ETA067 v Republic of Nauru

The High Court has dismissed an appeal against a decision of the Supreme Court of Nauru on the assessment of evidence and procedural fairness in refugee determination processing. The appellant claimed refugee status on the basis of his affiliation with the Bangladesh Nationalist Party (BNP) and his actual or imputed opposition to the Awami League, claiming that, after leaving the BNP for several reasons, including the ‘anarchy’ of violent clashes, he came under pressure from the Awami League to join them (at [2]–[3]). In March 2015, the Nauruan Secretary of the Department of Justice and Border Control rejected his claim for protection, and on review the Refugee Status Review Tribunal affirmed that decision, finding that the appellant had not suffered harm amounting to persecution, and that his fear of future persecution was not well founded, and, even if it were, that threat would be localised to the suburb of Dhaka from which he fled (at [4]).

After the NRSC affirmed that decision, the appellant appealed to the High Court, contending that the NRSC erred in failing to find that the Tribunal failed to assess the relevant evidence of assaults by the Awami League against people who refused to join them, and failed to give the appellant the opportunity to ascertain or comment on whether he was a formal member of the BNP, contrary to the principles of natural justice (at [5]).

The High Court (Bell, Keane and Gordon JJ) unanimously dismissed the appeal, rejecting both grounds. Regarding the first ground, the Court held that the absence of any express mention of the  Awami League assault evidence in the Tribunal’s reasons does not indicate that it did not consider that evidence: there was no obligation on the Tribunal to refer to every piece of evidence in its reasons (at [13]), and this was not an omission relating to matter that was essential to dispositive of the applicant’s claim (at [14] and [26]). The Tribunal did, however, refer to the appellant’s evidence about the Awami League’s treatment of the appellant specifically, but it observed that these were only threats over a period of 4 years, without evidence of actual harm suffered, suggesting that they did not intend to harm him, or they would have done so then (at [19]ff). Where it omitted mention of evidence, it did so because that evidence was not persuasive; and where it considered evidence of likely harm to the appellant it challenged aspects of that evidence (at [24]–[28]).

Turning to Ground 2, the Court held that the Tribunal had afforded him procedural fairness in relation to questions of membership of and affiliation with the BNP. Contrary to the appellant’s argument, the Tribunal had put him on notice that it doubted he was a full BNP member, and asked him to provide evidence of that membership (at [39]). Moreover, formal membership was just one part of the wider assessment of his overall political activities: the Tribunal recognised that he might be imputed with BNP positions, but nonetheless found that he had not suffered any harm amounting to persecution or would suffer such harm in the future (at [40]). Ground 2 was framed in the High Court in terms of the relocation issue, but those contentions should be rejected because they are predicated on there being first a well-founded fear of persecution; and even if that had been proven, the Court agreed that it was isolated to the appellant’s home suburb and could be avoided by relocation (at [41]ff).

High Court Judgment [2018] HCA 46 17 October 2018
Result Appeal dismissed
High Court Documents ETA067
Full Court Hearing [2018] HCATrans 114  14 June 2018
Appeal from NRSC [2017] NRSC 99 13 November 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.