The Republic of Nauru v WET040 [No 2] [2018] HCA 60: High Court Allows Appeal

Friday 7 December 2018 @ 1.40 p.m. | Legal Research | Immigration

On 5 December 2018, the High Court of Australia (“High Court”) unanimously allowed an appeal from a decision of the Supreme Court of Nauru, holding that the Refugee Status Review Tribunal ("Tribunal") had not erred in dismissing the respondent's application to be recognised as a refugee or as person owed complementary protection by the Republic of Nauru under the Refugees Convention Act 2012 (Nr).

Background

The respondent (who is an Iranian national), arrived in Nauru in January 2014.  In his Refugee Status Determination application, he claimed to have married in 2010, and that the first two years of his marriage were relatively problem free. 

Approximately five or six months before he left Iran, he initially discovered that his wife had been previously married and divorced, this he claimed “made him confused and suffer loss of face”.  Upon attempting to divorce his wife, he claimed that his wife's family then took a number of steps to convince him not to divorce his wife, including pouring acid on his car and making threats of a personal nature to him.

The respondent also claimed that his father-in-law was using his connections to a state para-military organisation [the Basij] to have him followed and claimed to fear that if returned to Iran, he would be detained, imprisoned, tortured, attacked with acid or killed, either through the justice system at his father-in-law's behest or extra judicially by his brothers-in-law, and that there was no place in Iran where he would be safe.

The Secretary of the Department of Justice and Border Control (the “Secretary") rejected the respondent's application

Application to the Tribunal

On his application to the Tribunal for review of the Secretary's determination, the respondent claimed that the main reasons he fled Iran and feared returning were: 

  • that he would be perceived as having a political and religious opinion that was anti-government, anti-regime and anti-Islamic;
  • that his status as a failed asylum seeker would further be seen as reflecting his imputed anti-regime sentiments; and
  • that he would be prejudiced because of his lack of religious beliefs and his ethnicity as an Azeri Turk. 

The Tribunal rejected the respondent's claims and affirmed the Secretary's determination, holding that there were good reasons to doubt the truth of the respondent's claims concerning the enmity of his wife's family towards him and at [para 70] of the Tribunal’s reasons stated:

“Having considered the information provided by the [respondent], the Tribunal believes there are good reasons to doubt the truth of his claims concerning the enmity of his wife's family toward him. The Tribunal notes that he has provided a shifting set of explanations for these alleged attitudes, as follows."

Appeal to the Supreme Court

The respondent appealed to the Supreme Court, which allowed his appeal on the basis that the Tribunal had erred by finding that certain claimed events were "implausible" without any rational basis and without pointing to "basic inconsistencies in the evidence", or "probative material" or "independent country information". 

The High Court Appeal

The appellant then appealed to the High Court, arguing that the Tribunal had not failed to give adequate reasons for their decision. Their Honours noted at [para 4] of their judgment:

“The Tribunal found that material aspects of the respondent's factual allegations were implausible. On appeal to the Supreme Court of Nauru, Crulci J held that the Tribunal had failed to comply with s 34(4) of the Refugees Act by failing to identify the ‘basic inconsistencies’ or ‘probative material’ or ‘independent country information’ on which the Tribunal based their conclusion of implausibility. For the reasons which follow, the Tribunal did not fail to give adequate reasons for their decision, and the appeal should be allowed.”

The High Court unanimously held that the Supreme Court's reasoning was erroneous.  The Tribunal had provided sufficient reasons for why it found the respondent's account of events to be implausible.  The Tribunal's conclusions “were not speculative or matters of conjecture or unsupported by basic inconsistencies but were the result of logical inferences grounded in the inherent improbability of the respondent's account of events and in the fact that his claims had shifted from time to time.”

In closing, their Honours said at [para 40] of their judgment:

“… It follows that the appeal should be allowed. The orders of the Supreme Court of Nauru should be set aside and in their place it should be ordered that the appeal to the Supreme Court be dismissed with costs. The respondent should pay the appellant's costs of the appeal to this Court.”

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Sources:

The Republic of Nauru v WET040 [No 2] [2018] HCA 60 (5 December 2018)

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