FEDERAL COURT OF AUSTRALIA

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000]

FCA 1801

MIGRATION ‑ application for protection visa – whether claimed fear referable to membership of particular social group – whether Tribunal erred in failing to consider ground of political opinion – where political opinion not in issue before Tribunal – application to Tribunal for review of its decision – refusal to consider invalid application – whether judicially-reviewable decision – application for bridging visa – whether refusal to consider invalid application – whether judicially-reviewable decision – futility of remittal

Migration Act 1958, ss 48A, 48B, 416, 419, 475, 478(1)(b), 485.

Judiciary Act 1903, s 39B

Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598, referred to

Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at 450-452, referred to

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 74 ALJR 549, applied

SERGEY DRANICHNIKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q13 OF 2000

Q14 OF 2000

JUDGES:       WHITLAM, TAMBERLIN & SUNDBERG JJ

DATE:            14 DECEMBER 2000

PLACE:          SYDNEY (HEARD AT BRISBANE)

On appeal from a Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     The appellant, Sergey Dranichnikov, is a Russian national.  He brought two proceedings against the respondent (“the Minister”) under the Migration Act 1958 (“the Act”).  On 7 February 2000 Kiefel J made orders dismissing each of those proceedings.  These are appeals from those orders.

2                     The proceedings arose out of a decision refusing to grant a protection visa under the Act.  To be eligible for a protection visa, a person must be a refugee as defined in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as “the Convention”).  So far as is presently relevant, Art 1A(2) of the Convention defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and . . . owing to such fear, is unwilling to avail himself of the protection of that country.”

Background

3                     Mr Dranichnikov comes from Vladivostock.  On 8 January 1997 he, his wife and their daughter entered Australia on tourist visas which had been granted in Moscow on 18 December 1996.

4                     On 2 April 1997 Mr Dranichnikov applied for a protection visa.  The application was made at the Brisbane office of the Department of Immigration and Multicultural Affairs (“the Department”).  Applications were also made by his wife and on behalf of his daughter, each of whom simply made claims to be members of the same family unit.  The tourist visas of Mr Dranichnikov and his family were cancelled, and they were granted bridging visas.

5                     Part C of the approved form of application for a protection visa contained five questions relating to an applicant’s reasons for claiming to be a refugee.  Mr Dranichnikov did not answer these questions directly one by one.  Instead, he attached what he described as a “submission”.  In that document Mr Dranichnikov said that he was the manager of a small firm employing eight people in a service industry; referred to conditions in Russia, such as the murder rate and prevalence of crime, the vulnerability of “entrepreneurs” and the collusion of security authorities; mentioned a specific incident in February 1994, in which he had been wounded in a knife attack, and the unwillingness of the police subsequently to investigate this crime; and said that he had organised protest meetings and had spoken out against the security authorities.  Mr Dranichnikov did not, in terms, link any event to a Convention reason, but said that he was “someone who belongs to the social group of entrepreneurs” and that he now lived in constant fear. 

6                     On 20 May 1997 a delegate of the Minister refused to grant the protection visas.  In his reasons for decision, the delegate said:

“3.3.1      The applicant[’s] claim is based on the principle that he belongs to a particular social group of “Entrepreneurs” – as a businessman in Russia, he is at risk from the criminal organisations that operate in Russia and who have links with the authorities.  He states that his profile is raised because he organised anti-crime meetings and spoke out in public against the authorities [sic] inability to defeat crime.”

The delegate acknowledged that there was a major crime problem in Russia.  However, he referred to the well-known statement of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, and said:

“3.3.5         . . .  I do not accept that there is evidence to suggest that there is general persecution of businessmen in Russia.  I consider that the applicant’s claimed fear is an individual one based on the applicant’s personal business activities.  These are criminal actions directed by the perception that the applicant as an individual is a worthy target for intimidation by the criminal elements of society.  I do not consider that the applicant would be subject to persecution for a Convention reason if he returns to Russia.”

7                     Mr Dranichnikov retained a Brisbane solicitor, Thomas P. Drakopoulos, who was also a migration agent, to advise on an application for review by the Refugee Review Tribunal (“the Tribunal”).  On 4 June 1997 Mr Dranichnikov requested access to the Department’s file on his protection visa application.  That file was not released until 27 June 1997, but in the meantime on 19 June 1997 Mr Dranichnikov applied to the Tribunal for review of the delegate’s decision.  This was merely a “holding” application which contained no substantial reasons for review.  Mr Drakopoulos said, in his letter lodging the application for review, that he anticipated forwarding a detailed submission by the end of July 1997 after the Department’s file had been made available.

8                     In January 1998 Mr Dranichnikov and his family moved from Brisbane to Sydney.  The Tribunal arranged for Mr Dranichnikov to appear before it in Sydney on 7 August 1998. 

9                     In advance of that appointment, Mr Drakopoulos sent the Tribunal a five-page letter dated 3 August 1998 on behalf of Mr Dranichnikov.  In that letter, after referring to his client’s active involvement in organizing protest meetings where he openly criticised law enforcement agencies in Russia, the solicitor said:

“Mr Dranichnikov acknowledges that his actions raised his profile within the community and the threats against himself and his family can in part be attributed to his involvement in these activities.  In considering the applicant’s situation some weight must be given to these factors and their relevance taken into account.  However, there is no suggestion that these components of the situation in themselves are sufficient to establish reasons for Mr Dranichnikov’s fear of persecution.”  (p. 1)

Mr Drakopoulos went on to refer to the knife attack on Mr Dranichnikov in February 1994 and to “the horrors that are faced on a daily basis by business people in Russia.”  A number of newspaper articles were enclosed, including one dated 8 October 1997 reporting the fatal stabbing of Mrs Dranichnikov’s first cousin in Vladivostock.  Mr Drakopoulos said:

“We would respectfully submit that our client as a Russian businessman does form a particular social group and that social group has grave fears for its safety in Russia due to the breakdown in law and order and the high level of corruption in the Justice system in that country.”  (p. 4)

He accepted that Ram was a case where the refugee claimant was targeted because of his wealth.  However, Mr Drakopoulos submitted that this case was different.  He said:

“. . .  Mr Dranichnikov is a member of a particular social group that of businessman and that group is present throughout Russia and from the material that the Tribunal now has before it is a group that is being persecuted on a daily basis to the point of being murdered.

Persecution may be defined in a variety of ways although there is no accepted definition of persecution.  However, it is accepted that it is not only governments which persecute.  Persecution also occurs when the state fails to protect individuals from offensive or threatening acts committed by others.  Inaction by governments to protect individuals whether it be by choice or enforced constitutes persecution.

Our client faces returning to a country where it has become increasingly more difficult to differentiate between the criminal element and a government who at best tolerates persecution and at worst condones it.  Mr Dranichnikov is therefore well aware that his return to his country of origin to continue working as a legitimate businessman is in effect a step towards signing his own death warrant.  If he were to return to Russia he is cognisant that he will have no protection from the criminal element and faces the very real possibility of persecution/death from a corrupt government.” (p. 5)

10                  Mr Dranichnikov and his wife appeared before the Tribunal on 7 August 1998.  They gave evidence with the assistance of an interpreter.  Mr Drakopoulos participated by telephone from Brisbane.

The Decision of the Refugee Review Tribunal

11                  On 11 August 1998 the Tribunal handed down its decision in Melbourne.  It affirmed the delegate’s decision.  The Tribunal’s reasons are quite short.  It referred to Mr Dranichnikov’s claims and the evidence before it in the following passage:

“Only the applicant husband has made specific claims under the Refugees Convention.  For convenience therefore, I will refer to the applicant husband as the Applicant.

The Applicant’s claims are set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on Friday, 7 August 1998.  They are as follows:

The Applicant claims that he is a businessman residing in Vladivostok; he is the General manager of ‘Starling Co. Ltd.’ a company employing eight people.  He has held this position since October 1993.

The Applicant claims that at the end of 1993 and the beginning of 1994 there were a number of murders and attempted murders of entrepreneurs.  He openly criticised the authorities for their lack of effort in solving these crimes; he did this at public meetings.

The Applicant claims that on 15 February 1994 an attempt was made on his life; he was stabbed and had to undergo emergency surgery.  The police were not interested in catching the criminal, indeed he claims that after his recovery when he approached the police about their progress he was asked to sign a paper requesting the termination of the investigation.  Since he felt threatened he signed the paper.

The Applicant claims that since that time, he and his family live in constant fear.  Since his arrival in Australia he has read various articles and seen various broadcasts which have heightened his fear of returning to Russia as he believes he would be murdered.  The Applicant states that his wife’s first cousin Vladen Markovic Makarov was murdered in Vladivostok (Copy of newspaper article was provided).”  (pp. 4-5)

The Tribunal then set out findings and reasons as follows:

“In order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution.  He must have a subjective fear, and that fear must be well-founded when considered on an objective basis.  There must be a real chance that the applicant will be persecuted for a Convention reason if he returns to Russia.

The Applicant is a 37 year old male national of Russia.  He and his family entered Australia on 6 January 1997 using passports in their own names.  They were granted Australian visitors visas in Moscow on 18 December 1996 with validity of three months from the date of entry, i.e. until 8 April 1997.

The Tribunal regards the Applicant as a credible witness who provided clear answers to the questions; his wife also presented evidence which the Tribunals [sic] finds credible.  The Applicant described in detail the situation in Russia with regard to corruption and inability or unwillingness of the security forces to deal with crime.  The Tribunal accepts that the Applicant was the General Manager of a company which provided real estate and legal services associated with property in Vladivostock; it accepts that this company was set up with a number of partners and that the company was a smallish enterprise with a turnover of approximately AUD15,000 per month.  The Tribunal also accepts that the Applicant was, on the 15 February 1994, accosted when he returned home and stabbed.  It accepts that the Applicant received emergency surgery for his wounds.

The Tribunal was informed of the circumstances surrounding the Applicant’s actions in relation to trying to stamp out the attacks on entrepreneurs which had been increasing in the latter part of 1993 and the beginning of 1994.  He had joined a number of other business people and had made representations to the Mayor and attended public meetings to highlight the plague of corruption and lawlessness.  In order to pursue his objective in the field in which he was employed, he worked for the formation of a committee for the registration of property titles; this was achieved.  Both the Applicant and his wife gave a number of examples of police inaction after crimes had been committed and standover tactics employed when citizens were doing the right thing and reporting instances to the police.  Indeed the Applicant claims that the police put pressure on him to sign a letter requesting the discontinuation of the investigation into the attempt on his own life.  He signed the letter because he felt that request as a threat.  This was in late February or early March 1994.

The Tribunal accepts that the Applicant has a subjective fear of returning to Russia because of the events which he described; the Tribunal must now examine whether the harm feared is grounded in the Convention.

The Applicant fears harm as a result of criminal activities by unknown persons.  The Tribunal finds that the Applicant’s subjective fear is not related to any of the convention reasons, i.e. it is not for reasons of race, nationality, religion or membership of a particular social group or political opinion.  Fear of criminal conduct has been discussed in Thalary v MIEA (unreported, Federal Court of Australia, Mansfield, J.  4 April 1997), Magyari v MIMA (unreported, Federal Court of Australia, O’Loughlin J 22 May 1997) and Velmurugu v MIMA & Anor (1997) 44 ALD 253 as well as Maningat v MIMA (unreported, Federal Court of Australia, Tamberlin J 30 April 1998) and Jarrin v MIMA (unreported, Federal Court, Madgwick J 25 June 1998).  These cases confirm that if the criminal conduct feared is not motivated by a Convention reason, the claims have no nexus with the Convention.

The Tribunal finds that the harm feared is not motivated by a Convention reason, hence the Tribunal need not proceed to a consideration of whether the fear is well-founded.  This is further discussed below.

The Applicant’s adviser had posited in his submission that the Applicant was a member of a particular social group, namely, businessmen in Russia.  Even if the Tribunal were to accept this proposition, there is no indication that the persecution is ‘for reasons of’ membership of this group.  Following the attempt on the Applicant’s life in 1994 the Applicant does not report anything other than dissatisfaction with the society and the political system as a whole; there have been no further attempts to harm him or his family, nor are there indications of behaviour on the part of the Applicant which would attract the adverse attention of anyone for reasons of being a businessman in Russia.  The actions which the Applicant described, which he took with other businessmen, in making representations to the Mayor were those of a concerned citizen and not part of a cognizable unit which could be considered a particular social group under the Convention.”  (pp. 5-6)

After next referring to what it described as the “motivational requirement for persecution”, as explained in Ram, the Tribunal concluded:

“Having considered the circumstances of the case cumulatively, the Tribunal finds that the Applicant’s claims are not grounded in the Refugees’ Convention.

No specific Convention claims were made by or on behalf of the applicant’s wife and child, and there is no basis on which the Tribunal can be satisfied that they are refugees.  The fate of their application therefore depends on the outcome of the Applicant’s application.  As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that his wife and child cannot be granted a protection visa.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Therefore the applicants do not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”  (pp 7-8)

Events following the Decision of the Tribunal

12                  On 12 August 1998 the Deputy Registrar of the Tribunal’s Melbourne Registry posted to Mr Dranichnikov a copy of the Tribunal’s decision and reasons.  The letter stated:

“The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa.

I enclose a copy of the Tribunal’s decision and reasons.  A copy of the decision has also been sent to the Department of Immigration and Multicultural Affairs (DIMA).

The Tribunal’s file on your case is now closed.

You may have a right of review of this decision in the courts.  You may wish to get independent advice about this.

If you want the Federal Court of Australia to review your case you must apply within thirty-five (35) days after the date of this letter and you must name the Minister for Immigration and Multicultural Affairs as the respondent and not the Tribunal.

If you have any questions about your current status in Australia you should contact your regional office of DIMA, not the Tribunal.”

13                  Mr Dranichnikov received that letter on 14 August 1998.  Four days later he visited the Sydney Registry of the Tribunal and obtained the approved form for making review applications to the Tribunal.  Mr Dranichnikov and his wife completed that form, stating that they had applied to the Tribunal before and giving correct details of the Tribunal’s file number, the Department’s file number and the date of the delegate’s decision.  They lodged the form, together with a statement by Mr Dranichnikov and copies of several newspaper articles, at the Sydney Registry of the Tribunal on 8 September 1998.  In his statement Mr Dranichnikov claimed the attack in February 1994 was “by reason of my political opinion against government politics”.  On the same day, 8 September 1998, the Deputy Registrar of the Tribunal’s Sydney Registry wrote to Mr Dranichnikov, acknowledging receipt of the application for review.  The Deputy Registrar gave particulars of a new file number to quote in any future correspondence and asked Mr Dranichnikov not to send “any documents or arguments which you have already given to the Tribunal”.

14                  However, in that letter of 8 September 1998, the Deputy Registrar also stated: “When we receive the Department’s documents, the Tribunal will decide if your application is valid.”  That prompted Mr Dranichnikov to reply on 17 September 1998 as follows:

“I ask for you to decide that my application for review of decision on 8 September 1998 is valid by reason:

I had not made a full declaration about my application because I concern for parents and friends still living in Russia.  I concern that any information may become known to official government agencies of Russia.

Now I am ready to provide to the Tribunal all evidence and documents of my case.

I hope that you [sic] will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal.”

15                  On 29 September 1998 Mrs Dranichnikov wrote to the Tribunal in similar terms and also asked to be recognized “as second applicant because I was involved in activities and expressed my own political opinion against authorities.”  She sent her own “separate statement” of twenty pages together with copies of correspondence, newspaper articles and reports referred to in her statement.  The enclosures comprised some 215 pages of material.

16                  By letter dated 9 October 1998 Mr Dranichnikov sent the Tribunal in Sydney another submission of thirty-four pages together with further copies of reports and articles.  In this submission he said:

“I think that Mr Drakopoulos made an incorrect conclusion about the reason of our persecution.  We are businessmen but we were not persecuted of reason of membership to this group.  My wife and I were persecuted of reason of POLITICAL OPINION."

17                  At the end of October 1998 Mr Dranichnikov and his family moved back to Brisbane from Sydney.  On 2 December 1998 Mr Dranichnikov wrote to the Tribunal’s Sydney office forwarding a videotape of an October 1997 television commercial for his business in Vladivostock and copies of yet more newspaper articles.  The Tribunal’s new file had in the meantime been transferred from the Sydney Registry to the Melbourne Registry.  The Deputy Registrar of the Melbourne Registry subsequently wrote to Mr Dranichnikov on 4 January 1999 informing him of this fact.

18                  Eventually, on 21 January 1999, the Deputy Registrar of the Tribunal’s Melbourne Registry wrote to Mr Dranichnikov informing him that the Tribunal had no jurisdiction under the Act to consider the application received on 8 September 1998.  The Deputy Registrar said:

“The Migration Act does not give the Tribunal any jurisdiction to review one of its own decisions.  Nor does a Tribunal Member have any power to re-open or reconsider a decision after it has been made.  This means that your current application is not valid and the Tribunal cannot conduct a further review in this case.”

19                  Following receipt of that letter, Mr and Mrs Dranichnikov attended the Department’s Brisbane office on 29 January 1999.  An officer of the Department, Glen Andersson, pointed out that their bridging visas ceased to have effect 28 days after notification of the Tribunal’s decision made on 11 August 1998.  Mr Andersson encouraged Mr and Mrs Dranichnikov to request the Minister to exercise his power under s 417(1) of the Act and, then, to apply for a Bridging E visa.  They took this advice and Mr Andersson, as delegate of the Minister, granted the family Bridging E visas.

20                  On 15 February 1999 Mr Dranichnikov commenced in this Court proceeding no. Q29 of 1999 by lodging an application to review the Tribunal’s decision of 11 August 1998.  At the same time he filed notice of a motion for an extension of time for making that application.  On 17 March 1999 the Minister filed a notice of objection to the application’s competency on the ground that it was not lodged within 28 days of Mr Dranichnikov being notified of the Tribunal’s decision, as required by s 478(1)(b) of the Act.

21                  In the meantime, on 16 March 1999, Mr and Mrs Dranichnikov lodged applications for Bridging A visas at the Department’s Brisbane office, enclosing a copy of the application for review lodged with the Court on 15 February 1999.  By letter dated 26 March 1999 Geoff Heath, an officer of the Department, wrote to Mr Dranichnikov, informing him that:

“As you do not presently hold a Bridging Visa A or B and as our legal advice is that your application for a Protection Visa has been finally determined, you do not meet the requirements of Schedule 1, Item 1301, subclause (3)(c) of the Migration Regulations and so cannot make a valid application for a Bridging Visa A.  I have therefore determined that the Form 1005 you left with DIMA officer Glenn [sic] Andersson (which was never receipted by the Department), is not a valid application within the requirements of Section 46 of the Migration Act 1958 and so cannot be considered.”

22                  On 21 April 1999 Mr Dranichnikov commenced proceeding no. Q114 of 1999 seeking to review Mr Heath’s decision.  On 23 June 1999 the Minister filed a notice of objection to this application’s competency too on the ground that Mr Heath’s decision was not a “judicially-reviewable decision” under s 475 of the Act.

The Hearing in the Court Below

23                  Matters nos Q 29 of 1999 and Q114 of 1999 were heard together by Kiefel J on 28 September 1999.  In matter no. Q29 of 1999 the bundle of relevant documents prepared by the Minister comprised 523 pages; in matter no. Q114 of 1999 it comprised 78 pages.  Those bundles were marked respectively “A” and “B” before her Honour.

24                  At the hearing Mr Dranichnikov was permitted to present his case in terms of an amended application annexed to an affidavit sworn by him and filed on 15 September 1999 in matter no. Q29 of 1999, although no amended application was ever actually filed.  Mr Dranichnikov also sought an order under s 50 of the Federal Court of Australia Act 1976 (“the Federal Court Act”), but her Honour made no such order during the hearing.

25                  Mr Dranichnikov read two affidavits made by him on 20 September 1999.  One, which was filed in matter no. Q29 of 1999, incorporated a submission of 52 pages containing two parts.  Part I (pp 1-24) dealt with the time for filing the application to review the Tribunal’s decision of 11 August 1998.  Part II (pp 25-52) addressed the correctness of the position adopted in the letter dated 21 January 1999 from the Deputy Registrar of the Tribunal’s Melbourne Registry.  The other affidavit was filed in matter no. Q114 of 1999 and incorporated a submission of ten pages, which was headed Part III and addressed the decision of Mr Heath.  In turn, the submissions in both those affidavits referred to an earlier affidavit sworn by Mr Dranichnikov on 7 May 1999 and filed in matter no. Q29 of 1999.  That affidavit incorporated a submission by Mr Dranichnikov dated 6 May 1999 comprising eighteen pages, to which were annexed 112 pages of copied documents.

26                  Mr Dranichnikov also read an affidavit made by his wife on 28 September 1999, which incorporated a statement of eight pages.  In that statement, Mrs Dranichnikov said that, when she gave oral evidence to the Tribunal on 7 August 1998, she

“. . . suggested [sic] . . . documents in our support – letters from Russia, medical certificate of my husband from Australian doctor, the articles about current political situation in Vladivostock and Russia.  Then [the tribunal member] said that they well know about situation in country and refused to receive my documents.”

27                  Many statements made in the affidavits read by Mr Dranichnikov raised allegations that had never been made to the Tribunal.  In addition, annexed to those affidavits were copies of documents that had never been submitted to the Tribunal.  Kiefel J ruled that such material would not be received in evidence. However, her Honour indicated that she would treat argumentative statements in the affidavits as mere submissions.  Oral evidence was given by Mr Dranichnikov about the Tribunal hearing on 7 August 1998, his receipt of the letter dated 12 August 1998 from the Tribunal’s Deputy Registrar and his visit to the Sydney Registry of the Tribunal four days later when he obtained the application form that he subsequently lodged.  In address, Mr Dranichnikov largely repeated his written submissions.

The Judgment at First Instance

28                  One thing that did emerge more clearly from the amended application to the Court propounded by Mr Dranichnikov and from his submissions was that he also sought judicial review of the decision set out in the letter dated 21 January 1999 from the Deputy Registrar of the Tribunal’s Melbourne Registry.  In her reasons for judgment [2000] FCA 63, Kiefel J said [14] that that challenge was regarded by Mr Dranichnikov as his “principal” claim.  Accordingly, her Honour dealt first with the refusal to entertain the application for review lodged on 8 September 1998.

29                  Kiefel J said [18] that, if the decision of 11 August 1998 finally determined Mr Dranichnikov’s application for a protection visa, the Tribunal did not have jurisdiction to entertain a further application to review its own decision.  Her Honour said:

“19      The applicant submits that the application was not finally determined because the Tribunal, at the time it made the determination, was to receive further material from him.  The facts relevant to this question are relevant also to the issue of denial of procedural fairness in connexion with the substantive application.  The applicant’s evidence was that the solicitor acting for him in the period prior to the hearing by the Tribunal did not send all of the applicant’s documents to the Tribunal.  The Tribunal was advised, when the application was lodged, that some further material might be lodged sometime after.  That material was identified as documents from the departmental file, which might become available following a request for that information.  The material which the applicant sought to put before the Tribunal, as far as I could discern, comprised further medical evidence relating to the attack upon him and further evidence of threats to his family and their fear of harm.  At various points the applicant alleged that the Tribunal declined to consider his further material, but I understood this to refer to the Tribunal’s refusal to deal with his second application.

20        The Tribunal’s reasons of 11 August 1998, do not disclose any request for the submission of further material and the applicant’s evidence does not suggest such a request was made or that an adjournment was sought.  There is no suggestion that the Tribunal agreed to await any further documents or submissions.  The applicant says that after the hearing he rang his solicitor and asked him to contact the Tribunal concerning the documentation.  The solicitor advised him to await the decision of the Tribunal, as the hearing had seemed to go well.  The applicant said in evidence that he still wanted to send the documents himself, but the Tribunal determination was made quickly after the hearing, and before he could do so.  He then decided to go to the Tribunal to see about having his additional documents considered.

21        The applicant’s contentions require consideration of the questions whether the Tribunal’s decision was such that it could not be revisited; and whether the Tribunal was required, but failed, to give the applicant an opportunity to present further evidence.  . . .”  (Emphasis supplied)

30                  As to the first question, relying on Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 76 FCR 301, her Honour held [22] that a request that the Tribunal review its decision was not an option available to Mr Dranichnikov.  So far as an opportunity to present further evidence was concerned, her Honour said:

“23.     The decision would, under usual administrative law principles, nevertheless be liable to be set aside if the Tribunal had not acted fairly towards the applicant in the presentation of his case.  Section 476(2)(a) of the Migration Act, however, does not permit this Court to consider any breach of natural justice as a ground for review.  I consider, in any event, that the facts do not disclose any want of procedural fairness.  The course of events, outlined above, discloses a consideration by the applicant as to whether to put material before the Tribunal, but does not establish that the hearing was understood to be of only part of the applicant’s case, and that the Tribunal was awaiting receipt of further information.  It had not been asked to receive such material.”  (Emphasis supplied)

Therefore, her Honour concluded [25] that Mr Dranichnikov’s claim to have the Tribunal review its own decision should be dismissed.

31                  Kiefel J next considered the challenge to the decision made by the Tribunal on 11 August 1998.  Her Honour overruled the Minister’s objection to competency and held that a proper notification of that decision was only effected for the purposes of s 478 of the Act when Mr Dranichnikov received the Deputy Registrar’s letter dated 21 January 1999.  In so holding, she cited the decision of Merkel J in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386.  Her Honour found that Mr Dranichnikov understood, when he received the Deputy Registrar’s letter dated 12 August 1998, that he had to apply to the Court within the time stated in that letter.  Nonetheless, she held [30]–[31] that the intent of s 478 of the Act was frustrated by the Deputy Registrar’s incorrect statement of the period within which such an application must be made. 

32                  Her Honour then moved on to what she described as “the substantive application”, and said:

“32      I have dealt with the allegation of denial of procedural fairness.  A claim of improper purpose in the making of the decision was also made, but upon analysis it amounts to little more than the applicant contending that the wrong result was reached.  It does not relate to the ground as it is generally understood, nor to it as dealt with by s.476.

33        The applicant also makes reference to the prospect of bias in the Tribunal.  The statements made would not support such an inference and they were not made by the Tribunal member who determined the applicant’s application.

34        As to the conclusion reached by the Tribunal that the applicant did not satisfy the requirements for refugee status, my view is that it cannot be impeached for error of law.  The Tribunal had regard to the fear of harm expressed by the applicant in his application, which arose out of concerns that he and his family might become victims of crime.  The Tribunal listed a number of decisions in which it had been held that, if the criminal conduct feared is not motivated by a Convention reason, the claims have no nexus with the Convention (Thalary v Minister for Immigration and Ethnic Affairs [1997] FCA 201, Magyari v Minister for Immigration and Multicultural Affairs [1997] FCA 417 and Velmurugu v Minister for Immigration and Multicultural Affairs & Anor (1997) ALD 253 as well as Maningat v Minister for Immigration and Multicultural Affairs [1998] FCA 443 and Jarrin v Minister for Immigration and Multicultural Affairs [1998] FCA 765.  To these may be added Chand v Minister for Immigration and Multicultural Affairs [1999] FCA 383.  It is apparent from the reasons of the Tribunal that it considered the evidence could not support a finding that it was for reasons of membership of his social group that the applicant might reasonably fear harm.  Such a finding was open to the Tribunal.

35        The Tribunal also observed that the applicant had been subjected to one occasion of harm.  It had not been repeated.  It was not necessary for the Tribunal to go further, given its conclusions as to whether the actions of which he complained could be attributed to a Convention reason.  Had the applicant established the requisite motivation against him or the group to which he belonged, he would have had to go further and satisfy the requirement of persecution (as to which see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 388).”

Accordingly, the application for review of the Tribunal’s decision was dismissed.

33                  In respect of matter no. Q114 of 1999, after describing [10] Mr Dranichnikov’s application for a Bridging A visa as having been “refused” by the letter dated 26 March 1999, Kiefel J held [37] that Mr Heath’s decision was not a judicially-reviewable decision by virtue of s 475(2)(b) of the Act.  That application was thus dismissed for want of jurisdiction.

34                  Her Honour declined to make an order under s 50 of the Federal Court Act.  Her Honour referred to the interest of some countries in discovering the identity of asylum claimants but she went on to say:

“12      Where there is nothing to suggest that the relevant authorities might have such an interest, it does not seem possible to me to apply the section, although the Court may be prepared, in some cases, to accept even slight evidence as to the prospect of an adverse reaction.  It would not seem to me a proper course to make an order under the section whenever asked to do so.  Some basis must be provided.  Here the applicant points to the involvement of the authorities in criminal activities, but there is nothing to suggest that would lead to an interest in him as an applicant.  I do not consider the order to be appropriate.”

35                  Finally, on the question of costs, her Honour said:

“38      The applicant fails on his substantive application, but the Minister’s objection to competency is overruled.  Since that took up the larger part of the proceedings I am presently disinclined to order costs against the applicant.  I will, however, hear the parties further on this question.”

An order was subsequently made that Mr Dranichnikov pay one-third of the Minister’s costs of proceeding no. Q29 of 1999.

The Appeal Papers

36                  The morning of the day fixed for the hearing of these appeals was occupied by entirely futile motions of Mr Dranichnikov seeking leave to appeal from interlocutory orders made by Spender J on 4 April 2000.  The background to those orders can be briefly sketched.

37                  Proceeding no. Q13 of 2000 is the appeal from the orders made by Kiefel J in matter no. Q29 of 1999.  Proceeding no. Q14 of 2000 is the appeal from the order made by Kiefel J in matter no. Q114 of 1999.  When the notice of appeal in each of those proceedings was filed on 23 February 2000, the Registry appointed 15 March 2000 as the date for settling the appeal papers.  However, both appeals were subsequently listed in a call-over to be held on   1 March 2000 for the May 2000 Full Court sittings.

38                  On 1 March 2000 Spender J adjourned the appeals to the call-over for the August 2000 Full Court sittings.  His Honour also gave directions that the appeals be heard together and that the appeal papers be prepared in accordance with an index drafted in the Registry on 29 February 2000 so as to include the transcript of a hearing before Kiefel J, but not a transcript of the Tribunal hearing.

39                  On 14 March 2000 Mr Dranichnikov filed, in each appeal, notice of a motion seeking to have Spender J’s direction about the appeal papers set aside, to have a fresh date appointed for settlement of appeal papers in the Registry, and to have a transcript of the Tribunal hearing included in the appeal papers.  The motions were heard by Spender J on 4 April 2000 and refused with costs.  Mr Dranichnikov filed notices of motion for leave to appeal from those orders on 19 April 2000. 

40                  Those motions were heard together, and leave to appeal was refused in each matter.  Assuming that an appeal lies from a direction given by a single Judge pursuant to s 25(2B)(c) of the Federal Court Act about the conduct of an appeal, the principles that generally guide the exercise of the discretion in respect of leave under s 24(1A) of that Act are well-known: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.  Particular caution is required in granting leave from decisions on points of practice.  In the present case a transcript of the Tribunal hearing was never tendered in the proceedings at first instance.  Spender J took the view that it was not, therefore, relevant to any error of law that could ground an appeal from the decision of Kiefel J.  His Honour observed, however, that Mr Dranichnikov could apply to the Full Court to receive such a transcript in the appeal.  The correctness of Spender J’s decision was not, in our opinion, open to dispute.  Before us, Mr Dranichnikov gave, as an example of an error in the appeal papers, what he said were inaccurate descriptions in the index to the bundle of documents marked “A” before Kiefel J.  This was a quite ridiculous quibble since that was the very form in which that material was received at first instance.  Furthermore, a transcript of the Tribunal hearing did not, on any view, have any relevance to the appeal in proceeding no. Q14 of 2000.

Grounds of Appeal

41                  The grounds stated in Mr Dranichikov’s notices of appeal are not very informative, although it is alleged that the Tribunal had power to review its own decision by virtue of        s 419(3) and s 416 of the Act.  Particulars filed on 20 March 2000 are not much more instructive, except that it is asserted that:

“. . . the Applicant applied for a Protection Visa as a person who owing to well-founded fear of being persecuted for reason of his political opinion, and also membership of a [sic] particular social groups such as, “human rights advocate”, “whistle blower” person who resisted to corruption in Russia.”

42                  The Minister did not cross-appeal from the costs order made by Kiefel J.  However, he did file notice of a contention that her Honour erred in holding that the application for review of the Tribunal’s decision of 11 August 1998 was lodged within the period specified in s 478(1)(b) of the Act.

43                  Mr Dranichnikov filed extensive written submissions prior to the hearing of his appeals.  They are difficult to follow.  In substance, Mr Dranichnikov repeats much of the argument he put to Kiefel J.  In style and layout, his submissions are a confusing mish-mash of excerpts from cases, statutes and treaties combined with factual assertions.  Not only have several of the authorities mentioned by Mr Dranichnikov been overruled, but it is quite apparent that he has no conception of the limited grounds of review available in proceedings under Part 8 of the Act.  This impression was reinforced by the content of Mr Dranichnikov’s address, which stuck fairly closely to the script of those submissions.  In particular, it may be observed generally that Mr Dranichnikov does not seem to appreciate that findings of fact are a matter for the Tribunal and that its findings depend on the material and evidence before it.  The issues on the appeal may conveniently be dealt with in the same order as they were addressed by the primary judge.  However, at the outset, we can say that no reason, at all, has been suggested to show that her Honour’s exercise of discretion under s 50 of the Federal Court Act miscarried.

44                  It may be doubted that the decision of the Tribunal’s Deputy Registrar set out in the letter of 21 January 1999 is a judicially–reviewable decision within the meaning of s 475 of the Act: Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598.  In any event, the decision of the Deputy Registrar was correct.

45                  The statutory provisions relied on by Mr Dranichnikov are not to the point.  Section 419 of the Act has no application to a decision made by a delegate after 28 October 1993, and s 416 merely mirrors s 50 of the Act.  An application for review may not be reopened in a fashion which avoids the limitations imposed by ss 48A and 48B of the Act upon further applications for protection visas.  Once the Tribunal made its decision on 11 August 1998, it could take no further action in the absence of an order of the Court under s 481(1)(b) of the Act.  Since Kiefel J gave judgment, the finality of the Tribunal’s decision-making processes has again been emphasized in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 74 ALJR 549, where Gleeson CJ, McHugh, Gummow and Hayne JJ said (at 555):

“[30]     It would be inconsistent with [the] scheme [of the Act] and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the tribunal as provisional in nature.  In the situation where the tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate . . ., the Act did not confer upon the tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.”

46                  Leaving aside the jurisdictional point raised by the Minister’s notice of contention, we now turn to what Kiefel J described as “the substantive application”.  Here we think a criticism Mr Dranichnikov makes of one aspect of her Honour’s judgment on the alleged denial of procedural fairness is justified. We have highlighted in [29] and [30] above what her Honour said about the tender of further material.  We think that, both in his evidence and in his address in the court below, Mr Dranichnikov made it clear that he was complaining about the incident described in the excerpt from his wife’s affidavit that we have set out in [26] above.  In this respect, then, it seems that her Honour may have misunderstood the evidence.

47                  However, this slight error was of no significance.  The documents proffered by Mrs Dranichnikov to the Tribunal were never identified for her Honour.  One is left to guess whether they formed part of the documentary tender of the material sent to the Tribunal by Mr and Mrs Dranichnikov after 8 September 1994.  It is thus impossible to say whether such documents were of any importance for the evaluation of Mr Dranichnikov’s claims respecting a well-founded fear of persecution.  In any event, as Kiefel J correctly observed, s 476(2) of the Act excludes from the jurisdiction of this Court review of the Tribunal’s decision on the ground of breach of the rules of natural justice.  Nor does the Tribunal’s rejection of the material proffered by Mrs Dranichnikov indicate, of itself, that it has failed to give a person the opportunity required by s 425(1)(a) of the Act, or that its decision was affected by actual bias so as to make out the ground specified in s 476(1)(f) of the Act.  The Tribunal is under no obligation to fill its files with every piece of paper pressed upon it by a person appearing before it to give evidence.

48                  The main thrust of Mr Dranichnikov’s challenge to Kiefel J’s order dismissing his “substantive application” was hinted at in the particulars filed on 20 March 2000, which we have set out in [41] above.  He repeated before us a submission made to her Honour that the Tribunal erred in failing to consider whether his fear related to the Convention ground of “political opinion”.  In support of this alleged error of law, Mr Dranichnikov relied particularly on the decisions in V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 and C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366.  In that last case Wilcox J made the point (at 375) that, depending upon the circumstances, resistance to systemic corruption of, or criminality by, government officers might be regarded as a manifestation of “political opinion” within the meaning of Art 1A(2) of the Convention.

49                  In the present case it is true that the Tribunal did not determine whether Mr Dranichnikov’s involvement in protest meetings about corruption and illegality should be characterized as in a manifestation of political opinion.  However, such involvement was not central to Mr Dranichnikov’s case.  At the outset he put the sole criminal act committed against him in the context of his exposure to risk of harm as an “entrepreneur”.  The Convention ground of “particular social group” was subsequently made the subject of very focussed submissions by Mr Drakopoulos.  The public meetings and Mr Dranichnikov’s participation in them were simply a part of his story of the fears allegedly held by business people in Russia.  It was only after the Tribunal had given its decision that Mr Dranichnikov first claimed, in his statement lodged on 8 September 1998, that the reason for the attack upon him was his “political opinion”.  The Tribunal must, of course, deal with the case raised by the material and evidence before it.  An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.  Here Mr Dranichnikov did not claim, prior to the Tribunal making its decision, that he feared persecution, if he returned to Russia, because of his known opposition to corruption or illegality.  Contrary to his submissions, the evidence shows that, prior to 11 August 1998, he did not claim that he and his wife were “human rights advocates” or “whistle blowers”.  Kiefel J explained, in the excerpt from her reasons for judgment set out in [32] above, why the Tribunal’s conclusion regarding the fear of harm “expressed” by Mr Dranichnikov could not be impeached for error of law.  What her Honour said about the Tribunal’s treatment of the claims actually made by Mr Dranichnikov was, in our opinion, plainly correct.

50                  It follows that Mr Dranichnikov has failed to show that her Honour erred in holding that none of the grounds of review upon which he relied in matter no. Q29 of 1999 was made out.  This conclusion makes it unnecessary to consider the Minister’s notice of contention on the jurisdiction point.  This is fortuitous.  Whilst the Minister was content to distinguish the decision of Merkel J in Wang on the facts in the present case, it may have become necessary to consider the correctness of that decision, as well as that of Kiefel J.  It would have been unfortunate to have to consider important issues touching the construction of s 478(1)(b) and (2) of the Act urged by the Minister when the other party was unrepresented.  The appeal in proceeding no. Q13 of 2000 should be dismissed with costs.

51                  The other appeal concerns Mr Dranichnikov’s application for a Bridging A visa.  Kiefel J acceded to the Minister’s submission that a decision refusing to grant such a visa was, as at 26 March 1999, an internally-reviewable decision within the meaning of s 338 of the Act.  That may be so.  However, as the terms of Mr Heath’s letter set out in [21] above clearly show, Mr Dranichnikov’s application was not considered because Mr Heath thought that it had not been validly made.  There was, in fact, no decision refusing to grant Mr Dranichnikov a Bridging A visa, which could have been made the subject of an application for internal review.  In this respect, then, her Honour was led into error. 

52                  The decision of Mr Heath was, nonetheless, not a judicially-reviewable decision within the meaning of s 475 of the Act.  Yet Mr Dranichnikov wishes to have his application considered and invokes the jurisdiction of the Court under s 39B of the Judiciary Act 1903.  Since Mr Heath’s decision was also not a decision covered by s 475(2) of the Act, s 485(1) of the Act does not deprive the Court of that jurisdiction: Minister for Immigration and Multicultural Affairs v A (1999)91 FCR 435 at 450-452.

53                  Section 47 of the Act obliges the Minister to consider a valid application for a visa.  Section 46 provides that an application for a visa is only valid if it is made in the way required by regulations prescribing the way for making such an application.  Item 1301 in Schedule 1 to the Migration Regulations 1994 makes such a provision in respect of Bridging A visas.  Paragraph 1301(3)(c) provides:

“Applicant:

(i)                 has made a valid application for a substantive visa that has not been finally determined; or

(ii)               has applied, within statutory time limits, for judicial review of a decision to refuse a substantive visa and the judicial proceedings (including proceedings on appeal, if any) have not been completed.”

This was the provision to which Mr Heath referred in his letter of 26 March 1999.

54                  Mr Heath must have taken the view that Mr Dranichnikov had not applied for judicial review of the decision refusing him a protection visa “within statutory time limits”.  If the decision of Kiefel J on this point be correct, Mr Dranichnikov met that requirement of par 1301(3)(c).  However, it does not become necessary to decide that jurisdictional point for the purposes of this second appeal.  Since the first appeal should, in our opinion, be dismissed, the relevant judicial proceedings will then be “completed”.  Accordingly, it would be futile to order the Minister to consider Mr Dranichnikov’s application for the Bridging A visa.  The appeal in proceeding no. Q14 of 2000 should also be dismissed with costs.

Postscript

55                  Mr Dranichnikov was permitted to conduct his appeal with the assistance of a Russian interpreter arranged by the Court’s Registry.  He addressed the Court in English, but what was said by the members of the Court and by counsel for the Minister was translated for him by the interpreter.  After his motions relating to the appeal papers were refused, Mr Dranichnikov dispensed with the use of the interpreter (ostensibly because he considered her incompetent) and requested an adjournment of his appeals until another interpreter was arranged.  This request was refused.  In our view, it was a blatant ploy to delay the hearing of his appeals.  The transcript of the hearing before Kiefel J shows that Mr Dranichnikov chose to use an interpreter at first instance only in his address in reply, and then for a very brief time, before reverting to English.  We formed the view that Mr Dranichnikov spoke quite good English and comprehended the language used in the Court as well as the average lay person.  It was, of course, his misfortune to appear unrepresented, but Mr Dranichnikov was not handicapped in presenting his appeals by the absence of an interpreter.

Associate:

Dated:  14 December 2000

The appellant appeared in person.