CRI028 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the ‘internal relocation principle’ in refugee status determinations. The appellant, a Sunni Muslim from the ‘K District’ in the province of Punjab, moved to Karachi in 2004, departed Pakistan in 2013, and applied for asylum in Nauru in 2014. The appellant claimed he held a well-founded fear of persecution by the Muttahida Quami Movement (MQM) for the imputed political opinion of opposing MQM, and feared harm from them throughout Pakistan. The Secretary of the Department of Justice and Border Control refused the application. On appeal, the Nauruan Refugee Status Review Tribunal found that the appellant had a well-founded fear of persecution in Karachi, it affirmed the Secretary’s decision because the appellant could return to K District where he would not face a reasonable possibility of persecution. The NRSC upheld the Tribunal’s determination.

The High Court unanimously allowed the appeal. The joint judges (Gordon and Edelman JJ) held that the Tribunal fell into error in applying the principles on internal relocation, and hence the NRSC should have allowed the appeal. After laying out the provisions of the Refugees Act (at [18]ff), the joint judges turned to the internal relocation principle, reiterating that where a person claiming refugee status on the basis of a well-founded fear of persecution, and there is an area within their home country in which they would not have that fear, and the person could reasonably be expected to relocate there, then that person is not outside their home country due to a well-founded fear of persecution (see [24]). Assessing the reasonable expectation to relocate involves comparing the conditions in the person’s place of residence, against those in the safer area, and assessing the impact of relocation (at [25]). That assessment is not about the comparison of qualities of life against general human rights, but specifically on the risk of harm to the person, and whether, in the personal circumstances of this person, relocation is practicable and reasonable (at [25]–[26]).

The joint judges then reviewed the decisions of the Secretary, the Tribunal and the NRSC (at [27]ff), the Tribunal’s decision (at [31]ff), and the NRSC appeal (at [38]ff), before restating the two issues before the High Court, namely, whether the Tribunal erred in its approach to internal relocation, and whether it failed to take into account a threat to family as relevant to internal relocation (at [42]). The joint judges held that the Tribunal erred in focusing on the appellant’s birthplace as a ‘home area’, and in doing so using that label to avoid considering the reasonableness of relocating there (at [44]). The concept of ‘home area’ or ‘home region’ does not come from the Refugees Convention, and while it is not necessarily a problematic idea, it can be distracting or inapposite (at [45], [46]). The joint judges stated, at [47], that:

Where a person has established a well-founded fear of persecution in their country of nationality, a question may arise as to whether there is a place within that country to which the person could reasonably relocate (being an aspect of the ultimate question of whether the person was outside their country of nationality owing to a well-founded fear of persecution). In seeking to answer that question, it is neither helpful nor correct to interpolate or substitute a free-standing concept of a “home area”, and to purport to make factual findings about whether a particular area is or is not such an area. That approach may lead to legal error.

In this appeal, the issue was not whether K District was the appellant’s ‘home area’, but rather whether he could be reasonably expected to relocate there: his ties to the area are among the circumstances to be considered in answering that question (at [48]).

Turning then to that question, the joint judges held that the Tribunal failed to consider all the circumstances relevant to the question of reasonable relocation (at [50]). The Tribunal failed to treat the impact of relocating to K District on the appellant’s family as relevant to its task at all: rather, it was an essential part of assessing the reasonableness of relocation, and, further, the appellant’s wife’s strong resistance to moving — that she had no support network there, did not wish to leave her support in Karachi, and as a Shia Muslim married to a Sunni Muslim of Punjabi ethnicity held fears about persecution and honour killings — were compelling reasons against the reasonableness of relocating there (at [54]–[58]). Consequently, the Tribunal erred in its approach to internal relocation in failing to consider threats to family unity. The joint judges quashed the Tribunal’s decision and remitted the matter to it for redetermination according to law (at [64]).

Bell J agreed with the orders and the analysis of the internal relocation principle in the joint reasons (at [1]). Bell J emphasised that Nauru’s submissions and the Tribunal’s findings that the appellant would face hardship in relocating to K District ran against the actual terms of the appellant’s statements and contentions, which was not made in terms of the inevitability of his separation from his wife and child, but rather involved a larger case against relocation, relying on the risks from their mixed marriage and the lack of support networks (at [8]–[10]). While the evidence raised the distinct prospect of family breakup, the Tribunal failed to have regard to this in assessing the reasonableness of the appellant’s relocation within Pakistan (at 14]).

High Court Judgment [2018] HCA 24 13 June 2018
Result Appeal allowed
High Court Documents CRI028
Full Court Hearing [2018] HCATrans 19 14 February 2018
Appeal from NRSC [2017] NRSC 32 11 May 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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