EMP144, DWN027, CRI026 v The Republic of Nauru: Complementary Protection in the High Court

The High Court of Australia has today (16 May 2018) unanimously dismissed three appeals from decisions of the Supreme Court of Nauru that found that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the appellant's claim for complementary protection under the Refugees Convention Act 2012 (Nr) ("the Refugees Act").

EMP144 v The Republic of Nauru

In the matter, EMP144 v The Republic of Nauru [2018] HCA 21 (16 May 2016), the appellant was from Pakhu in Nepal, where he had lived with his wife and child. He was a member of, and later became the vice-president of, the local branch of a pro-Royalist political group.  The appellant had arrived in the Republic of Nauru ("Nauru") in 2013 and applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act.  He claimed that he had a well-founded fear of being persecuted in Nepal by reason of his political views – alleging that local Maoist groups had previously attacked him and had burned down his home because he did not support the Maoist ideology. 

The application was rejected by the Secretary and the Tribunal.  The Tribunal accepted that the appellant had suffered serious harm amounting to persecution at the hands of particular local Maoist groups because of his political opinion, and that such harm might re-occur in the future if he were to return to the area where he had suffered the harm; however,  it affirmed the Secretary's decision  because it was localised harm and the appellant could reasonably relocate to elsewhere in Nepal.  An appeal to the Nauru Supreme Court against the Tribunal's decision was dismissed.

On appeal to the High Court of Australia, it was alleged that the Tribunal had erred in determining the claim for complementary protection by reference to the appellant’s ability to reasonably to relocate within Nepal.  It was further alleged that the Tribunal had erred in failing to draw the appellant’s attention to the issue of whether it would be reasonable for him to relocate within Nepal, and in failing to consider articulated reasons as to why he could not reasonably relocate.  It was also claimed that the Tribunal misunderstood country information about Nepali citizenship law.

The High Court held that, having regard to international jurisprudence, unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. 

The Court further held that, having regard to the evidence and submissions before the Tribunal, the Tribunal had considered the appellant's objections to internal relocation and the appellant and his legal representatives were aware from the outset of the significance of the issue of whether it would be reasonable for him to relocate within Nepal.  It was also held that the Tribunal had not failed to take into account the factors relevant to the appellant's claim for complementary protection, and that the Tribunal had not misunderstood the country information about Nepali citizenship.

DWN027 v The Republic of Nauru

In the matter DWN027 v The Republic of Nauru [2018] HCA 20 (16 May 2018) the appellant was a Sunni Muslim man of Pashtun ethnicity from Peshawar in Pakistan where he resided with his wife and young child.  He arrived in Nauru and applied to the Secretary to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act. The appellant claimed that he had a well-founded fear of being persecuted by the Taliban by reason of his actual or imputed political opinion.  The Secretary rejected the application and the Tribunal affirmed the Secretary's decision because while there was a real possibility that if the appellant were returned to Peshawar he would be harmed by the Taliban, it would be reasonable in the circumstances for him to relocate to another area in Pakistan – on appeal the Supreme Court dismissed an appeal against the decision of the Tribunal.

On appeal to the High Court of Australia, it was alleged that the Tribunal had erred in determining the appellant’s claim for complementary protection by reference to his ability reasonably to relocate within Pakistan, and in failing to take into account a number of integers said to be relevant to the question of whether he could reasonably relocate.  Further , the appellant alleged that the Tribunal erred in determining his claim for complementary protection without having regard to Nauru's international obligation under the Convention on the Rights of the Child (1989) ("the CRC") to give primary consideration to the best interests of his child.

The High Court held that, unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. 

The High Court further held that the Tribunal had not failed to take into account the factors relevant to the appellant's ability reasonably to relocate within Pakistan.   Further, the Court held that it was unnecessary to decide whether the Tribunal were bound to give primary consideration to the best interests of the appellant's child under the CRC because the appellant did not contend before the Tribunal that they were bound to decide his claim for complementary protection by reference to the best interests of his child and, consequently, he did not adduce any persuasive evidence that his child's best interests would be adversely affected by the refusal of his claim.

CRI026 v The Republic of Nauru

In the matter CRI026 v The Republic of Nauru [2018] HCA 19 (16 May 2018), the appellant was born in Sialkot in Pakistan, but had lived most of his life in Karachi, while his family lived in Sialkot. Arriving in Nauru in 2013, he applied to the Secretary to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act.  He claimed that he could not or did not want to return to Pakistan because he feared that upon his return he would be harmed by members of the Muttahida Qaumi Movement ("the MQM") by reason of an injury he had inflicted on one of their senior members, and also because they viewed him as a political dissident. 

The Secretary rejected the application and the Tribunal affirmed the Secretary's decision that it would be reasonable in the circumstances for him to relocate to Punjab in Pakistan where the MQM had no power or influence and the risk of being harmed was remote and not a real possibility. The Supreme Court dismissed an appeal against the Tribunal's decision.

On appeal to the High Court of Australia it was alleged that the Tribunal had erred in determining the appellant’s claim for complementary protection by reference to his ability reasonably to relocate within Pakistan and his circumstances in the event he were returned to Sri Lanka, as opposed to Pakistan.  The appellant further alleged that the Tribunal erred in failing to consider whether it was reasonable for his family to relocate to Punjab and in finding that the MQM had no power or influence in Punjab.

The High Court held that unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. 

Further, the Court held that, reading the Tribunal's reasons as a whole, the incongruous observation which referred to Sri Lanka and Tamils rather than Karachi and the MQM was a typographical error and did not disclose that the Tribunal's reasoning process was affected by error.  Accordingly, it was not necessary to consider whether the Tribunal had the power to issue the corrigendum correcting the error.  In relation to the alleged failure to take into account the appellant's family in determining his claim for complementary protection, the Court found that there was no substantial, clearly articulated argument of the kind suggested by the appellant and thus the Tribunal was not required to consider it.  As regards the finding that the MQM had no power or influence in Punjab, the High  Court concluded that there was nothing to say that there was insufficient evidence to sustain the Tribunal's finding.

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EMP144 v The Republic of Nauru [2018] HCA 21 (16 May 2016)

DWN027 v The Republic of Nauru [2018] HCA 20 (16 May 2018)

CRI026 v The Republic of Nauru [2018] HCA 19 (16 May 2018)