BRF038 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on when discrimination amounts to persecution and procedural fairness guarantees under Nauruan refugee law. The appellant, a Sunni Muslim, fled Somalia in 2006, then stayed in Yemen, and finally arrived by boat at Christmas Island in September 2013. Australian authorities transferred him to the Republic of Nauru, where he sought refugee status. During his processing, he claimed that he fled Somalia due to war, trouble, hunger and starvation, and later fled Yemen due to racism and a lack of security (see details at [10]–[15]). The Nauruan Secretary refused his application for refugee status on the basis of scepticism about parts of his account (see [16]), and the Nauruan Refugee Status Review Tribunal and Nauruan Supreme Court both upheld that determination. On appeal to the High Court, the appellant contended that the Tribunal failed to accord him procedural fairness in reviewing the Secretary’s determination.

The Court (Keane, Nettle and Edelman JJ) allowed the appeal, ordering that the Tribunal’s decision be quashed and the matter remitted to the Tribunal for reconsideration according to law (see [67]ff). (On the appeal as of right to the High Court from the appellate jurisdiction of the Supreme Court of Nauru, see [35]–[41]).

After reviewing the reasons of the Tribunal (at [22]ff) and the Supreme Court of Nauru (at [29]ff), the Court first turned to the test for persecution. The Court rejected the appellant’s contention that the Tribunal applied the wrong test for ‘persecution’ by requiring the total deprivation of a persons’ human rights to find persecution: that argument ‘overstate[d] the stringency of the approach adopted by the Tribunal’, which did not articulate or apply any exhaustive test that required total deprivation, but instead simply observed that attempts to formulate a definition have ‘met with little success’ (see [42]–[43]).

While statutory changes post-dating the Supreme Court of Nauru’s decision meant that the appellant’s initial argument on the need to disclose ‘clear particulars of information’ that underlay the original decision (here, information regarding the ethnic composition of the Somaliland police force) could no longer be made (see [46]ff), those statutory changes related only to the common law of procedural fairness, and the Tribunal still owed him statutory obligations of procedural fairness (see [54]–[56]):

Accordingly, the question remains whether the Tribunal denied the appellant procedural fairness by failing to put to him for his response the country information relating to the tribal composition of the Somaliland police before making an adverse finding based on that information, and whether the Supreme Court therefore erred in not so holding.

Turning to that question, the Court noted the appellant’s submission that the hearing before the Tribunal was conducted without giving him an opportunity to respond to its conclusion that the appellant could have availed himself of police protection because the Somaliland police force contained members of his ethnic group (at [57]). The Court reiterated its earlier rulings that procedural fairness ‘requires a person whose interest is apt to be affected by a decision be put on notice of “the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person”‘, and that the person is entitled to the right to rebut, qualify by further information, or comment by submission, on adverse material (see [58], [59]). The Court then rejected the respondent’s contention that the Tribunal’s observations on the ethnic composition of the police force did not significantly impact its decision on persecution: ‘On the contrary, that consideration was integral to the Tribunal’s reasons for its conclusion’ (at [61]), and were directly dispositive of the issue of tribal persecution (at [62], and see [63]).

Consequently, the Tribunal’s failure to put the appellant on notice that the country information on police ethnic composition might be taken into account as a reason for finding against his claim was a failure to accord him procedural fairness, and the High Court quashed that decision and ordered the matter to be remitted (see [65]–[69]).

High Court Judgment [2017] HCA 44 19 October 2017
Result Appeal allowed
High Court Documents BRF038
Full Court Hearing [2017] HCATrans 177 8 September 2017
Appeal from NRSC [2017] NRSC 14 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.