WET044 v Republic of Nauru

The High Court has dismissed an appeal from a decision of the Supreme Court of Nauru on the denial of procedural fairness and the consideration of country information in a refugee status determination. The appellant, an Iranian of Faili Kurdish ethnicity, arrived on Christmas Island in 2013 and was transferred to Nauru, where he applied for refugee status under Nauru’s Refugees Convention Act 2012 (Nr). The Secretary of the Department of Justice and Border Control refused that application: that decision was affirmed by the Refugee Status Review Tribunal. Before the High Court, the appellant contended that the Tribunal erred in failing to deal with the country information he provided, specifically, that if returned to Iran as a failed asylum seeker, he risked being imputed with political opinions for which he would be persecuted. The appellant also sough to amend his notice of appeal to include a second ground of denial of procedural unfairness in not putting to him the nature of the country information it did rely upon in considering whether he might suffer persecution on the grounds of ethnicity (at [7]: neither ground was raised before the NRSC).

The High Court rejected both grounds as being without merit and dismissed the appeal. Regarding the first ground, the Court noted that the Tribunal had received and considered the appellant’s information (at [10]), that it did not seem to have ignored it, but that, in any case, much of that information did not require the Tribunal’s comment: it was put to the Secretary and did not contradict the Secretary’s opinions (at [11]). After reviewing the materials put to and used by the Secretary, the Court concluded, contrary to the appellant’s submissions, that none of these materials contradicted the country information used. Instead they suggested, as the Secretary concluded, that failed asylum seekers at risk upon return were¬† those with a pre-existing political profile (at [17]). Turning to the second ground, the Court held that the country information the Tribunal relied upon in considering persecution on the basis of ethnicity was known to the appellant: he himself provided or referred to the information linking his ethnicity to his identification as a Shia Muslim (at [23]), and it was set out in the Secretary’s reasons (at [25]) and a report the appellant used in his submission to the Tribunal (at [26]). Consequently, there was no natural justice obligation on the Tribunal to draw it to his attention (at [26]).

High Court Judgment [2018] HCA 14 11 April 2018
Result Appeal dismissed
High Court Documents WET044
Full Court Hearing [2018] HCATrans 18  14 February 2018
Appeal from NRSC [2017] NRSC 66 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.