EMP144 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant is a Nepali whose family were all members of the pro-royalist political group known as the RPP(N), which he joined in 2008 and in which he was active as an official. The appellant’s family had suspected that their brother had been disappeared by the Nepali Maoists (the NCP-M), and the appellant claimed that, from 2011 onwards, the NCP-M began to persecute him and both threatened and physically attacked him and his family in several separate incidents (at [6]ff). The Nauruan Refugee Status Review Tribunal found that the appellant had suffered serious harm amounting to persecution, but ruled that because the harm was ‘localised’, the appellant could reasonably be expected to relocate elsewhere in Nepal and live a normal life without hardship, and was thus neither a refugee nor entitled to complementary protection (at [12]). The NRSC upheld that ruling, holding that the Tribunal had not erred in applying a reasonable internal reloaction test, and had not failed to take into account all matters relevant to the appellant’ complementary protection claim, including the reasonably practicality of relocating within Nepal, and that the Tribunal had not failed to afford him procedural fairness (at [13]).

The Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours began by noting that the relevant statutory and treaty provisions are set out in CRI026 (at [16]). The Continue reading

DWN027 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on refugee status and complementary protection. The appellant was a Sunni Pashtun from who sought refugee status or complementary protection on the basis of a well-founded fear of persecution by the Taliban in Peshawar for his actual or imputed political beliefs, based on series of attacks against him and his family members by the Taliban, the most recent of which related to extortion and coercion attempts, which the appellant refused to submit to (see [4]ff). The Nauruan Refugee Status Review Tribunal found that the appellant faced a real threat of harm, but that he could also relocate to another area in Pakistan to avoid that harm, and consequently he was neither a refugee nor owed complementary protection by Nauru (at [7]). The NRSC upheld the Tribunal’s decision, holding that it had not erred in applying a reasonable internal relocation test, and did not fail to take into account the interests of the appellant’s children in finding that relocation was reasonable (at [8]).

The High Court (Kiefel CJ, Gageler and Nettle JJ) dismissed the appeal. Their Honours noted that the relevant statutory and treaty provisions were outlined in CRI026 (at [11]), and rejected DWN027’s arguments on ground one, on the relevance of the ability to relocate to the entitlement to complementary protection, as being ‘substantially the same’ as those given in CRI026, and rejected for the reasons given in that matter (at [12]).

Turning to Ground 2, that the Tribunal failed to take into account Nauru’s international obligation to give primary consideration to the best interests of the Continue reading

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 theĀ 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 Continue reading