Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: followed
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 the High Court considered the task of the Tribunal where an applicant claimed persecution on the basis of membership of a particular social group. The majority (Gummow, Hayne and Callinan JJ) said that the task of the Tribunal involved a number of steps, namely: In this case it appears that the Tribunal gave consideration to whether the appellants, in particular the male appellant, was a member of a particular social group. In particular, I note the following passage from the reasons for decision of the Tribunal including: The Tribunal has not accepted that the applicant has been in any way harmed or targeted in the past. Looking to the reasonably foreseeable future, the Tribunal finds to be remote the chance that the applicant would suffer abduction or other serious harm for reason of being a member of the particular social group constituted by wealthy, middle class persons or wealthy middle class businessmen . The Tribunal finds this to be the case in spite of his past associations with Tamil people and military officers. For similar reasons, the Tribunal finds to be remote the chance that the applicant wife would suffer abduction or persecution for reason of membership of such a group .(emphasis added) Elsewhere in its reasons, the Tribunal also observed: Submissions to the Tribunal have attached emphasis to the risk of abduction of wealthy middle class citizens or businessmen. The Tribunal is willing to accept for the purposes of this decision that such people constitute a particular social group . Nevertheless, it finds to be remote the chance that the applicant would suffer abduction or any other harm for reason of the membership of such a group if he were to return to Sri Lanka. (emphasis added) At the hearing before me, Ms McWilliam for the appellants strongly contended that the decision of the Tribunal was fatally attended by jurisdictional error because, notwithstanding these statements in the Tribunal's reasons, the Tribunal also obviously considered a relevant issue to be the ethnicity of the appellants, specifically the fact that they are Sinhalese and the impact this had on the likelihood of abduction. The appellants' submissions stressed the irrelevancy of the ethnicity of the appellants as a factor in the determination by the Tribunal as to whether the appellants had a well-founded fear of persecution for reasons of their membership of their particular social group, which was wealthy, middle class businessmen. In particular, the appellants note that, after the second passage I quoted from the reasons for decision of the Tribunal, the Tribunal continued: In making this finding, the Tribunal has carefully considered all of the evidence, including the written statements and other witness evidence provided to the Tribunal. For reasons set out above, the Tribunal does not accept that the applicant has in the past in any way suffered harm at the hands of the Karuna group or any other group accused of involvement in abductions. As the Tribunal has put to the applicants, the available independent country information indicates that it is primarily Tamils and other minority groups who have been the victims of abduction. Indeed, the reports submitted by the applicants refer largely to Tamils and also Muslims as victims of such harm. The Tribunal has been provided with articles indicating that Sinhalese account for 9.1% of those killed in Sri Lanka and for 3% of abductions (to the extent that the ethnicity of victims is known). The appellants submitted that this approach is contrary to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389. However relevantly in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 Finkelstein J observed: [18] The Appellant contended before this Court that this was an impermissible line of reasoning. He argued that the steps outlined 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 is 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. ... [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. Ms Wheatley for the first respondent also directed my attention to recent comments of Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [50] where, after referring to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389 , his Honour said: Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group ... If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail ...