Case: Dranichnikov v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: discussed
the federal magistrate, the appellant contended that the Tribunal member had made two errors. First, she had not determined at the outset whether the particular social groups advanced by the appellant were particular social groups for the purposes of the Convention and therefore she had not followed the steps laid down in Dranichnikov v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389. This error was not said by the appellant to be fatal of itself, but when combined with other errors it was significant. As I understand the federal magistrate's reasons, he accepted that the Tribunal had not made findings about these matters, but he held that this had not led to jurisdictional error. Secondly, it was submitted that the Tribunal member had erred in not undertaking an examination of whether there was a causative link between the fear and the motive for persecution. The Tribunal had failed to consider the evidence relevant to the objective ascertainment of the motives of those who were responsible for the persecution. In rejecting the appellant's argument, the federal magistrate said: "The Tribunal expressly considered the claim that the applicant fears harm as a result of being a child in Albania. It evaluated the evidence presented by the parents on behalf of that claim and examined the country information as well and came to a conclusion that the risks presented to the child stemmed from the blood feud. I can readily conceive of cases where dealing with the subjective element and then the nexus between that and the convention related harm simply upon the basis of an attribution to the child of parental fears would give rise to a jurisdictional error. They would be circumstances where, for example, there was material before the Tribunal providing an objective basis for the fear which is attributed to the child being held for a convention related reason. The only material available to the Tribunal here was either country information that did not relate to convention-related persecution or material that indicated that the perceived harm arose from the existence of the blood feud and its consequences." The grounds of appeal to this Court The original notice of appeal contained five grounds of appeal. Shortly prior to the hearing, the appellant forwarded to the Court an amended notice of appeal which raised three further grounds of appeal. The three further grounds of appeal were that the federal magistrate erred in not holding that the Tribunal had committed jurisdictional error by reason of: "(e) finding that the 'other member' of the family of the Appellant for the purposes of s 91S(a) of the Migration Act 1958 (Uncle Ded) did not suffer fear or persecution for a Convention reason (see Tribunal decision page 19.4 AB 189.4). Particulars The Uncle was a member of the particular social group of Albanian householders who had resisted armed encroachment onto their property. He feared persecution for reason of membership of that particular social group, and further feared that he would receive no protection from the Albanian State, and consequently he had a Convention reason for his fear of persecution. (f) not determining that State prosecution was not available for those in danger of reprisals, when evidence had been led to that effect. (g) not determining that the appellant had a well founded fear of persecution, at least hypothetically, for a Convention reason." In essence, the appellant claims that the Tribunal member committed a jurisdictional error by failing to consider whether Uncle Ded had a Convention reason for his fear of persecution, namely, his membership of a particular social group, being "Albanian householders who had resisted armed encroachment onto their property". The Tribunal member had said that Uncle Ded's fear of persecution arose from the shooting incident and was not Convention related. Of course, there are a number of other issues in addition to the question of whether a particular social group exists for the purposes of the Convention. In Dranichnikov , Gummow and Callinan JJ said (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." There is also the issue of State protection. In this case, I do not need to consider the other issues and the issue of State protection because I have reached the conclusion that the Tribunal did not err in not identifying and considering whether Uncle Ded belonged to a particular social group described as "Albanian householders who had resisted armed encroachment onto their property". The claim now made in relation to Uncle Ded was not expressly articulated before the Tribunal and it was not dealt with by the Tribunal. The principles concerning the Tribunal's obligation to deal with claims before it are clear, although their application may give rise to difficulties. I should say that I do not think the principles or their application differ because the claim for membership of a particular social group is made in relation to a third party (Uncle Ded) and not the appellant himself. In Dranichnikov , the Tribunal had not considered a substantial, clearly articulated argument relying upon established facts, that being whether the applicant was a member of a particular social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals (at 394 [24] per Gummow and Callinan JJ). The Tribunal had in fact considered another question which was whether the applicant's membership of a social group being "businessmen in Russia" was a reason for persecution and relevantly nothing more. In taking that approach, the Tribunal had constructively failed to exercise jurisdiction (at 394 [25] per Gummow and Callinan JJ; at 406 [86] per Kirby J; at 408 [95] per Hayne J). The Tribunal's obligation to consider a claim extends beyond those claims which have been clearly articulated. The question of the extent of the Tribunal's obligation to consider a claim not clearly articulated before it was considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1. The Full Court of this Court (Black CJ, French and Selway JJ) said (at 18 [58] and 22 [68]): "The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263 ; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 ; (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. ... Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov . A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal."