WET052 v Republic of Nauru

The High Court has dismissed an appeal from the Supreme Court of Nauru on applicant credibility in the evaluation of a claim for refugee status. The appellant fled Iran, arrived on Christmas Island and was transferred by the Australian Government to the Republic of Nauru in 2014. In the course of his transfer interview, he stated that he had been subject to multiple instances of domestic violence from his alcoholic and drug-addicted father, who forced the appellant to work to support his addictions, and whom he feared would kill him if he was returned to Iran (at [2]). The appellant claimed refugee status on the basis that, if returned to Iran, he would be persecuted by the government due to his association with and financial support for his father, whose alcohol and drug-addictions were contrary to Sharia law, and further that his father had connections with the police and paramilitary groups which he might use to find and harm the appellant (at [5]ff).

The Secretary of the Department of Justice and Border Control determined that the appellant was not a refugee and not owed complementary protection: the Secretary did not accept that the appellant’s father was a drug trafficker or that his father had connections in the government that he might use to threaten the appellant’s safety (at [9]). The Refugee Status Review Tribunal affirmed the Secretary’s decision, expressing concerns about the credibility of the appellant’s account, namely that the appellant had not explained why he had omitted to mention the drug trafficking in the initial interview, that the possibility that his father might set the appellant up in a drug deal was implausible because it would carry a high risk to the father as well, and that it was difficult to accept that the appellant was forced by his father to distribute drugs on a full-time basis over several years (at [12]–[13]).

Before the High Court, the appellant contended that the Tribunal’s adverse credibility finding was without logical foundation and wrongly treated as determinative of the claim for refugee status; and that the Tribunal erred in failing to properly consider the appellant’s claims for protection in two ways: a ‘particular claim’ that, if returned, the appellant had a political profile that meant he would face harm as a failed asylum seeker in the West, and a ‘general claim’ that the Iranian authorities generally persecuted failed asylum seekers. The Court (Gageler, Keane and Edelman JJ) dismissed the appeal. Their Honours refused the appellant leave to raise the second round as it was ‘entirely without merit’ (at [19]): the appellant did not make the particular claim in his interviews or before the Tribunal (see [32]ff), and the Tribunal considered and rejected the general claim (at [37]ff).

The Court also rejected the appellant’s arguments on the adverse credibility finding. The appellant’s characterisation of the Tribunal’s reasoning as part of this argument (at [21]) involved a ‘distinctly unreasonable misunderstanding of the Tribunal’s reasons and an artificially rigid view of the constraints upon the fact-finding function of the Tribunal’ (at [22]). The Tribunal’s conclusion was not that the appellant’s claims about drug-trafficking were untrue because they were not mentioned at the first interview opportunity, but rather that that omission cast a strong doubt on their credibility: ‘The Tribunal’s ultimate conclusion that it was not satisfied as to the credibility of his claims was based on the accumulated concerns summarised above. There was nothing illogical or irrational about that conclusion.’ (at [23]). This concern is familiar to ‘any tribunal of fact’: scepticism about failure to mention matters of clear importance at the first opportunity can be dispelled by the balance of evidence, but whether or not that should happen depends on the explanation for the omission in the circumstances as well as the evidence supporting the claim, and it was open to the Tribunal to be sceptical about the truth of the claims here (at [25]), and they raised their concerns with the appellant during the hearing (at [26]): ‘Whether those explanations were cogent or not was a matter for the Tribunal. The extent to which considerations of the kinds urged on behalf of the appellant should be taken into account by a tribunal of fact necessarily varies with the circumstances of the particular case.’ (at [26]). The Court rejected the appellant’s suggestion that the differences between the interviews were insignificant and limited to mentioning his father’s drug addiction, noting that the differences were substantial and significant (at [27]–[28]). Finally, the Court rejected the appellant’s contention that the initial interview was not part of the refugee status determination process: the Tribunal did not treat it as such, but it was entitled to note and weigh the significance of his omissions in that interview (at [29]).

High Court Judgment [2018] HCA 47 17 October 2018
Result Appeal dismissed
High Court Documents WET052
Full Court Hearing [2018] HCATrans 115 15 June 2018
Appeal from NRSC [2017] NRSC 96  6 November 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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