ETA067 v The Republic of Nauru

• Jurisdiction: Australia Federal only
• Judge: Bell,Keane,Gordon JJ.
• Judgment Date: 17 October 2018
• Neutral Citation: [2018] HCA 46
• Court: High Court
• Date: 17 October 2018
• Docket Number: M167/2017

[2018] HCA 46

HIGH COURT OF AUSTRALIA

Bell, Keane AND Gordon JJ

M167/2017

ETA067

Appellant

and

The Republic of Nauru

Respondent

Representation

G O'L Reynolds SC with J F Gormly and D P Hume for the appellant (instructed by Allens)

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

Refugees Convention Act 2012 (Nr), ss 5, 22(b), 40(1).

Immigration — Nauru — Refugees — Application for refugee status — Where Secretary of Department of Justice and Border Control determined appellant not refugee — Where Refugee Status Review Tribunal affirmed Secretary's determination — Whether Tribunal failed to act according to principles of natural justice — Whether Tribunal failed to assess evidence provided by appellant in relation to his claim to have a well-founded fear of persecution by reason of his political opinion — Whether Tribunal failed to give appellant an opportunity to comment on evidence concerning membership of political party — Whether Supreme Court of Nauru erred in affirming Tribunal's determination.

Words and phrases — “evidence material to assessment”, “principles of natural justice”, “well-founded fear of persecution”.

ORDER

Appeal dismissed with costs.

1 Bell, Keane AND Gordon JJ. The appellant, a 32 year old male, is a citizen of Bangladesh. Until he left Bangladesh, the appellant had always lived in the same suburb in Dhaka.

2 On 19 December 2013, the appellant arrived in Australia as an unauthorised maritime arrival and, on 24 December 2013, the appellant was transferred to the Republic of Nauru. On 20 March 2014, the appellant applied to the Secretary of the Department of Justice and Border Control (“the Secretary”) under s 5 of the Refugees Convention Act 2012 (Nr) (“the Refugees Act”) to be recognised as a refugee on the basis that he feared harm by reason of his affiliation with the Bangladesh Nationalist Party (“the BNP”) and his actual or imputed opposition to the political group the Awami League.

3 The appellant claimed that he had been involved with, and worked for, the BNP from 2004 to 2008 and had been physically harmed in violent clashes between the BNP and the Awami League. The appellant ended his involvement with the BNP in 2008 and claimed that this was because he “didn't have the time to devote to the BNP” and he “wasn't interested in politics at [that] time”; he was not enjoying the work that he was doing, the “anarchy” had become worse, and he had had enough. The appellant claimed that, after he ceased his involvement with the BNP, members of the Awami League started “pressuring” him to join them. The appellant claimed to fear persecution by reason of his political opinion (due to his support for, and involvement with, the BNP) and by reason of his imputed political opinion (as a person opposed to the Awami League).

4 On 13 March 2015, the Secretary determined that the appellant was not recognised as a refugee and was not a person to whom the Republic of Nauru owed complementary protection. Following an application for review of the Secretary's decision, the Refugee Status Review Tribunal (“the Tribunal”) conducted an oral hearing and, on 30 September 2015, affirmed the Secretary's decision. The Tribunal found that the appellant had not suffered harm amounting to persecution in the past by reason of his imputed political opinion and was also not satisfied that his fear of persecution, by reason of his political opinion, was well-founded. The Tribunal also considered that even if it were to accept that some harm might befall the appellant on return to Bangladesh, that harm would be “very localised” – confined to the suburb of Dhaka where his home is – and limited to harm threatened by local members or supporters of the Awami League. On 13 November 2017, the Supreme Court of Nauru affirmed the decision of the Tribunal.

5 In this appeal, which is brought as of right 1, the appellant advanced two grounds of appeal. The grounds, in substantially similar terms to the grounds the appellant unsuccessfully advanced before the Supreme Court, were that the Court erred in failing to find that:

• (1) the Tribunal breached s 22(b) of the Refugees Act in that it “ignored and failed to assess relevant evidence provided by the appellant” in relation to assaults by supporters of the Awami League against persons who had refused to join, or attend meetings with, the Awami League (“the Awami League Assault Evidence”); and

• (2) the Tribunal breached ss 22(b) and 40(1) of the Refugees Act by not giving the appellant an opportunity to ascertain or comment on whether he was ever a formal member of the BNP, and thereby acted contrary to the principles of natural justice.

6 During the hearing, the appellant was granted leave to amend the second ground to include a reference to information from the BNP website to which the Tribunal had regard 2 and to which he alleged the Tribunal failed to give him an opportunity to respond.

7 For the reasons that follow, the appeal should be dismissed. Statutory obligations

8 The appellant's grounds centre on an alleged failure of the Tribunal to comply with certain provisions – ss 22(b) and 40(1) – of the Refugees Act.

9 Section 22, in Div 2 of Pt 3 of the Refugees Act, sets out the “[w]ay of operating” for the Tribunal. It provides that the Tribunal is not bound by

technicalities, legal forms or rules of evidence 3 and “must act according to the principles of natural justice and the substantial merits of the case” 4.

10 Part 4 governs the procedures for merits review by the Tribunal. Section 40, in Div 2 of that Part, relevantly provides:

• “(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the determination or decision under review.

• (2) Subsection (1) does not apply if:

  • (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

  • (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it.” (emphasis added)

The Awami League Assault Evidence – Ground 1

11 The appellant contended that the Tribunal breached s 22(b) of the Refugees Act when the Tribunal allegedly “ignored and failed to assess relevant evidence provided by the appellant”. That evidence was described in the following terms:

“(a) The evidence was of assaults by Awami League supporters against:

• (i) a particular young man named by the appellant who, like the appellant, had refused to join the Awami League; and

• (ii) others named by the appellant in the Refugee Status Determination interview who had refused to attend Awami League meetings.”

12 The appellant contended that this evidence “was relevant to the well foundedness of the appellant's fear that Awami League supporters intended to harm him”. The appellant's complaint was that there was no consideration by the

Tribunal of whether assaults on others by the Awami League gave rise to the appellant's well-founded fear of persecution. The appellant submitted that if the Awami League Assault Evidence had been considered by the Tribunal, it would have been expressly dealt with in the Tribunal's reasons. The contention should be rejected.

13 The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal 5. That is especially so when regard is had to the content of the obligation to give reasons 6, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

14 Further, there is a distinction 7 between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims 8, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim 9 or that would be dispositive of the review 10.

15 In this matter, there was no error on the part of the Tribunal in relation to the Awami League Assault Evidence, and the Supreme Court was correct to reject that complaint.

Tribunal

16 It is common ground that the Tribunal's reasons did not expressly refer to the Awami League Assault Evidence. However, the Tribunal did refer in its decision record to the appellant's evidence concerning his own treatment by the Awami League.

17 In relation to events before the 2008 election, the Tribunal accepted that the appellant had been physically beaten in altercations between BNP supporters and Awami League supporters.

18 In relation to events after the 2008 election, and the cessation of the appellant's involvement with the BNP, the Tribunal acknowledged that there had been many instances of harassment by the Awami League. On the appellant's account, he had been approached and threatened by the Awami League up to 500 times over a period of approximately five years, from early 2009 to the end of 2013.

19 However, the Tribunal observed that the appellant had given no evidence of any actual harm he suffered between 2009 and 2013. That being so, the Tribunal put to the appellant that the Awami League clearly did not intend to harm him or they would have done so on one of their many interactions during this period of time. Nonetheless, the appellant maintained that he had developed a “deep-rooted fear” of being harmed.

20 Moreover, the Tribunal accepted that groups who were perceived as being associated with the BNP or the Awami League engaged in antagonistic behaviour towards their political opposites. Indeed, before...