CRI026 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status, complementary protection obligations, and internal relocation. The appellant is a Pakistani national who had spent much of his life in Karachi, but also lived in a range of other districts in Pakistan. He arrived in Nauru and claimed refugee status on the basis of fears that he would be harmed by members of the Muttahida Quami Movement (MQM), whose leader he had injured at a cricket game in Karachi. He claimed that MQM viewed him as a political dissident, and could harm him anywhere in Pakistan, and that the government could not protect him due to its connections with and support for MQM. The Nauruan Refugee Status Review Tribunal accepted that there was a real possibility that he may be harmed if returned to Karachi, but only for reasons of personal revenge and not for his political beliefs, and that the appellant could avoid that harm by relocating to one of the areas in which he had family connections and where MQM had little support (see [6]ff, [16]). The Nauruan Supreme Court dismissed an appeal against that decision, holding that the Tribunal had not erred in applying a reasonable internal relocation test to the appellant’s claim (at [9]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) unanimously dismissed the appeal. Their Honours briefly noted the Nauruan statutory provisions: that s 4 of the Refugees Act provides that Nauru must not return a refugee to the frontiers of territories where that person would be persecuted, or return any person to a frontier in breach of its international obligation; that Nauruan law incorporates the definition of refugee from the Refugees Convention; and that ‘complementary protection’ applies to people who are not refugees within the meaning of the Act, but also cannot be returned or expelled where this would breach Nauru’s international obligations (at [12]–[15]).

The Court then turned to each of the appellant’s grounds of appeal. The first ground was that the NRSC erred in failing to hold that the Tribunal had misapplied the law of complementary protection, specifically in misapplying the reasonable relocation test to complementary protection and failing to conclude that the appellant faced a real possibility of harm if returned to Karachi. The Court rejected this argument. The ability to relocate and receive protection elsewhere in Pakistan was not irrelevant to the question of complementary protection (at [17]ff), and the appellant’s claim that any real risk of exposure to inhuman or degrading treatment or punishment in a country meant a person could not be returned to the frontiers of that country was expressed too broadly (at [21]):

… counsel’s submissions cannot be accepted in the broad terms in which they were stated. In particular, it is not the case that, just because there may be a real risk of exposure to inhuman or degrading treatment or punishment in one place, or even some places, in a country of nationality, an applicant cannot be returned to some other place in that country in which there is not such a risk and to which it would be reasonable for him or her to relocate.

Turning to the construction of the relevant treaties, the Court noted that the content of a treaty obligation depends on the construction that the international community would attribute to it, and on the operation the community would give it in particular circumstances (at [22]). In that process of construction, ‘considerable weight’ should be given to interpretations by the independent treaty bodies established to oversee a treaty’s application (at [22]):

Taken as a whole, international law and practice leave no doubt that, unless the feared persecution emanates from or is condoned or tolerated by state actors (which is not an issue in this case), an applicant’s ability reasonably to relocate within a receiving country, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection.

The Court then noted the provisions of the ICCPR, which do not expressly impose a non-refoulement obligation on states parties, but instead requires them not to remove a person to a territory where there are ‘substantial grounds’ for believing there is a real risk that the person will be harmed: ‘substantial grounds’ means that a necessary and foreseeable consequence of refoulement would be harm (at [24]). If internal relocation is possible, the harm will be neither necessary nor foreseeable (at [24]). The Court then reviewed the European directives and jurisprudence on internal relocation (see [25]ff), and the UN Human Rights Committee’s General Comment No 31 and later decisions (at [32]ff), that underlay this conclusion.

The Court then rejected the appellant’s contention that internal relocation would require the applicant to meet the practically impossible requirement of showing that there is no place within the country to which he or she could reasonable relocate: that contention proceeded from the false premise that the burden of proof lay on the applicant, and the requirement that decision-makers use reliable information on the safety and suitability of possible places of relocation (see [39]). The Court also rejected the appellant’s argument that, as the Refugees Convention relates to the definition of ‘refugees’, and that definition is not used or applicable to the ICCPR, which differs from the convention, the ‘logic of regarding reasonable internal relocation as relevant to complementary protection does not apply’ (see [41]): international jurisprudence accepts that non-refoulement obligations (and the relevance of reasonable internal reloaction to their extent) are implicit in Art 2 of the ICCPR (at [43]).

Finally, the Court rejected the appellant’s contention that return on the basis of internal relocation would be a denial of freedom of movement in that country, which would breach Nauru’s obligations under Art 12 of the ICCPR, giving four reasons. First, internal relocation is not a denial of freedom of movement, but rather a rational choice to move to avoid harm and ‘manifestation’ of the freedom of movement (at [45]). Secondly, Nauru’s international obligations under Arts 2 and 12 of the ICCPR relate to guaranteeing freedom of movement within Nauru, and do not extend to an obligation to procure freedom of movement for a person in another country (at [46]). Thirdly, the appellant could not identify any international jurisprudence linking non-refoulement obligations to the right of freedom of movement in the country, and other decisions and the text of the ICCPR suggests they are not linked (at [47]). Fourthly, even if Nauru owed this obligation, permitting a person who is unlawfully in Nauru to remain in Nauru, rather than returning them to their country of nationality, would do nothing to procure their freedom of movement (at [48]).

Moving to Ground 2, that the Tribunal erred in taking irrelevant considerations into account, namely that the Tribunal added an incongrous observation about Sri Lanka and Tamil asylum seekers that had no relevance to the case and suggested some kind of drafting error (see [52]ff, [56] and [57]). The Court noted, however, that despite this error, the Tribunal’s conclusion was based on the evidence and findings covered in paragraphs 11 to 67 of the Tribunal’s reasons on the dangers posed by MQM, the instability in Pakistan, and so forth (at [56], and see at [63] on the issue of the NRSC’s consideration of a corrigendum, which need not be decided).

Turning then to Ground 3, that the Tribunal failed to respond to the appellant’s clear submission that he could not relocate to a place that would be safe, the Court noted that the submission was untenable: ‘There was no substantial, clearly articulated argument of the kind suggested and the Tribunal were not required to consider claims that were not clearly articulated or which did not clearly arise on the materials before them’, and leave to raise that ground here should be refused (at [66]). Rather, the Tribunal responded comprehensively to the general submission on the difficulties of relocation (see [67]. and [72]ff), and, contrary to the appellant’s submissions, was not required to identify a specific place to which the appellant should relocate, but nonetheless did note two cities that might be suitable on the basis of the evidence that the appellant had lived in them without harm, and that he had family support there (at [67]–[71]).

Moving finally to proposed Ground 4, that there was no evidence to support the Tribunal’s central finding that MQM has little influence or power outside of Sindh, the Court refused leave to advance that further ground of appeal: that finding was part of the more general finding on MQM’s power, and the evidence underlying them was not adduced into evidence in the NRSC or before the High Court (at [77]–[80]).

High Court Judgment [2018] HCA 19 16 May 2018
Result Appeal dismissed
High Court Documents CRI026
Related Cases DWN027
EMP144
Full Court Hearings [2018] HCATrans 11 8 February 2018
[2018] HCATrans 8 7 February 2018
 Appeal from NRSC [2017] NRSC 67 29 August 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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