Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: distinguished
In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389, 394 (per Gummow and Callinan JJ, Hayne J agreeing at 408, Kirby J to similar effect at 402-404), the High Court set out a series of steps that the Tribunal must follow when determining whether an applicant fell within the Convention definition of refugee (Article 1A(2)) by reason of a well-founded fear of persecution due to membership of a particular social group: "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." 15 The appellant claimed to have a well-founded fear of persecution by reason of membership of a group described as "journalists or politically-active citizens (such as members of non-ruling parties, including the SNPU) who are prepared to expose corruption." As I have already mentioned, the Tribunal found that the appellant was neither a journalist nor a member of the SNPU. The only way that the appellant could fall within the group to which he claimed to belong was by his involvement in the exposure of the oil racket. 16 However, the Tribunal held that these circumstances do "not relate to the Convention." It found: "The criminals' desire for revenge is not motivated by anything other than what [the appellant] has done. It is not because of any political opinion, for example. The Tribunal has asked itself whether the Convention motivation of 'particular social group' may have come into play, but has concluded that it has not. The [appellant] has not claimed, for example, that all employees or all 'inspectors' of the 'Lviv Committee of Citizen Rights Protection" are being targeted by criminals. Not is he claiming that those criminals are targeting any wider hypothetical social group such as 'people exposing criminal actions' or 'people exposing corruption.' Rather, it is clear that the revenge the applicant fears is directed specifically at him because of his actions in uncovering their criminal activities. It is therefore not necessary to deal with the question of whether or not such hypothetical groups exist in Ukraine as 'particular social groups' within the meaning of the Convention." 17 This passage makes clear that the Tribunal considered that the issue of whether the appellant belonged to a particular social group for the purposes of the Convention did not arise because the reason for the appellant's fear of persecution was not related to membership of a particular social group. That is, the Tribunal considered that even if the appellant did belong to a particular social group within the meaning of the Convention, membership of that group is not the reason for his fear of persecution. Accordingly, the Tribunal concluded that it was unnecessary to follow the steps set out in Dranichnikov. 18 The appellant contended before this court that this was an impermissible line of reasoning. He argued that the steps set out in Dranichnikov must be followed even if the Tribunal is of the view that the applicant's fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there was a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper. 19 That question was whether the membership of a particular social group is the essential and significant reason (s 91 R(1)(a) of the Act) for the appellant's fear of persecution. The Tribunal answered that question in the negative, holding that "the revenge the [appellant] fears is directed specifically at him because of his actions in uncovering their criminal activities." 23 While it is vital to accurately identify the "particular social group" ( Applicant A at 401), it is often quite difficult to do so. These difficulties have lead applicants and tribunals into error. In Dranichnikov , the Tribunal defined the group as "businessmen in Russia." It concluded that membership of that group did not give rise to a validly held fear of persecution and so held against the applicant. The High Court explained that the correct social group, as the applicant had eventually argued, was "businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals." 25 It is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so. Dranichnikov does not demand otherwise. 29 This is the same reasoning as employed by the Tribunal in this case. It held that the appellant's fear is based on his individual action and not on his affiliation with any particular group. Having made that finding, there was no need to address the test set out in Dranichnikov . For this reason, the appeal fails on this ground also. 30 For the above reasons, the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 28 November 2006 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr E Heerey Solicitor for the First Respondent: Clayton Utz Date of Hearing: 9 November 2006 Date of Judgment: 28 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1632.html