HFM045 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness requirements of refugee status reviews. The appellant, a Nepalese citizen of the Hindu Chhetri caste, fled Nepal, arrived at Christmas Island and was then transferred to Nauru under the regional processing arrangement. He claimed refugee status in Nauru, claiming a fear of persecution from Maoist rebels on the basis of his political opinions and from Limbu tribe Mongols on the basis of his home district and caste membership. The Secretary of the Department of Justice and Border Control’s made a determination that he was not a refugee and could be returned to Nepal, which was upheld by the Nauruan Refugee Status Review Tribunal and the Supreme Court of Nauru. Before the High Court, the appellant contended that the Supreme Court erred in failing to hold, first, that the Tribunal denied him procedural fairness because it did not put him on notice of information that was relevant to its ruling — namely, the changed political circumstances in Nauru, the proportion of Chhetri caste members in the Nepalese army, and persons targeted by Limbuwans — and, secondly, that the Tribunal applied the incorrect test in evaluating the determination (at [5]).

The Court (Bell, Keane and Nettle JJ) rejected the second ground, but allowed the first in relation to the army composition point: the Tribunal was under a common law obligation to put the appellant on notice of that information, and give the appellant the opportunity to respond to that information (at [6]). After reviewing the details of the application (at [7]ff), the Secretary’s decision (at [11]ff), and the Tribunal and Supreme Court decisions (at [14]ff), the Court turned to the arguments on appeal. The Court first held that the Supreme Court did not err in failing to hold that the Tribunal misapplied the law on Nauru’s complementary protection obligations. The appellant’s contentions focused on one paragraph of the Tribunal’s reasons, which he suggested showed it had wrongly applied a test of likelihood of harm if the appellant were returned to Nepal (see [28]–[29]). While the Supreme Court acknowledged that the Tribunal’s language was ‘loose’, its reasons, read as a whole, showed it applied the ‘real possibility’ standard, which matched Nauru’s treaty obligations (which used the language of ‘substantive grounds’ and ‘real’ risk’): at [30]–[32].

Turning to the procedural fairness arguments, the Court rejected the statutory challenge., because the provision that the appellant contended the Tribunal had wrongly ignored had been repealed before the Tribunal conducted the review (at [33]–[39]). Nonetheless, the Tribunal owed the appellant general common law procedural fairness obligations which required, among other things, that the appellant be given the opportunity to comment on any adverse information that is credible, relevant and significant (at [39]). The Court held that it was open to the Supreme Court to find that the Tribunal had not denied the appellant procedural fairness in relation to the changing political circumstances in Nepal: after an exchange between the interpreter and a Tribunal member on the lessened extent of the Maoist insurgency, the Tribunal offered the appellant a ‘natural justice break’ to allow the appellant and his lawyer to confer (see [41]ff). They took that break, and after resuming the hearing, submitted that the Maoists still operated throughout Nepal and that the appellant still feared persecution (at [42]). The Tribunal’s use of a report on the representation of Chhetris in the Nepalese army, which was used to discount the appellant’s evidence that Maoists were absorbed into the army, was not given to him and its significance was not mentioned (at [44]). The High Court rejected Nauru’s argument that, even if the appellant were given the report, it would only have been for him to either agree or disagree with it, and that would not have changed the outcome of the review: instead, the report wnet to assessing the appellant’s credibility and the reliability of his claims to fearing persecution (at [45]–[47]):

The Tribunal’s understanding that Chhetris are heavily represented in the Nepalese army cannot be quarantined from its conclusion that the appellant is not at risk of harm on return to Nepal. Bound up in that conclusion is an assessment not only of the prospect of Maoists or ethnic groups inflicting harm on the appellant, but of the willingness and capacity of the Nepalese authorities to take action to protect the appellant from threatened harm.

Consequently, the Tribunal was obliged to put the appellant on notice and give him opportunity to address the report (at [49]). That conclusion made it unnecessary to address the third procedural fairness complaint on targetting by Limbuwan activists which, over objection, was to be raised for the first time before the High Court (at [50]). The Court ordered that the appeal be allowed and that the appellant’s application for review of the determination be remitted to the Tribunal to be dealt with according to law (at [51])

High Court Judgment [2017] HCA 50 15 November 2017
Result Appeal allowed
High Court Documents HFM045
Full Court Hearing [2017] HCATrans 180 14 September 2017
Appeal from NRSC [2017] NRSC 12 22 February 2017
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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