Convention reason if he returned to Russia.

[45] Following this rejection of his application, the applicant sought a review of the delegate's decision ^[16] by the tribunal. In support of this application, he caused his migration agent, a solicitor, to write to the registrar of the tribunal clarifying his claim for protection. In this letter, the agent emphasised the importance of attributing weight to the applicant's protest activities which raised his profile "within the community [in Vladivostok] and [to] the threats against himself and his family [that] can in part be attributed to his involvement in these activities". The agent stated:

Our understanding of the situation would indicate that Mr Dranichnikov would not be a potential target if he was not affiliated to that group of legitimate business people who pose a threat to organised crime.

In recent years businessmen in Russia have been persecuted and murdered purely for belonging to that specific group of people known as "businessmen". Mr Dranichnikov by definition of his employment was recognised as a member of the business community who was also actively involved in the pursuit of justice ... [B]y virtue of his businessman status and his stance against crime [he] 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.

[46] It is clear from this letter that the case that the applicant was propounding before the tribunal was something more than fear of return to Russia by reason of his membership of the particular social group of businessmen or entrepreneurs in that country. The added elements were that the applicant claimed to be a businessman who could not accept the increasing levels of corruption and violence in Russia, denounced the suggested complicity of the authorities in it and took a public stance against such developments.

[47] In his evidence before the tribunal, the applicant reasserted and elaborated these aspects of his claim. He described how he had joined in an "attempt to actually do something about [the] problem" of attacks on businessmen, instanced by the attack on him. Thus, he said that he had joined in a round table meeting held at the city council office in Vladivostok. Together with other entrepreneurs he took "part in the discussions about our operation". He went on:

We wanted to involve the government, the police and other government agencies in that campaign of fighting crime, fighting corruption in order to protect citizens, in order to maintain order in the country and to maintain order in the way of the businesses operating. We asked the law enforcement agency to provide us with some information.

[48] According to the applicant, the results of his efforts were inconclusive. Experience had taught that people were being killed either for big money or because they became "unwanted for their activity". It was within weeks of the meeting at the city council that the applicant was attacked at his home. The applicant ascribed the attack to the fact that he was "unwanted" because of his activities in seeking to "right things" and "help people". After the attack, the police returned to speak to the applicant. According to his statement, the police officer sat in the police car and warned him that pursuit of his assailant would be fruitless and, if successful, would lead to revenge. In accordance with the advice he received, the applicant signed a paper to the effect that he withdrew his complaint.

[49] The tribunal described the applicant as a "credible witness who provided clear answers to the questions" asked of him. It said that "his wife also presented evidence which the Tribunal finds credible". ^[17] It accepted that the applicant had a "subjective fear of returning to Russia because of the events which he described". ^[18] It therefore approached the issue before it as one of determining "whether the harm feared is grounded in the Convention".

[50] Unfortunately, in answering that question, the tribunal also misstated the "social group" that was relied on by the applicant. It said: ^[19]

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 .

[51] 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

[52] 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.

[53] 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.

[54] 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.

[55] 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.

[56] Whilst the Full Court was prepared to accept that "[a]n asylum claimant does not have to pick the correct Convention 'label' to describe his or her plight", it stated that "the Tribunal can only deal with the claims actually made". ^[26] On that footing, the Full Court rejected what it saw as the attempt to expand the applicant's "claim" to one based on "political opinion" stemming from his involvement in protests against corruption and illegality, his advocacy of human rights and his suggested role as a "whistle-blower".

[57] Once this foundation for relief was put to one side, the Full Court found no error in the primary judge's decision that warranted its intervention. The appeal was therefore dismissed.

The issues

[58] By the time the proceedings reached this court, enlarged by the application for constitutional writs, the focus of argument had changed somewhat. The ground upon which special leave to appeal from the judgment of the Full Court was sought (and relief claimed in the form of mandamus, prohibition and certiorari) was that the tribunal (and the Federal Court) had misunderstood and misstated the applicant's case grounded in the Convention. Leaving aside the issue of fear of persecution "for reasons of ... political opinion" and assuming that ground to be excluded by the way the application had been presented to the tribunal, the applicant complained that the "particular social group" upon which he had relied had been expressed too broadly. He submitted that the misstatement was critical to the tribunal's rejection of his claim that the "fear" that he had successfully established was "for reasons of ... membership of [the] particular social group" specified.

[59] The issues arising are therefore:

(1)

Did the tribunal misstate the "particular social group" upon which the applicant relied?

(2)

If so, did that misstatement affect the decision of the tribunal?

(3)

If so, in the application for special leave to appeal to this court, did the tribunal's error warrant relief in an appeal on the basis that, on the record, the Full Court should have allowed the appeal before it, set aside the decision of the tribunal and ordered a rehearing upon the grounds for review then provided in s 476 of the Act?

(4)

If not (or in any event if it is appropriate to consider the application for constitutional writs), should such writs be granted to quash the decision of the tribunal, to prohibit action upon it and to require a rehearing on the basis (as propounded) of a constructive failure of the tribunal to exercise the jurisdiction and the powers which the applicant had invoked?

(5)

If so, are there any discretionary reasons for declining constitutional relief?

The tribunal misstated the class relied upon

[60] When regard is had to the history of the applicant's endeavours to express the basis of his entitlement to a protection visa under the Act, ^[27] by reference to the definition of "refugee" appearing in the Convention, it seems clear that the applicant's case was not based, relevantly, on "political opinion" but on his "membership of a particular social group". It seems equally clear that the "particular social group" that the applicant was propounding was not one limited to "entrepreneurs" or "businessmen in Russia". There were added ingredients that refined the "group" relied upon and that sharpened the focus of the claim. The principal ingredients involved the participation by the entrepreneurs or business people concerned in the making of representations to the authorities in Vladivostok; in attending public meetings to "highlight the plague of corruption and lawlessness"; ^[28] and in appealing to the authorities for protection which the authorities were either unwilling or unable to provide.

[61] No doubt the tribunal was aware of these added considerations. They were mentioned in the well-focused submission of the applicant's agent; in the applicant's testimony before the tribunal; and indeed in the history which the tribunal itself recorded, adding the observation that the applicant was "credible" and had convinced the tribunal of the presence of subjective fear.

[62] The tribunal's reasons were delivered within a short time of the agent's letter and the applicant's testimony which the tribunal accepted. Notwithstanding this, when the tribunal came to define the "particular social group" for the purposes of the Convention, it described it as "businessmen in Russia". ^[29] It then proceeded to assume that this "social group" was the one by which the other considerations in the Convention definition had to be measured in the applicant's case.

[63] With respect, it is not correct to say, as the Full Court did, that prior to the tribunal's decision, the applicant did not refine the "particular social group" upon which he was relying. Whilst various formulations were used by him, it is sufficiently clear that the applicant was explaining his subjective "fear" by reference to the peculiar circumstances that had impinged on his life in Vladivostok. These included his involvement with a group of businessmen who had felt sufficiently concerned to participate in discussions at the city council; who had expressed concern about the lack of effective action by the authorities; whose members had suffered dangers of death and injury (as the applicant in February 1994 was to do) and who had sought intervention by the authorities, only to be disappointed.

[64] The applicant's case was therefore much more precise than a claim of fear for "being a businessman in Russia" ^[30] -- a huge class, inferentially including many persons who would have no fear and no foundation for protection as refugees. By expressing the applicant's claim as it did, the tribunal misstated the case before it.

The misstated class affected the tribunal's decision

[65] The decision of the tribunal indicates that the claim by the applicant was rejected on the basis of causation. ^[31] The tribunal did not accept that the persecution was "'for reasons of' membership of [a particular social] group". ^[32] The claim was held to "have no nexus with the Convention". ^[33] The tribunal's misstatement of the class of social group was central to these conclusions.

[66] This is not an occasion to review the explanation, given by this court in earlier cases, ^[34] 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: ^[35]

[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". ^[36] 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. ^[37] 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. ^[38] 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.

[67] Illustrations of the potential breadth of the class invoked in this case can be found in recent decisions of this court, such as Applicant A v Minister for Immigration and Ethnic Affairs ; ^[39] Chen Shi Hai v Minister for Immigration and Multicultural Affairs ; ^[40] Minister for Immigration and Multicultural Affairs v Haji Ibrahim ; ^[41] and Minister for Immigration and Multicultural Affairs v Khawar . ^[42] The class has received a wide reading in other countries with legal systems similar to our own ^[43] and in countries with quite different legal traditions. ^[44]

[68] Specifying with precision the "social group" that an applicant propounds as the one applicable to his or her case is important for at least two reasons. First, it ensures that the decision-maker addresses accurately the case that is put in respect of which the relevant jurisdiction and powers are invoked. But there is a second, practical reason for precision in this regard. It is one relevant to the present application.

[69] As the submissions for the minister in this court correctly pointed out (invoking the influential opinion of McHugh J in Applicant A ^[45] ), an applicant faces a paradox in identifying the "particular social group" that he or she relies on in cases of this kind. Defining the group widely increases the ease of establishing membership of that group and, to that extent, of fulfilling a requirement of the Convention definition. However, the wider the definition of the "group" propounded, the more difficult it may be for the applicant to show that the suggested fear is one of "persecution" which is "well-founded" and exists "for reasons of" membership of that social group. If the category is defined too narrowly, the decision-maker might be justified in considering that the "particular social group" claimed is not a "social group" at all when that phrase is read as an element of an international treaty intended to have operation at the level of the obligations imposed upon nation states.

[70] A good illustration of the latter point may be seen in a recent English decision where it was submitted that a family could be a "particular social group" for the purposes of the Convention definition. The claim was made upon the basis that, as a male in a family which was involved in a blood feud in Albania, the applicant in that case had a well-founded fear of persecution if he returned to Albania. The English Court of Appeal accepted that particular social groups could be very large or very small, depending on the circumstances. It acknowledged that, in particular cases, the phrase could even comprise a clan or a family. ^[46] To decide whether, in the individual case, this was so, it would be necessary to consider whether the propounded "group of people" was recognised by society as a distinct "group" with particular characteristics. ^[47]

[71] In that case, the English Court did not accept that the applicant's family could be regarded "as a distinct group by Albanian society any more than, no doubt, most other families in the country". ^[48] In a sense, the narrow category claimed for the applicant destroyed his argument that a "particular social group" within the meaning of the Convention existed.

[72] Such considerations may, on occasion, be determinative of an applicant's entitlement to protection under the Convention. So it was here. To the extent that the "social group" was defined broadly as "entrepreneurs" or "business people" in Russia, it became easier for the applicant to satisfy the element of membership in the definition. But it became commensurately more difficult for the applicant to satisfy the other elements of the Convention, most especially proof of a "well-founded fear"; proof that such "fear" was of being "persecuted"; and proof that the "fear" was "for reasons of ... membership of a particular social group" as so defined.

[73] Before the tribunal in the present case, the applicant failed on the last of these considerations (that is, the reason for the fear which he proved). It was therefore unnecessary, in the event, for the tribunal to consider the other two remaining elements of the definition. But to the extent that the "social group" in question was defined over-broadly, the applicant faced severe difficulties in establishing his case. It became more likely that his "fear" would be ascribed to personal considerations relating to criminal activities directed against him and his family than to "persecution" within the Convention, which arose "for reasons of ... membership of a particular social group".

[74] The mistake of the tribunal in expressing the "social group" as it did was therefore critical for the foundation upon which it rejected the applicant's claim. It cannot be dismissed as an immaterial error.

The appeal: relief under the Act s 476

[75] Having concluded as I would that the tribunal misdirected itself in such a fundamental way, the issue is whether the applicant was entitled to relief in the Federal Court in his application for review under s 476(1) of the Act, as that subsection then stood.

[76] The primary process before this court is an application for special leave to appeal, referred into a Full Court. There are two possible impediments, of the procedural kind, to the grant of special leave.

[77] The first is that, in his proceedings in the Federal Court, the applicant did not clearly propound the ground of appeal that he has now advanced before this court. This failure does not amount to a constitutional barrier to this court's permitting that ground to be raised for the first time in this court. Although the proceedings would be by way of an "appeal", as contemplated by the Constitution, ^[49] and although such an "appeal" has been held to be a strict appeal, ^[50] this court has made it clear that, subject to the exercise of discretion particular to the case, it can permit fresh grounds to be raised in an appeal without altering the character of the proceeding as an "appeal". ^[51]

[78] The second relates to the function of the tribunal and of the Federal Court. The Full Court correctly noted the degree of latitude that would be shown to a person such as the applicant representing himself without legal assistance. It recognised that he did not have to pick the correct Convention "label" to describe his plight. ^[52] The tribunal acts in a generally inquisitorial way. ^[53] This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This court has rejected that approach to the tribunal's duties. ^[54] The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the tribunal.

[79] I do not consider that these procedural impediments bar any entitlement that the applicant has in this court to a remedy under the Act. At least by the time the proceedings reached the Full Court, it is clear enough, from the reasons of that court, that the applicant was making the point that he was not relying only on the risk of harm to himself as an "entrepreneur". ^[55] The identification of the correct category applicable to the case is also fundamental to the proper performance by the Federal Court of its function of review, as of the tribunal in its function to reconsider the decision of the minister's delegate.

[80] However, in cases of this kind, the grounds upon which the Federal Court may provide judicial review are limited, relevantly by the terms of s 476(1) of the Act as it then stood. Those grounds are narrower than the grounds that exist for review at common law, under the provisions of the Judiciary Act 1903 (Cth) ^[56] or the Administrative Decisions (Judicial Review) Act 1977 (Cth). ^[57]

[81] No express provision appeared in s 476(1) of the Act to afford a ground for judicial review on the footing of a failure of a person, purporting to make a decision, to exercise that person's jurisdiction and power as the Act provided. In a case such as the present, to afford relief, it would be necessary to construe broadly the grounds that appeared in s 476(1) of the Act, perhaps beyond their apparent purpose.

[82] Counsel for the minister conceded, fairly, that it was arguable that para (e) of s 476(1) was applicable to the case if this court accepted the applicant's basic argument. At the time, that paragraph provided for review on the ground:

... that the decision involved an error of law, being an error involving ... an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

[83] In the event, it is unnecessary to explore the question of whether that ground, or any others in s 476(1), apply and survive the restrictions on those grounds stated in s 476(2) and (3) of the Act. This is because the commencement of the proceedings for constitutional relief affords this court a more direct and readily applicable foundation for the correction of the error that the applicant has demonstrated.

[84] Normally, where the court has before it concurrently an appellate process and an invocation in the original jurisdiction of the constitutional writs and related relief, it will first decide whether the party succeeds in the appeal. If the party so succeeds, it will, depending on the circumstances, normally be possible to dispose of the constitutional application on the basis of the court's discretion to refuse such relief because, in the circumstances, it is redundant. ^[58]

[85] In the present case, because of the repeal of s 476 of the Act in relation to future cases, and the limited operation of that section, there are strong reasons of convenience, another remedial process being available, for this court to proceed directly to consider the claim for constitutional writs. The applicant has made out a clear case for relief of that character.

The constitutional writs: a constructive failure to exercise jurisdiction

[86] The applicant submitted that he was entitled to the issue of constitutional writs under s 75(v) on the basis that the tribunal had constructively failed to exercise its jurisdiction in the manner contemplated by the Act. ^[59] This principle of relief has been applied in recent times, including in immigration decisions, where it is shown that the decision-maker "failed to consider the substance of [the application] and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'". ^[60]

[87] This court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief. ^[61] Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, ^[62] in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.

[88] Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.

[89] The applicant has established a constructive failure on the part of the tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate. Prima facie, he is therefore entitled to the issue of the constitutional writs that he seeks and the associated relief of certiorari to make such writs effective.

No discretionary reasons to withhold relief

[90] Once this point is reached, it was conceded for the minister, properly, that there was no discretionary ground for refusing constitutional relief to the applicant. It was also accepted that the applicant had acted correctly in first availing himself of his "appellate" entitlements in the Federal Court. The existence of orders in the Federal Court, undisturbed on appeal, does not bar the way to the provision of constitutional relief. ^[63] It was accepted that no other ground for refusing relief would arise from the short extension of time that the applicant requires for the issue of the writs as he has sought.

[91] I do not consider that the lack of focus, confusion, poor judgment about arguable issues and failure earlier to specify the basis on which he now succeeds constitute reasons, on discretionary grounds, for refusing the applicant constitutional relief. ^[64] Accordingly, a writ of prohibition in the first instance should issue out of this court addressed to the minister (the first respondent) to prohibit him from acting on the purported decision of the tribunal concerning the applicant and his family. A writ of certiorari should issue to quash the decision of the tribunal. A writ of mandamus should issue to oblige the tribunal to consider the applicant's application for review of the decision of the delegate and to determine that application according to law.

[92] This outcome does not ensure that the applicant will ultimately succeed in his claim for protection for himself and his family as refugees. There remain the questions of whether he can establish that the subjective fear that has been found to exist in his case is "well-founded", relates to "persecution" and exists "for reasons of" his membership of a particular social group. However, the starting point for the correct consideration of these interrelated questions is the correct identification of the "particular social group" that the applicant propounded. In this case, this was the group of businessmen or entrepreneurs in Vladivostok in the Russian Federation who grouped together in response to serious civic lawlessness and to the failure of the authorities to uphold the law and to address the grave violence to which the members of the group, including the applicant, were subjected.

[93] The decision on the merits will be one for the tribunal. But if the correct "social group" is identified, it cannot be said that the return of the matter to the tribunal is futile.

Orders

[94] The court should issue the writs of prohibition, certiorari and mandamus sought by the applicant. The minister should pay the costs of the applicant's application for constitutional relief and certiorari in this court. The applicant's application for special leave to appeal should be dismissed as unnecessary, with no order as to costs in this court.