DWN042 v The Republic of Nauru [2017] HCA 56: Failure to Accord Procedural Fairness

Wednesday 13 December 2017 @ 12.21 p.m. | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

On 13 December 2017, the High Court unanimously allowed an appeal from the Supreme Court of Nauru in DWN042 v The Republic of Nauru [2017] HCA 56, holding that the Supreme Court had failed in according DWN042 ('the appellant') procedural fairness, because it failed to consider a notice of motion.

Facts of the Case

The appellant arrived at Christmas Island by boat on August 2013. In September 2013, he was transferred to the Republic of Nauru under a Memorandum of Understanding between Nauru and Australia. The appellant then attended a transfer review in November 2013, during which a procedural form was completed which was not signed by the appellant. The appellant then applied to the Secretary of Justice and Border Control of Nauru (‘the Secretary’) for refugee status, claiming in his application that he was at risk of death at the hands of the Taliban. His application was refused by the secretary. The appellant then applied to the Refugee Status Review Tribunal '(the Tribunal') for review of the Secretary’s decision. His application was unsuccessful as the Tribunal found that there was a less than reasonable possibility that the appellant would be targeted by the Taliban in the reasonably foreseeable future.

Appeals

The appellant subsequently appealed the Tribunal's decision to the Supreme Court of Nauru (‘the Supreme Court’). At the hearing for the appeal, counsel for the respondent sought to be heard on a motion to strike out grounds 1 and 2 of the amended notice of appeal. The arguments proceeded on grounds 3 and 4, and on 20 May 2016 the primary judge gave his reasons for striking out grounds 1 and 2. The appellant then sought leave to appeal to the High Court from the interlocutory decision of the primary judge striking out grounds 1 and 2.  However, in light of the interlocutory nature of the application as well as due to assurances given by the respondent, the High Court then refused leave to appeal.

On 6 February 2017, which was the day before the judgement of the primary judge was due to be given, the appellant filed a notice of motion to reinstate the original grounds 1 and 2 and to reopen the appeal to further amend the grounds. On 7 February 2017, the primary judge delivered the final judgement without hearing that notice of motion by the appellant. Thereafter, the appellant appealed to the High Court as of right.

Grounds of Appeal

The appellant’s grounds of appeal to the High Court were:

  • That the primary judge erred in failing to consider the appellant’s notice of motion to reinstate grounds 1 and 2;
  • That the detention of the appellant at the time of the Tribunal hearing was unconstitutional;
  • That the primary judge erred in failing to concluded that the Tribunal erred in failing to consider part of the appellants claim to complementary protection;
  • That the primary judged erred in failing to conclude that the Tribunal erred by relying on the appellant’s unsigned and unsworn transfer interview form.

High Court Decision

The High Court dismissed the other grounds of appeal, but found that the Supreme Court’s failure to consider the appellant’s notice of motion was a denial of procedural fairness. They rejected the respondent’s contention that the primary judge was entitled to treat the notice of motion as having been abandoned. The High Court stated on this matter:

 “The notice of motion had only been filed the previous day. The Registrar, who had joined with the primary judge in advising that they were not in favour of telephone attendances, had notified the appellant's solicitors that it would be recommended to the judge that the hearing of the notice of motion be adjourned. And, as the appellant's solicitors were aware, the primary judge had been notified that the appellant's solicitors and counsel were unavailable to appear. Ms Keane was present only to take judgment.” [18]

The High Court, citing Stead v State Government Insurance Commission (1986) 161 CLR 141, highlighted that the appellant had not received a hearing at all:

“The respondent was correct not to submit that this appeal could be dismissed on the basis that a properly conducted hearing could not possibly have produced a different result. That principle does not apply where, as was the case with the appellant's notice of motion, a party receives no hearing at all. The appellant was, and is, entitled to a hearing in the Supreme Court. It is not for this Court to attempt to provide the hearing that the appellant has not had, or to attempt to give any judgment such as might be thought to have been appropriate in the Supreme Court.” [21]

The High Court therefore allowed the appeal on that ground unanimously and set aside the order made by the Supreme Court and ordered that it be remitted to the Supreme Court of Nauru.

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Sources:

DWN042 v The Republic of Nauru [2017] HCA 56,and judgement summary. 

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