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 appellant’s first ground of appeal was that the Tribunal denied him natural justice, failed to provide a statement of reasons, and failed to respond to his ‘substantial, clearly articulated argument’ that he could not reasonably relocate within Nepal for four reasons ‘expressly articulated reasons’: that he and his family would face prejudice in accessing education, employment and essential services; that he would not be able to express his political views throughout Nepal; that he lacked advanced skills needed for employment other than as a self-employed farmer; and that he had ongoing fears for his family’s safety. (at [18]). Further, the Tribunal did not respond to the ‘established fact’ that the appellant had already attempted to relocate within Nepal, and the failure of that attempt led him to flee (at [19]).

Working through each of these four reasons, the Court held that the Tribunal had dealt adequately with the evidence and arguments in each instance, reflected in its reasons and conclusions. The evidence showed that the appellant’s difficulty in accessing education for his family stemmed from the fact that neither he nor his father were present to confirm that his child was a Nepali citizen, rather than any prejudice (at [20]–[22]). In dealing with restrictions on the expression of political views, the Tribunal acknowledged that the Maoists did operate throughout Nepal, the threat of harm was localised, and the general security situation as improved markedly since 2013: the Tribunal’s reasons make it clear why they were not persuaded of his evidence (at [23]–[28]). Likewise, the Tribunal dealt with employment prospects (at [29]) and the family safety point (at [30]) clearly, noting that the appellant could find work elsewhere and that the Maoists were only targeting the appellant. On this basis, the Court rejected Ground 1.

Moving to Ground 2, that the Tribunal failed to provide the appellant an opportunity to respond on the issue of reasonableness of relocation by not drawing his attention to its importance, the Court held that the contention was untenable and rejected the ground. The appellant and his legal representative were aware of the importance of the issue from the outset, and were specifically reminded of its importance during the hearing (at [32]–[33]). Further, the appellant directed submissions on this point, was afforded ‘natural justice’ breaks with his representative to discuss the response to the localisation of harm and relocation point, and the representative dealt directly with the point in her closing address (see at [34]–[37]).

Turning to Ground 3, that the Tribunal failed to deal with the ‘integers’ of the appellant’s claim for complementary protection, specifically the risk to deprivation of life, torture or degrading treatment in the form of harassment and attacks similar to those he had faced, the Court held that the Tribunal had taken each of these factors into account, and largely accepted his evidence on these points (at [39]–[41]). Due to an absence of evidence of continued attacks against members of the appellant’s political group, the Tribunal was entitled to come to its decision that the harm the appellant might come to was specific to his area, if he were returned to that area, and that he could avoid this by relocating elsewhere in Nepal, and thus was neither a refugee (at [42]) nor entitled to complementary protection (see [43]).

The Court rejected Ground 4, on the interaction of reasonable relocation and complementary protection, for the same reasons given in CRI026 (at [45]).

Turning finally to Ground 5, that the Tribunal erred in its understanding of Nepali citizenship law as it impacted the appellant’s child, causing difficulties in school enrollment, the Court reiterated its conclusion in relation to this part of Ground 1 that the contention was incorrect: the Tribunal did not misunderstand the law, and this had ‘nothing to do with the appellant’s political persuasion’ (at [46]–[48]).

Having dismissed each of the five grounds, the Court dismissed the appeal (at [50]).

High Court Judgment [2018] HCA 21 16 May 2018
Result Appeal dismissed
High Court Documents EMP144
Related Cases DWN027
Full Court Hearings [2018] HCATrans 11 8 February 2018
[2018] HCATrans 8 7 February 2018
Appeal from NRSC [2017] NRSC 73 27 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.

2 thoughts on “EMP144 v Republic of Nauru

    • There are a handful of other refugee matters on the HCA’s current cases page that haven’t been decided yet – CRI028, ETA067, etc. — I think these might be the last ones.

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