Nauru abolishes appeals to Australian High Court after series of asylum seeker decisions

BRF038 v The Republic of Nauru [2017] HCA 56; HFM045 v The Republic of Nauru [2017] HCA 50; DWN042 v The Republic of Nauru [2017] HCA 56

Summary

The Government of the Republic of Nauru (Republic) recently abolished the mechanism by which parties could appeal decisions from the Supreme Court of Nauru (Supreme Court) to the High Court of Australia (High Court), leaving asylum seekers without an avenue of appeal to challenge unsuccessful decisions of the Supreme Court. This move has come shortly after the High Court's recent landmark decision in BRF038 v The Republic of Nauru [2017] HCA 56 where it held that, in certain circumstances, appeals from the Supreme Court to the High Court lie as of right, without the parties first having to seek leave of the Court. This unusual foreign appeal mechanism had been exercised in a constellation of cases, some of which are discussed below. In each matter discussed, the High Court found that there had been a failure to afford the appellant procedural fairness and, as a result, the matters were remitted to either the Supreme Court or the Nauruan Refugee Status Review Tribunal (Tribunal) to be reconsidered according to law.

BRF038 v The Republic of Nauru [2017] HCA 56

Facts  

As a Sunni Muslim and member of the Gabooye tribe, the appellant fled his homeland province in Somaliland to seek asylum. The appellant arrived at Christmas Island in 2013 and was subsequently transferred to Nauru where he applied to the Secretary of the Department of Justice and Border Control of Nauru (Secretary) for refugee status. The appellant's application was refused by the Secretary, and his subsequent application to the Tribunal for review of the Secretary's decision was also unsuccessful. The Tribunal accepted that minority groups in Somalia, such as the Gabooye tribe, suffer discrimination. However, it relied on country information which indicated that there were "police from every tribe in Somaliland" to conclude that the appellant would be able to receive assistance from the police and therefore this discrimination did not rise to the level of persecution. The Supreme Court of Nauru upheld the decision of the Tribunal on appeal. The appellant appealed to the High Court of Australia.

Decision

As reported in Allens' Impact Report, the appellant was successful on appeal to the High Court. While the appellant was not successful on his first ground of appeal (the High Court held that the Tribunal had not applied an incorrect test for 'persecution' within the meaning of the Convention and Protocol Relating to the Status of Refugees 1951), he was successful on his second ground of appeal. The High Court held that the appellant had not been afforded procedural fairness because the Tribunal failed to bring the country information to the appellant's attention. Importantly, this case set a precedent that has been relied upon in subsequent appeals from the Supreme Court of Nauru to the High Court of Australia. The High Court held that the appeal from the Supreme Court of Nauru lay as of right, and leave to appeal was not required because the Supreme Court was exercising its original jurisdiction when it determined the appeal from the Tribunal. The matter was remitted to the Tribunal for reconsideration according to law.

HFM045 v The Republic of Nauru [2017] HCA 50

Facts

The appellant, a Nepalese citizen and member of the Chhetri caste, fled from Nepal to seek asylum. Similarly to case discussed above, the appellant arrived at Christmas Island in 2013 and was subsequently transferred to Nauru where he applied for refugee status. His application for refugee status was denied by the Secretary, and his subsequent application for review to the Tribunal was unsuccessful. The Tribunal was not satisfied that the appellant faced a real possibility of persecution if he returned to Nauru. In response to the appellant's fear of persecution by Maoists in Nepal, it referenced a Nepalese army publication stating that "Chhetris are heavily represented in the army" and rejected the appellant's claim that the Maoist militia had been absorbed into the police force and army. The Supreme Court of Nauru upheld the decision of the Tribunal on appeal.

Decision

The High Court held that the Supreme Court of Nauru had failed to afford the appellant procedural fairness. The Tribunal was under a common law obligation to put the appellant on notice as to the significance it attached to the information in the report, and consequently to give him an opportunity to respond to that information. The appellant's application for review of the Secretary's decision was remitted to the Tribunal to be reviewed according to law.

DWN042 v The Republic of Nauru [2017] HCA 56

Facts

The appellant, a Sunni Muslim of Pashtun ethnicity and Pakistani national, fled from Pakistan to seek asylum. Similar to the cases discussed above, the appellant arrived at Christmas Island in 2013 and was subsequently transferred to Nauru where he applied for refugee status. In his application, he claimed that he was at risk of arbitrary deprivation of life by the Taliban. The Secretary refused his application, and his subsequent application for review to the Tribunal was unsuccessful. The Tribunal concluded that there was a "less than reasonable possibility" that the appellant would be targeted by the Taliban in the reasonably foreseeable future. On appeal to the Supreme Court of Nauru, the judge struck out the appellant's first and second grounds of appeal with reasons to be given later and the appeal proceeded on grounds three and four. When reasons were eventually given, both parties accepted the reasons were "plainly wrong". The appellant filed a notice of motion to reinstate grounds one and two, but judgment in relation to grounds three and four was delivered by the primary judge without hearing that notice of motion. The appellant appealed to the High Court of Australia.

Decision

The appellant was successful on one of the five grounds upon which it appealed to the High Court. The High Court held that the failure of the Supreme Court of Nauru to consider the appellant's notice of motion was a denial of procedural fairness. The matter was remitted to the Supreme Court of Nauru for reconsideration according to law.

Commentary

The Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (Agreement) gave rise to an unusual foreign appeal mechanism which has provided the High Court with jurisdiction to hear appeals from Nauru in certain circumstances. To date, the vast majority of the asylum seeker appeals from the Supreme Court of Nauru to the High Court to date have been successful.

However, very recently the Republic severed its ties with the Australian judicial system by withdrawing from the Agreement. No public notification was provided by the Republic at the time. This move by the Republic has significant and far-reaching consequences for the many asylum seekers on Nauru – these asylum seekers no longer have any option to challenge decisions of the Supreme Court. The Australian Government has indicated it support of the Republic's decision to terminate the Agreement.

This begs the question, will the Republic create a new avenue of appeal for asylum seekers enabling them to appeal decisions of the Supreme Court? Last month, the Republic indicated that it will create a Court of Appeal as the highest court in the land. The reasons cited for the creation of a Court of Appeal are that it will provide "easier access to justice" and a "greater degree of transparency in the delivery of justice", and be "less expensive and affordable for litigants". To date, no Nauruan legislation has been passed or amended to establish this new appeals mechanism.

So where does this leave asylum seekers who already have appeals on foot with the High Court? Appeals that were instituted before the Republic gave notice to Australia of its intention to abolish the appeal mechanism to the High Court will continue to be heard by the High Court. However, the High Court Registry is not accepting any new appeals.

The full decision in BRF038 v The Republic of Nauru is available here.

The full decision in HFM045 v The Republic of Nauru is available here.

The full decision in DWN042 v The Republic of Nauru is available here.

Shamistha Selvaratnam is a Lawyer and Elisabeth Sandbach was a Vacation Clerk at Allens.