High Court Dismisses Migration Appeal from Supreme Court of Nauru
Wednesday 11 April 2018 @ 11.58 a.m. | Legal Research | Immigration
Today, 11 April 2018, the High Court of Australia released its judgment in the appeal from the Supreme Court of Nauru: WET044 v The Republic of Nauru [2018] HCA 14. In a joint judgment, Chief Justice Kiefel, and Justices Gagler and Keane dismissed the appeal, holding that the appellant’s contentions against the Refugee Status Review Tribunal (the “Tribunal”) had no merit.
Background
The appellant is an Iranian citizen, with Faili Kurdish ethnicity. In 2013, he arrived in Christmas Island, and was then moved to Nauru. When in Nauru, he applied to be recognised as a person, under the Refugees Convention Act 2012 (Nr) (the "Refugees Act"), to whom Nauru owed protection under its international obligations, or alternately as a refugee. The Secretary of the Department of Justice and Border Control (the “Secretary) rejected this application.
The decision of the Secretary was affirmed by the Tribunal, and an appeal to the Supreme Court of Nauru was subsequently dismissed. The appellant then appealed by right to the High Court of Australia under section 44(a) of the Appeals Act 1972 (Nr).
The Grounds of Appeal
The grounds of appeal were briefly outlined by the High Court in paragraph 7 of their judgment:
“The appellant filed a notice of appeal in this Court contending that the Tribunal erred in law by failing to deal with submissions and country information provided by the appellant with respect to the risk of returning to Iran as a failed asylum seeker. The appellant subsequently filed a summons seeking leave to amend his notice of appeal in order to expand the first ground of appeal and insert a new ground contending that the Tribunal acted in a way that was procedurally unfair by failing to put to him the nature and content of country information it relied upon concerning the risk of harm to Kurds who are Shia Muslim. The respondent submits that leave to amend the notice of appeal should not be granted because the grounds lack any merit.”
The Judgment
The High Court jointly dismissed the first ground of appeal by the appellant, that “the Tribunal erred in law by failing to deal with submissions and country information provided by the appellant with respect to the risk of returning to Iran as a failed asylum seeker”. This ground failed as there was evidence that the Tribunal read the country information regarding the risk of returning to Iran as a failed asylum seeker. As stated in paragraph 11 of the judgment:
“It is not readily to be inferred in these circumstances that the Tribunal, having read the appellant's statement and the further submissions, would ignore the material to which they referred. In any event the information upon which the appellant relies is not such as to have required the Tribunal to comment upon it. Most of it was before the Secretary in one form or another and does not contradict the opinions stated by the Secretary.”
The High Court also dismissed the appellants ground of appeal that the Tribunal acted in a way that was procedurally unfair by not providing the appellant with particular country information which was relied upon by the Tribunal. In holding this, the Court held that the appellant knew either directly, or indirectly through his lawyer, of the information which was subsequently relied upon. The Court summarised this in paragraphs 25 and 26 of the judgment:
“[25] The appellant's argument that he was not referred to the country information upon which the Tribunal relied also founders. The first piece, quoted above, was set out in the reasons of the Secretary when dealing with the question of discrimination against Kurds.
[26] The second piece of country information was known to the appellant. It was contained in a report to which the appellant referred in his submissions to the Tribunal. Whilst the appellant did not cite this passage, his legal representative, who prepared the excerpts from the country information, must be taken to be aware of it. The rules of natural justice did not require the Tribunal to bring it to the appellant's attention.”
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Sources:
WET044 v The Republic of Nauru [2018] HCA 14
