Recognition as a refugee: HFM043 v The Republic of Nauru [2018] HCA 37

In HFM043 v The Republic of Nauru [2018] HCA 37 (15 August 2018), the High Court of Australia unanimously allowed an appeal from the Supreme Court of Nauru, and held that the Supreme Court of Nauru erred in holding that the Refugees Convention Act 2012 (Nr) section 31(5) made it futile to remit the appellant's application for merits review to the Refugee Status Review Tribunal (the Tribunal).

Background to the Case

The appellant applied to the Secretary of the Department of Justice and Border Control of Nauru (the Secretary) for recognition as a refugee on January 2014. The Secretary determined that the appellant was not a refugee and she was not entitled to complementary protection. This decision was affirmed by the Tribunal in March 2015. 

The appellant appealed to the Supreme Court of Nauru. However, prior to the determination of the appeal, the appellant married Mr B, who had been recognised as a refugee.  As a result the appellant's solicitors emailed he Republic of Nauru's Refugee Status Determination Lawyer and informed the Government of Nauru of  the appellant’s "dependency on her husband" attaching submissions and statements in support of the appellants "Application for Derivative Status".  A document entitled "Refugee Determination Record" was issued to the appellant in August 2016 which stated that the Secretary had determined that the appellant was a refugee and there was no dispute that this document referred to the appellant's derivative status as a dependant of her husband. 

Appeal to Supreme Court of Nauru

On 9 June 2017, the Supreme Court of Nauru held that the Tribunal had made an error of law by failing to adjourn the hearing so that the appellant could obtain a full medical report.  The Supreme Court of Nauru made an order dismissing the appellant's appeal on the basis that it would be futile to remit the matter to the Tribunal "due to the operation of section 31(5)" of the Refugees Convention Act 2012 (Nr).  Section 31(5) provides that an application for a merits review by the Tribunal ". . . that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time".

Appeal to High Court

On appeal, the High Court held that section 31(5) of the Refugees Convention Act 2012 (Nr) did not apply to the appellant.  Section 31(5) applies only to persons who have been given a "Refugee Determination Record" as defined by section  3 of the Refugees Convention Act 2012 (Nr), which confines the meaning of that term to a document issued under section  6(2A).  The document issued to the appellant in August 2016 was not a document issued under section 6(2A), as that provision came into effect on 23 December 2016 and was not given retrospective effect.  The High Court set aside the orders of the Supreme Court of Nauru and remitted the matter to the Tribunal for determination according to law.

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HFM043 v The Republic of Nauru [2018] HCA 37 (15 August 2018) and transcripts and summaries.