Procedural Fairness: HFM045 v The Republic of Nauru [2017] HCA 50
Wednesday 15 November 2017 @ 12.48 p.m. | Judiciary, Legal Profession & Procedure | Legal Research | Immigration
The High Court of Australia has overturned a judgment made by the Supreme Court of Nauru, finding that the Refugee Status Review Tribunal (“the Tribunal”) had failed to accord a Nepalese refugee applicant procedural fairness by not putting him on notice that it intended to use information about the composition of the Nepalese army in determining his application. In a joint judgment, Justices Bell, Keane and Nettle allowed the appeal, and ordered that the matter be remitted to the Tribunal for determination.
Facts
The appellant in the case was a Nepalese citizen and a member of the Chhetri caste, who make up 20% of the population of Nepal. In May 2013, he left Nepal, arriving at Christmas Island in September 2013, before being transferred to Nauru in November 2013. He applied for a refugee status determination in Nauru in January of 2014, arguing that he feared persecution from Maoists on the grounds of his political opinion and his membership of the Chhetri caste.
The Secretary of the Department of Justice and Border Control ("the Secretary") determined he was not a refugee. The appellant applied to the Tribunal for a merits review of the Secretary’s decision, but this application was unsuccessful, as was an appeal to the Supreme Court of Nauru. The appellant then appealed to the High Court.
Decision
The appellant contended at the High Court that:
“the Supreme Court erred in failing to find that the Tribunal denied him procedural fairness in not putting him on notice of certain information, namely: (i) the changed political circumstances in Nepal; (ii) the proportion of Chhetris in the Nepalese army; and (iii) the persons targeted by Limbuwan activists in Jhapa. The appellant's case is that the Tribunal failed to comply with the obligation of procedural fairness imposed by s 37 of the Refugees Convention Act 2012 (Nr) ("the Refugees Act") and under the common law. The appellant's second ground of challenge asserts that the Supreme Court erred in failing to find that the Tribunal applied an incorrect test to the determination of his complementary protection claim. “ [at 5]
The High Court rejected the appellant’s second ground of challenge that the Tribunal had applied an incorrect test. However, the High Court accepted the argument that the Tribunal had not afforded the appellant the correct degree of procedural fairness, in particular with regard to the information it put forward regarding the proportion of Chhetris in the Nepalese army:
“The Tribunal was obliged to put the appellant on notice of the significance that it was disposed to attach to the reported level of representation of Chhetris in the Nepalese army and to give him the opportunity to address the issue. The premise for Nauru's alternative submission, that the denial of procedural fairness could not have deprived the appellant of a different outcome, is not made good. There is no reason to decline to grant the relief that the appellant claims.” [at 49].
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Sources:
HFM045 v The Republic of Nauru [2017] HCA 50 & judgment summary
