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 child in actions that involve children (under the Convention on the Rights of the Child), the Court held that while it raises complicated questions of the construction of that convention and the Refugees Convention, it is unnecessary to address those questions because the appellant did not adduce evidence before the Tribunal that the interests of his child would be adversely affected by the refusal of his claim: ‘In the circumstances of this case, that must be regarded as determinative of the issue’ (at [16]). While a tribunal operates in a partly inquisitorial way, here more than simply the evidence that the family included a young child was needed to consider that child’s best interest: the appellant’s evidence on the difficulties of relocation focused on his own individual problems, rather than those of his family as a whole, and he did not clarify how the child’s interest would be affected by accompanying him in the relocation (see [19]), and the Tribunal responded in full to the evidence on difficulties of relocation (at [20]).

Moving then to Ground 3, that the Tribunal had failed to consider all ‘integers’ of the claim for complementary protection, the Court held that each of these integers were unpersuasive (see [24]): the first equated a typographical error to a substantive failure to consider an issue; the second misconstrued a Tribunal member’s comment about a lack of reports on discrimination as accepting the proposition that there was discrimination against Pashtuns; the third was ‘wrong in fact’, in that the Tribunal dealt comprehensively with the evidence and submissions on the difficulties of relocation (at [29]ff).

Having rejected the three grounds of appeal, the Court dismissed the appeal (at [33]).

High Court Judgment [2018] HCA 20 16 May 2018
Result Appeal dismissed
High Court Documents DWN027
Related Cases EMP144
Full Court Hearings [2018] HCATrans 11 8 February 2018
[2018] HCATrans 8 7 February 2018
Appeal from NRSC [2017] NRSC 77 22 September 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.