Republic of Nauru v WET040 [No 1] and [No 2]

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on testing the credibility of refugee claim evidence and the obligation for the Nauru Refugee Status Review Tribunal to give reasons for its decision.

On 7 November 2018, the Court (Gageler, Nettle and Edelman JJ) held that Nauru’s October 2017 invocation of the High Court’s jurisdiction under s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) was valid. While the Agreement underpinning that statute was terminated on 12 December 2017, with effect from 13 March 2018, the agreement to terminate provided that it would not affect proceedings instituted before the date of termination (at [8]). Once the proceedings were instituted by filing the notice of appeal, the procedure applicable to them was governed entirely by the High Court Rules, not the termination agreement, and thus the Court still has the power to determine the appeal (at [10]ff).

The respondent is an Iranian national who applied for refugee status on the basis that, following the breakdown of his marriage, he began to receive violent threats from his family in-law and what he claimed were false allegations of domestic abuse against his wife, and that, if returned to Iran, he feared that his father-in-law would use his connections within the state to have him imprisoned or killed (see [5]ff).

After the Nauruan Secretary rejected his claim, the respondent claimed that he fled Iran on the basis of political and religious opinion, and that his in-laws were Islamic fundamentalists and, in the case of the father-in-law, a member of a fundamentalist state security organisation (see [12]ff). The Tribunal responded to each of these ‘shifting set of explanations’, rejecting the respondent’s account (at [16]ff). On appeal, the Supreme Court of Nauru (Crulci J) held that the Tribunal’s findings against the credibility of the respondent’s account were unsound and that it had not given full reasons for its decision: in dealing with credibility, an event was only ‘implausible’ if it was ‘inherently unlikely’ or involved ‘basic inconsistencies’ in the evidence or country information (at [25]), and the Tribunal had not follow that standard.

The Court (Gageler, Nettle and Edelman JJ) held that that Crucli J had erred. Her Honour’s reasoning was based on a judgment that was later overtuned on appeal, misemphasised the observations of the FCAFC majority in another case, and, most importantly, mischaracterised the Tribunal’s implausibility findings as speculative, conjecture or unsupported by basic inconsistencies (at [26]). The Tribunal had soundly reasoned that the respondent had changed his evidence and given an improbable account of events, in each case making rational inferences from doubts about his account (see at [27]ff). Regrading the appellant’s argument that, even if the Tribunal had not given full reasons for its findings of implausibility, the reasons it did give would have satisfied the statutory requirements (at [37ff]), the High Court held that the adequacy of reasons ultimately turns on the facts and circumstances of each case, and that the Tribunal’s extensive reasons clearly met that standard (at [39]).

The Court ordered that the judgment of the Supreme Court of Nauru be set aside and in its place an order that the appeal to that Court be dismissed.

High Court Judgment [2018] HCA 60 5 December 2018
Result Appeal allowed
High Court Documents WET040
Order Extending Appeal [2018] HCA 56 7 November 2018
Full Court Hearing [2018] HCATrans 230 7 November 2018
Appeal from NRSC [2017] NRSC 79 28 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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