CRI026 v The Republic of Nauru

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gageler,Nettle JJ.
• Judgment Date: 16 May 2018
• Neutral Citation: [2018] HCA 19
• Docket Number: M131/2017
• Date: 16 May 2018
• Court: High Court

[2018] HCA 19

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler AND Nettle JJ

M131/2017

CRI026

Appellant

and

The Republic of Nauru

Respondent

Representation

A T Broadfoot QC with M L L Albert and S Gory for the appellant (instructed by Fitzroy Legal Service)

G R Kennett SC with A Aleksov for the respondent (instructed by Republic of Nauru)

Convention Relating to the Status of Refugees (1951) as modified by the Protocol Relating to the Status of Refugees (1967), Art 1A(2).

Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art 3.

International Covenant on Civil and Political Rights (1966), Arts 2, 6, 7, 12.

Nauru (High Court Appeals) Act 1976 (Cth), s 5.

Refugees Convention Act 2012 (Nr), ss 3, 4, 43.

Migration — Refugees — Appeal as of right from Supreme Court of Nauru — Where Secretary of Department of Justice and Border Control of Nauru (“Secretary”) determined appellant not refugee under Refugees Convention Act 2012 (Nr) — Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act — Where Refugee Status Review Tribunal (“Tribunal”) affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin to place where persecutors had little or no influence or power — Where Tribunal's reasons contained typographical error — Where Tribunal issued corrigendum correcting error — Where Supreme Court of Nauru affirmed Tribunal's decision — Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection — Whether typographical error in Tribunal's reasons disclosed error — Whether ability of appellant's family reasonably to relocate relevant to assessing appellant's ability reasonably to relocate — Whether Tribunal erred in failing to consider whether appellant's family able reasonably to relocate in assessing appellant's ability reasonably to relocate — Whether Tribunal's finding that persecutors had little or no influence or power in place of relocation supported by evidence.

Words and phrases — “complementary protection”, “corrigendum”, “freedom of movement”, “internal flight alternative”, “internal relocation”, “non-refoulement”, “reasonable internal relocation”, “reasonable relocation”, “refugee”, “subsidiary protection”, “typographical error”, “well-founded fear of persecution”.

ORDER

• 1. Leave to amend the notice of appeal refused with costs.

• 2. Leave to be heard on Ground 3 refused with costs.

• 3. Appeal dismissed with costs.

1 Kiefel CJ, Gageler AND Nettle JJ. This is an appeal as of right, pursuant to s 5 of the Nauru (High Court Appeals) Act 1976 (Cth), from a judgment of the Supreme Court of Nauru (Crulci J). The Supreme Court dismissed the appellant's appeal brought under s 43 of the Refugees Convention Act 2012 (Nr) (“the Refugees Act”) against a decision of the Refugee Status Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of the Secretary of the Department of Justice and Border Control, made pursuant to s 6 of the Refugees Act, to reject the appellant's application to be recognised as a refugee in accordance with the Act or as a person to whom the Republic of Nauru (“Nauru”) owes complementary protection under the Act.

The facts

2 As appears from the Tribunal's reasons, the appellant was born on 13 July 1975 in Sialkot in Punjab Province, Pakistan, but had lived most of his life in Karachi. Between 2003 and 2005, however, he lived in Sialkot, and, between 2010 and 2011, he lived in Lahore. He had completed nine years of schooling and held an electrical certificate. Between 2003 and 2011, he was self-employed in Pakistan as an electrician and air conditioning mechanic.

3 The appellant married in Pakistan on 5 November 2006 and had two children, one born after he left Pakistan in 2011. His wife and children were living in Sialkot with her family. His parents, who emigrated from India many years ago, were resident in Karachi. His father worked in Dubai for some 15 to 20 years and retired four or five years before the Tribunal hearing. Two of the appellant's brothers, Faisal and Nasier, were in Dubai and Libya, respectively, and his other brother, Asif, had been in Libya but at the time of the hearing was living with the appellant's wife and children in Sialkot. The appellant had relatives living in Roras and Sambrial in the Sialkot district.

4 The appellant departed Pakistan in 2011 and went to Malaysia. He arrived in Nauru in December 2013.

The appellant's case before the Tribunal

5 The appellant's case before the Tribunal was that he was a refugee under the Refugees Act or, alternatively, that he was a person to whom Nauru owed complementary protection under the Act because his circumstances engaged Nauru's international obligations under, inter alia, the International Covenant on Civil and Political Rights (1966) (“the ICCPR”). 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”). He said that he feared that the MQM would seek to hurt him to get revenge for an injury which he had inflicted on one of their senior members, Munir Tunda, in a fight at a cricket game some years before, and also because they viewed him as a political dissident. He claimed that he feared that the MQM would be able to find him anywhere in Pakistan and that the State would not be willing to protect him because the MQM are supported by and allied with the Pakistani authorities. He said that he also feared harm from generalised violence and insecurity in Pakistan.

The Tribunal's decision

6 The Tribunal accepted that the appellant might be regarded adversely by Munir Tunda as a result of the injury inflicted on Munir Tunda at the cricket game. The Tribunal did not accept that Munir Tunda held a senior position in the MQM but allowed that he might be a powerful person in Karachi associated with the MQM. The Tribunal accepted that the appellant was threatened in Karachi in 2003 and 2009 and that his shop was burnt down in 2003 by persons associated with Munir Tunda, and that those persons may have done so in retaliation for the assault. The Tribunal found that the MQM remained powerful in Karachi, albeit their power had diminished in recent times due to a high level of ethno-political violence between the MQM and the Awami National Party in 2012 and targeting by militant groups. It appeared to the Tribunal that the MQM were still dominant at the local and provincial level, having won 15 of the 20 National Assembly seats in 2013, and were allied to the Pakistani military. As against that, however, the Tribunal noted that the appellant's father had not reported any further threats or contact with Munir Tunda's associates since the appellant left Pakistan, and that the last threat was in 2009. The Tribunal further observed that it had been 12 years since the fight at the cricket game and six years since the last contact or threat. Consequently, it did not appear to the Tribunal that Munir Tunda or his associates had been searching for the appellant or waging a systematic vendetta against him. But it was possible that they might opportunistically harm him if they were to encounter him in Karachi.

7 In the result, the Tribunal accepted that there was a real possibility that if the appellant were returned to Karachi he would be harmed by Munir Tunda or his associates, but only for reasons of personal revenge and not because of the appellant's political inclinations. The Tribunal further accepted that state protection from the police or other authorities in Karachi may be inadequate or withheld from the appellant because of Munir Tunda's political connections and involvement with the MQM. But the Tribunal also found that, due to the MQM's absence of power and influence in Punjab, the size of the population of Punjab, the existence of large urban centres such as Lahore and Sialkot and the fact that the appellant had previously lived in Lahore and Sialkot without coming to any harm, the appellant could live safely in Sialkot or Lahore or elsewhere in Punjab without a real possibility of harm from Munir Tunda or his associates. For reasons which the Tribunal specified, the Tribunal found, too, that relocation to Punjab would be reasonably available to the appellant. Further, due to the low level of attacks and casualties in Punjab, including Lahore and Sialkot, relative to the size of the population, and the fact that the appellant was not politically active and was a member of the religious majority, the Tribunal was satisfied that the risk of the appellant being harmed in generalised insecurity was remote and not a real possibility.

8 The Tribunal decided, therefore, that the appellant was not a refugee and that, because there was not a real risk that he would be subjected to torture, cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty if he were returned to Pakistan, he was not owed complementary protection.

The Supreme Court's decision

9 In dismissing the appellant's appeal to the Supreme Court, Crulci J held that the Tribunal had not erred in applying a reasonable internal relocation test to the appellant's claim for complementary protection 1; that the Tribunal had taken into account all matters relevant to whether the appellant could reasonably relocate to Punjab; and that the Tribunal's reasons did not otherwise disclose an error of law 2.

Grounds of appeal

10 The appellant's grounds of appeal to this Court are as follows:

• “1. The Supreme Court erred by failing to conclude:

  • (a) that the Refugee Status Review Tribunal ( Tribunal) had misapplied the Nauruan law of complementary protection (as embodied in s...