HFM043 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the construction of derivative refugee status provisions. In September 2014 the Secretary of the Department of Justice and Border Control denied the appellant’s application for refugee status. In March 2015, the Nauruan Refugee Status Review Tribunal affirmed that decision, and the appellant appealed to the Supreme Court. In April 2016. the appellant married a man who had been recognised as a refugee. The appellant’s lawyers made an application for derivative refugee status on the basis of her dependency on her husband’s status, which was granted in August 2016, and for which she was granted a ‘Refugee Determination Record’ stating that the Secretary had determined the appellant was ‘recognised as a refugee’ (at [7]–[8]). In December 2016, the process for acquiring derivative status was changed, including s 31(5), which was deemed to have commenced in May 2014, and provided that ‘[a]n application made by a person under section 31(1)(a), that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time’.

In June 2017, the Supreme Court held that the Tribunal had made an error of law in failing to adjourn its hearing to allow the appellant to obtain a full medical report, but ordered the appeal dismissed on the basis that even if the Tribunal’s decision is quashed, it would be unable to reconsider the matter due to s 31(5). During the hearing of the appeal before the High Court, the threshold question of whether s 31(5) applied to the appellant emerged (at [19]).

The High Court (Kiefel CJ, Gageler and Keane JJ) held that it did not, and that the Supreme Court erred in holding that it would be futile to remit the matter to the Tribunal. Section 31(5) only applies to persons who have been given a Refugee Determination Record as defined under s 3 of the Act following the December 2016 amendments. That definition is confined to a document issued to someone owed protection by Nauru under s 6(2A). The appellant’s Record was not such a document, and neither s 6(2A) or the amended definition of the Refugee Determination Record was given retrospective effect: ‘ The document given to the appellant appears to be one which was in practice given in recognition of a dependant’s derivative status but which had no basis in statute, as the Explanatory Memorandum referred to above recognised.’ (at [20]).

The Court then rejected the respondent’s contention for a purposive construction of s 31(5) on the basis of the ‘obvious difficulty’ that the terms of s 31(5) do not admit of this construction: ‘Its reference to a Refugee Determination Record can only be to that term as defined in the Act. There is no question as to the meaning of that term such that a circumstance for the use of extrinsic materials arises’ (at [21], and see [22]–[24]). The Court ordered that the appeal be allowed, set aside the orders of the Supreme Court, and ordered the appellant’s application for review be remitted to a differently constituted Refugee Status Review Tribunal for determination according to law.

High Court Judgment [2018] HCA 37 15 August 2018
Result Appeal allowed
High Court Documents HFM043
Full Court Hearing [2018] HCATrans 113 14 June 2018
Appeal from NRSC [2017] NRSC 76 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.

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