DWN042 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness and the conduct of appeals. The appellant, a Pakistani asylum seeker, was denied refugee status and complementary protection by the Nauruan Secretary of the Department of Justice and Border Control. On appealing that determination to the Nauruan Refugee Status Review Tribunal, the Tribunal affirmed the Secretary’s decision and concluded that the appellant’s submitted materials did not support his narrative that he had been targeted by the Taliban and would be targeted if returned to Pakistan. The appellant then appealed to the Supreme Court of Nauru, and gained legal representation only the day before his hearing.

On the morning of the hearing, he filed an amended notice of appeal that raised four grounds of appeal, including that the Tribunal acted contrary to the principles of natural justice in hearing his appeal while he was detained unlawfully in breach of the Nauruan Constitution (see details at [4]). Judge Khan struck out the two grounds relating to natural justice on the basis that his Honour lacked jurisdiction to consider them ‘apparently because (i) the two grounds involved the interpretation and effect of the Constitution of Nauru so that under s 45(a) of the Appeals Act 1972 (Nr) there could be no appeal to the High Court of Australia from his decision on these grounds, and (ii) the Refugees Act was “crafted in a way to provide speedy resolution of … refugee status”‘ (at [6]). The High Court refused leave to appeal against this interlocutory decision, and during that hearing the respondent acknowledged that the reasoning was ‘plainly wrong’ but assured the Court it would resist any application to reintroduce the grounds, albeit for different reasons than those given by Judge Khan (at [7]). While Judge Khan’s decision on the third and fourth grounds (on complementary protection and relying on evidence not given to the appellant) was reserved, the appellant negotiated with the respondent to reintroduce grounds one and two, ultimately unsuccessfully (at [8]ff). On 6 February, the appellant was notified that judgment would be handed down the next day, and sought leave to appear the next day and filed a motion to reinstate grounds one and two and to reopen the appeal (at [10]). Both of these requests were denied, and the judgment was handed down without the appellant present or substantively represented by counsel able to address the motion to reopen grounds one and two or adjourning the matter (at [13]).

The High Court (Keane, Nettle and Edelman JJ) unanimously allowed the appeal, holding that the failure to consider the notice of the motion was a denial of procedural fairness, but rejecting four other grounds of appeal. Dealing first with the motion ground, the Court rejected the respondent’s contentions that the primary judge was entitled to treat the notice as having been abandoned: the motion had been filed the day before, the Registrar indicated that it would recommend the hearing be adjourned, and the judge had been notified that the appellant’s solicitors and counsel would not be present at the handing down of the judgment to raise the motion (at [18]). The Court also rejected the respondent’s submission that the High Court should itself dismiss the motion because it requires the Court to interpret the Nauruan Constitution, which the Nauru (High Court Appeals) Act precludes (at [19]–[21]):

The appellant was, and is, entitled to a hearing in the Supreme Court. It is not for this Court to attempt to provide the hearing that the appellant has not had, or to attempt to give any judgment such as might be thought to have been appropriate in the Supreme Court. There is, therefore, no basis upon which this ground of appeal requires consideration of the interpretation or effect of the Constitution of Nauru.

The Court then rejected the remaining grounds. The second and third grounds, which reiterated grounds one and two in the original matter, could not be considered by the High Court because they involved the interpretation of the Nauruan Constitution (at [23]). Turning to the appellant’s claim that the Tribunal failed to consider the reasonable possibility that if he were returned to Pakistan he would be subject to an arbitrary deprivation of life as a result of ‘generalised violence’ rather than specific targeting by the Taliban, the Court noted that the Tribunal did consider this claim in detail, accepted the evidence on targeting, but rejected the evidence that the appellant himself had been targeted (at [24]). The Court reiterated that a decision maker’s reasons should not be scrutinised ‘over-zealously’, and that hearing records ‘should not be scrutinised in an attempt to elucidate grounds which were not, on a fair and reasonable construction of the record, raised for decision’ (at [25]). On that fair and reasonable construction, the generalised violence argument was not made before the Tribunal in either written or oral submissions (at [26]ff), and must be dismissed.

Moving to the appellant’s final ground, that the Tribunal erred in relying on the appellant’s transfer interview that was conducted prior to his application for refugee status, the Court identified three reasons why this reliance did not constitute procedural unfairness: first, the interview form could not be later ‘disowned’ by the appellant (at [32]); secondly, while the appellant did not have a copy of the form at the Tribunal hearing, neither he nor his representative objected to its use (at [33]); and thirdly, the matters covered in the form were consistent with the evidence the appellant gave before the Tribunal (at [34]).

Consequently, the Court allowed the appeal on the first ground, and ordered that the matter be remitted to the Supreme Court of Nauru to a judge other than Judge Khan to be reconsidered according to law (at [36]).

High Court Judgment [2017] HCA 56  13 December 2017
Result Appeal allowed
High Court Documents DWN042
Full Court Hearing [2017] HCATrans 203 18 October 2017
Appeal from NRSC [2017] NSRC 4 7 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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