High Court Dismisses Appeal: WET052 v The Republic of Nauru [2018] HCA 47

Friday 19 October 2018 @ 10.38 a.m. | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

In the case of WET052 v The Republic of Nauru [2018] HCA 47 (17 October 2018), the High Court of Australia (“High Court”) has, on 17 October 2018, unanimously dismissed an appeal from a judgment of the Supreme Court of Nauru (the “Supreme Court”).

Background

The appellant, who was born in 1990 and is an Iranian citizen of Turkmen ethnicity, arrived on Christmas Island in 2013. He was then subsequently transferred from Australia to the Republic of Nauru [against his will] in February 2014, where on 21 February 2014 the appellant underwent a "transfer interview".  On 26 May 2014, the appellant applied under the Refugees Convention Act 2012 (Nr) to the Secretary of the Department of Justice and Border Control ("the Secretary") to be recognised “as a refugee or, alternatively, as a person owed complementary protection”, but the Secretary refused his application.

The appellant then applied to the Refugee Status Review Tribunal (the “Tribunal") for a merits review of the Secretary's decision, but the Tribunal identified concerns with some of the appellant's claims and based on these concerns, the Tribunal concluded that it was not satisfied of the credibility of the appellant's claims. Partly because of this finding, the appellant then appealed to the Supreme Court of Nauru, which dismissed his appeal. The appellant then appealed to the High Court.

The Appellant’s Claims

The appellant claimed that he had a well-founded fear of being persecuted by reason of his association with his father, who he alleged was physically abusive to , was an alcoholic and drug addict, engaged in drug trafficking and compelled the appellant to engage in drug trafficking with him.

At para [2] of the judgement, the High Court outlined his claims as follows:

“ … He left Iran because his father was an alcoholic who physically abused him …  his father had burned his hands with cigarettes and cut him with a knife … he had run away from home three times but each time his father found him and brought him home … he was not feeling safe at home. His mother had urged him to flee Iran, and, with money she gave him, he was able to leave …”

And at [7]:

“His father has friends in the … police who, the appellant believes, helped his father to find him each time he ran away … The family's neighbours had filed complaints against his father in the past but he has been protected by his connections with the authorities … He cannot find safety by relocating elsewhere in Iran because of his father's connections …”

The Secretary initially refused the application as:

“the Secretary did not accept that the appellant's father was involved in drug trafficking, that the appellant had been compelled to engage in drug trafficking on his father's behalf, that on each occasion he had attempted to flee home the appellant had been forced to return home, or that his father has close personal connections with the Iranian authorities which he could use to threaten the appellant's safety [at 8-9]”

The Tribunal also rejected the appellant's claims, saying

“… On the information before it, the Tribunal is not satisfied as to the credibility of the [appellant's] claim that his father is a drug addict or drug dealer, or that he forced the [appellant] to use drugs and transport drugs to his friends and others. ... The Tribunal finds that these claims have been fabricated by the [appellant] to strengthen his case for protection. Given these findings the Tribunal does not accept that the [appellant] would be at risk of persecution in Iran on ... Convention ground[s]" [at 14]

The High Court Decision

The appellant contended that the Tribunal had not properly considered whether he was at risk of persecution in Iran, either as a returned asylum seeker who had an adverse political profile or as a returned asylum seeker. 

The Tribunal claimed the appellant did not satisfactorily explain why, in his initial interview upon transfer to Nauru, he did not mention his father's involvement in the use and supply of illicit drugs. They also found the appellant's claim that his father would force him to distribute drugs on an almost full-time basis for three or four years, and the proposition that his father would deliberately implicate the appellant and himself in drug dealing, difficult to accept.

The High Court held that “the appellant had not in fact advanced the particular claim before the Tribunal, and therefore it was not necessary for the Tribunal to have considered it” and also held that the Tribunal had considered and indeed come to a conclusion on the general claim, and that the Tribunal's conclusion was open to it. For those reasons, the High Court refused the appellant leave to raise the proposed ground of appeal and dismissed the appeal.

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Sources:

WET052 v The Republic of Nauru [2018] HCA 47 (17 October 2018)

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