Case: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: applied
This case is analogous to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (' Dranichnikov '). In that case, the applicant claimed to be 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. However, the RRT considered whether the applicant was at risk of persecution by reason of his membership of a social group consisting of businessmen in Russia. The majority in the High Court (Gummow and Callinan JJ, with whom Hayne J agreed) found at 394-5 [27] that the RRT had fallen into jurisdictional error by determining: '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 majority held that: '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.' Kirby J reached the same conclusion as Gummow, Callinan and Hayne JJ and observed at 407 [87]-[88]: 'Difficult as it may sometimes be to differentiate jurisdictional or non-jurisdictional error with exactitude, 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. 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.' 8 The first respondent argued that there was no jurisdictional error by the RRT because the RRT determined the risk of harm to a more general social group, the armed forces, a subset of which was members of the armed forces on a PKK blacklist. However, I am satisfied that in this case, as in Dranichnikov , the RRT was required, but failed, to consider and make findings in respect of the claim made by the appellant and instead made findings in relation to a different claim which was not the claim put by the appellant. This constitutes a failure by the RRT to exercise its jurisdiction. 9 The first respondent contended in the alternative that the appellant must fail in any event because the RRT made an independent finding of adequate state protection. However, the RRT's finding of adequate state protection related to the claim with which it was dealing, namely the threat likely to be experienced by members of the Turkish armed forces and their families. As explained above, that was not the appellant's claim. The question of whether a person in the appellant's position was able to obtain adequate protection from the Turkish authorities was not addressed by the RRT. I am confirmed in that view by the fact that the RRT made no reference in its state protection finding to the claim of the appellant that the Turkish authorities stated they could only provide her with protection for three months but no longer. The failure to deal with that specific claim, which was plainly relevant to the issue of adequate state protection for the appellant or for persons in her position, supports my view that the RRT was dealing with a different claim. It follows that the appeal is to be allowed and the orders of McInnis FM are to be set aside. Orders should also be made quashing the decision of the RRT and requiring it to determine the appellant's application according to law. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 9 February 2006 Counsel appearing pro bono for the Appellant: R Niall and C Symons Counsel for the First Respondent: H Riley Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 3 February 2006 Date of Judgment: 3 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/39.html