Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: cited
In the circumstances the Tribunal was required to determine whether low caste Hindus (ie Dalits) were capable of constituting a social group for the purposes of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together 'the Convention'). If it answered that question affirmatively, it was required to determine whether the appellant was a member of that social group. If it answered that question affirmatively, it had then to deal with the questions whether the appellant feared persecution if he returned to India, whether his fear was well-founded and whether his fear was by reason of his membership of the social group constituted by Dalits ( Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 per Gummow and Callinan JJ, with whom Hayne J agreed, at [26]). 52 The reasons for decision of the Tribunal reveal that it did not follow the above process of reasoning. Rather it either accepted or assumed that the appellant was a member of a social group for the purposes of the Convention. It seems that the social group that it had in mind was either constituted by, or included in its membership, both Sindhis and Dalits as it proceeded on the basis that it was essentially the same to be a Sindhi and a Dalit. It then had regard to information concerning the treatment in India of members of the Sindhi community, including information which suggested that, generally speaking, the Sindhi community in Maharashtra State is not ill-treated. It thereafter noted, and apparently accepted, an Amnesty International report that Dalits 'are routinely subjected to beatings, mutilation, murder, rape, and destruction of property' . It then concluded, consistently with its assumption that it was essentially the same to be a Sindhi and a Dalit, that it was: 'not satisfied that being low caste (Dalit and Sindhi), without more, means that there is a real chance of the [appellant] being persecuted as contemplated by the Convention, by the Shiv Sena, and/or the Indian authorities, and/or upper caste people.' 53 In my view, it is plain that because the Tribunal proceeded on the basis that it was essentially the same to be a Sindhi and a Dalit, it took into account material concerning the treatment in India of Sindhis when determining whether the appellant had a well-founded fear of persecution for reason of his membership of a particular social group. In doing so the Tribunal misunderstood and failed properly to deal with the claim advanced by the appellant. The social group of which the appellant is to be understood to have claimed membership was constituted by Dalits only; it did not include all Sindhis. Dalits and Sindhis are not the same and, as I have concluded above, the appellant did not assert that they are the same. In proceeding as it did the Tribunal constructively failed to exercise its jurisdiction because it did not address the claim advanced by the appellant ( Dranichnikov 197 ALR at [25]-[32]). 54 In retrospect it can be seen that both the Minister and the appellant could have provided greater assistance to the Federal Magistrate. His Honour would almost certainly have benefited from evidence of the kind now contained in the affidavit of Professor Jayaraman. However, more informal ways of clarifying the meaning of the terms Sindhi and Dalit were open to the parties. 55 For the reasons outlined above his Honour erred in concluding that the Tribunal addressed the claim advanced by the appellant. The first ground of appeal is made out. 56 The second ground of appeal is properly understood, it seems to me, as an alternate ground to the first ground of appeal. On the assumption, which is contrary to my finding, that the Tribunal did recognise that being a Sindhi and being a Dalit was not essentially the same, it made no finding as to why, having regard to the Amnesty International report which it apparently accepted, the appellant did not have a well-founded fear of persecution as a member of the social group constituted by Dalits. The explanation for its apparent failure to apply the real chance test in this regard is to be found, in my view, in its failure to distinguish between the two social groups, Sindhis and Dalits. 57 The appeal will be allowed and the orders made by the Federal Magistrates Court on 18 January 2007 set aside. In lieu thereof it will be ordered that orders issue in the nature of certiorari quashing the decision of the Tribunal and in the nature of mandamus requiring the Tribunal to determine the appellant's application for review of the decision of the delegate of the Minister according to law. The first respondent will be ordered to pay the appellant's costs in the Federal Magistrates Court and on appeal. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 8 June 2007 Counsel for the Appellant: Mr T Silva Solicitor for the Appellant: Silva Solicitors Counsel for the First Respondent: Ms SA Sirtes Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance Date of Hearing: 2 May 2007 and 28 May 2007 Date of Judgment: 8 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/854.html