Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: followed
appellant submits that the approach of the Tribunal member involved jurisdictional error and that the federal magistrate erred in law in failing to so conclude. He referred to the well-known passage in the joint reasons for judgment of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (" Dranichnikov ") (at 394 [26]): "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. 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 appellant submits that the Tribunal member failed to determine at the outset whether the following particular social groups, or one of them, existed for the purposes of the Convention: (a) a family of Coptic Christians with prominent members that proselytise Muslims in Egypt; and (b) Coptic Christian proselytisers of Muslims in Egypt. The Tribunal member rejected the suggestion that merely being a Coptic Christian could give rise to a well-founded fear of persecution and, as I understand it, it is not suggested that jurisdictional error arose in relation to that conclusion. The Tribunal member reached the same conclusion after he added to the appellant's status as a Coptic Christian the activities of his grandfather and uncle. The Tribunal member also rejected the appellant's account of his proselytising activities. As the Tribunal member said, he rejected "various constituent details of [the appellant's] account" and he was not satisfied that the appellant faced or faces significant relevant harm from Muslim fundamentalists in his community. As far as the two particular social groups set out in [45] above and on the assumption in relation to the group identified in (a) that the appellant is one of the prominent proselytisers, the Tribunal member approached the matter by going straight to the second question, namely, whether the appellant was a proselytiser of Muslims. He found that he was not. In those circumstances, it was not necessary for the Tribunal member to formulate and consider a precise social group because an element of each formulation is that the appellant was a proselytiser of Muslims. The Tribunal member did make a reference to whether proselytisers of Muslims in local Christian communities could face persecution by reason of those activities, but he did not directly address the first question identified by Gummow and Callinan JJ in Dranichnikov . Nevertheless, for the reasons I have given, that did not lead to jurisdictional error. It is not clear to me whether the appellant is submitting that the Tribunal member failed to address, as an alternative to his principal claim, a claim that he feared persecution not as a result of his own activities, but as a result of his membership of his family and the activities of his grandfather and uncle. If he is making that submission, I would reject it because I think the Tribunal did address that possibility. The appellant's own claim that his problems did not begin until 2003-2004 meant either that his family was not a relevant particular social group or, in the circumstances, membership of it did not give rise to a well-founded fear of persecution. The second ground of appeal is linked to the first. It is that the federal magistrate erred in not concluding that the Tribunal member erred by addressing the wrong question in that the Tribunal member concluded that the appellant had not been drawn into the conflict involving his uncle and that he was not significantly affected by his grandfather's situation or his uncle's situation. I do not think the Tribunal member erred in approaching the matter in that way. He was saying no more than that the appellant's membership of his family, which included his grandfather and uncle, did not give rise to a well-founded fear of persecution. That was a finding open to the Tribunal member on the evidence.