Failure To Deal With The Case Put By The Applicant
TABLE OF CONTENTS
Introduction
In Dranichnikov v MIMIA [2003] HCA 26 (8 May 2003), the High Court dealt with a case which concerned an application for a protection visa by a Russian businessman who said he was the victim of criminal gangs because as a business man he had publicly advocated reform. Gummow & Callinan JJ in the High Court stated:
In its reasons the Tribunal stated what it apparently thought to be Mr Dranichnikov’s case, that the particular social group to which he claimed to belong was of “businessmen in Russia”. He contends however that in fact he submitted to both the Minister’s delegate and the Tribunal that the relevant class was a narrower one, of businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime in Vladivostok and to protect Russian businessmen who protested. It is apparent that Mr Dranichnikov placed emphasis in his initial application upon his membership of that narrower group.
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Mr Dranichnikov contends in this Court that the Tribunal misstated and failed to deal with the case presented to it. We accept this to be so. The passage that we have quoted from the decision of the delegate shows clearly the emphasis that Mr Dranichnikov placed upon his membership of a special group, not just of business people, but of business people in public protest, in effect, about state sanctioned corruption including, on occasions, violence. There is no reason why he would have presented his case any differently before the Tribunal. And in fact he did not. He not only referred to, and relied upon the material which had been presented to the delegate, and which in turn was before the Tribunal, but also included a written submission by his solicitor which reiterated Mr Dranichnikov’s membership of a group of legitimate business people “who pose a threat to organised crime”; and, that he had taken a “stance against crime”. It is clear that the Tribunal misunderstood and failed to deal with this important aspect of Mr Dranichnikov’s case.
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to failure to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made[1]) which provided as follows:
“(2) The following are not grounds upon which an application may be made under subsection (1):
that a breach of the rules of natural justice occurred in connection with the making of the decision”.
The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn.
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[2]. 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.
The Tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov’s membership of a social group, namely, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
It seems to us that had that question been addressed it would in all likelihood have permitted of one only answer, an affirmative one. This is so because the Tribunal accepted Mr Dranichnikov as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault which he suffered.
In Minister for Immigration and Multicultural Affairs v Khawar Gleeson CJ said[:
“As her case is argued, and as a matter of principle, it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude, by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from entrenched cultural attitudes.”
The Dranichnikovs’ case as presented to the Tribunal has in common with Ms Khawar’s case, an apparent deliberate abstention by the authorities from the affording of protection to a member of an identified group. Indeed in Mr Dranichnikov’s case, it appears that the authorities may have facilitated criminal conduct by forcing him to withdraw his complaint. The group to which he belongs is one which is smaller than the group in Khawar and accordingly is easier to identify and define.
Gummow & Callinan JJ therefore concluded that the RRT did not give the applicant the hearing required by the Act, that is it failed to exercise its jurisdiction.
The High Court accordingly granted relief under s. 75 of the Constitution on the basis of jurisdictional error. This is an important case because it requires, a merit review body to properly understand an applicant’s case. If it misunderstands the applicants case then it does not give the applicant a proper hearing, because in the end it is not deciding the case presented by the applicant. By deciding the case on an incorrect understanding of the applicant’s case, the RRT in this case asked itself the wrong question. It is also a case of a tribunal asking itself the wrong question (as articulated in bold type above). As a consequence the RRT committed jurisdictional error.
NAFQ v MIMIA [2003] FCA 473 (16 May 2003), concerned the power of the RRT not to disclose certain information to applicants. The case concerned documents from China’s Public Security Bureau supplied in confidence to DIMIA, alleging the applicant was wanted for fraud charges in China. The applicant said the charges were trumped up because the husband had exposed corruption in China. S. 438 governs this situation:
Section 438. Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.
- (1) This section applies to a document or information if:
- the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
- the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
- must notify the Tribunal in writing that this section applies in relation to the document or information; and
- may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
- may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
- may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
The RRT had received a document from DIMIA submitting that the RRT should not exercise its power under s. 438(3)(b). This DIMIA submission was not disclosed to the applicant. Moore J concluded:
38 In the present case, the Tribunal had a clear statutory mandate (under par 438(3)(b)) to have regard to the documents from the Chinese authorities without their contents being disclosed to the applicant. However the existence of that power renders more significant the exercise of the discretionary power which might result in disclosure of the contents and points, in my opinion, to the need in this case for the Tribunal to have given the applicant an opportunity to be heard before the discretionary power was exercised. Because the Tribunal might ultimately decide the matter having regard to undisclosed material (and material which the applicant has not scrutinised or commented on) it reinforces, in my opinion, the need for that opportunity to be clear and unequivocal, to use the language adopted by Weinberg J.
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40 It is to be recalled that in their letter of 18 November 2002, the applicant’s solicitors noted that any statement by the Secretary under par 438(2)(b) (advice concerning the significance of the documents) was disclosable to the applicant. While there was no express and unambiguous request that the applicant be provided with the statement, this observation should probably be treated as such a request and viewed as such by the Tribunal. At the very least, it put the Tribunal on notice that the applicant had an interest in any advice it might receive from the Secretary which might bear upon the exercise of the discretionary power (to disclose “matter” contained in the documents) conferred by par 438(3)(b). The applicant only knew of how the discretionary power might be exercised when her solicitors were informed the following day that the Tribunal had decided against disclosure.
41 In my opinion, it is no answer to say that the applicant had the opportunity to make submissions before the discretionary power was exercised and, in a sense, did so in the letter of 18 November 2002. Central to any decision to exercise the discretionary power is the advice given by the Secretary. The Tribunal is obliged to have regard to that advice. In my opinion, the opportunity to put the case in support of the exercise of the discretionary power in an applicant’s favour would ordinarily involve an applicant being given a copy of the advice and afforded an opportunity to comment on it. In the present case, nothing was said by or on behalf of the applicant which suggested she did not wish to see the advice and comment on it (indeed, as earlier noted, the letter from her solicitors probably should be understood to be a request to see it). The applicant was not given this opportunity.