TTY167 v Republic of Nauru

• Jurisdiction: Australia Federal only
• Judge: Gageler,Nettle,Edelman JJ
• Judgment Date: 05 December 2018
• Neutral Citation: [2018] HCA 61
• Docket Number: S46/2018
• Court: High Court
• Date: 05 December 2018

[2018] HCA 61

HIGH COURT OF AUSTRALIA

Gageler, Nettle and Edelman JJ

S46/2018

TTY167

Appellant

and

Republic of Nauru

Respondent

Representation

W G Gilbert SC with M L L Albert and J A Barrington for the appellant (instructed by Clothier Anderson Immigration Lawyers)

G R Kennett SC with P M Knowles for the respondent (instructed by Republic of Nauru)

Interpretation Act 2011 (Nr), ss 100, 101.

Refugees Convention Act 2012 (Nr), ss 40(3), 41(1).

Immigration — Refugees — Nauru — Appeal as of right from Supreme Court of Nauru — Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection — Where appellant applied to Refugee Status Review Tribunal for merits review of Secretary's determination — Where Tribunal sent letter to “Team Leader” of claims assistance provider inviting appellant to attend hearing — Where appellant and his representatives failed to attend Tribunal hearing — Where Tribunal affirmed Secretary's determination in appellant's absence — Where Supreme Court affirmed Tribunal's decision — Whether invitation to attend Tribunal hearing given to appellant — Whether legally unreasonable for Tribunal to decide matter without taking further action to allow or enable appellant to appear.

Words and phrases — “authorised representative”, “given”, “invitation to appear”, “jurisdictional requirement”, “legally unreasonable”.

ORDER

• 1. The time fixed for the filing of the notice of appeal is enlarged to 12 March 2018.

• 2. Appeal allowed.

• 3. Set aside the orders made by the Supreme Court of Nauru on 20 February 2018 and, in their place, order that:

  • (a) the decision of the Refugee Status Review Tribunal dated 3 July 2016 be quashed; and

  • (b) the matter be remitted to the Refugee Status Review Tribunal for reconsideration according to law.

• 4. The respondent pay the appellant's costs of this appeal.

Gageler, Nettle and Edelman JJ.

Introduction

1 This appeal is from a decision of the Supreme Court of Nauru. The appeal was brought six days out of time but the notice of appeal was filed prior to the termination of the Agreement between the Government of Australia and the Government of the Republic of Nauru relating to appeals to the High Court of Australia from the Supreme Court of Nauru. An extension of time in which to file the notice of appeal was not opposed. The extension should be granted. For the reasons given in The Republic of Nauru v WET0401, this Court has jurisdiction to hear the appeal.

2 The Supreme Court of Nauru upheld a decision of the Refugee Status Review Tribunal (“the Tribunal”), which had concluded that the appellant was neither a refugee nor owed complementary protection. There are two grounds of appeal in this Court. The first concerns whether an invitation to appear before the Tribunal was given to the appellant and, if not, whether that failure meant that the Tribunal had no jurisdiction. The second concerns whether it was legally unreasonable for the Tribunal not to adjourn the hearing when neither the appellant nor his lawyers attended.

3 For the reasons below, the first ground of appeal should be dismissed. In summary, the Tribunal's jurisdiction required that an invitation be given to the appellant to attend the hearing. That invitation could have been given to the appellant or to his authorised representative. Since this ground of appeal was not raised in the Supreme Court, it is not possible to know whether the person to whom the Tribunal gave the invitation was the authorised representative of the appellant. It is too late to raise this point on appeal to this Court.

4 However, the appeal should be allowed on the second ground. The failure by the Tribunal to adjourn the hearing was legally unreasonable in the exceptional circumstances of this case, where: (i) the appellant and his lawyers had informed the Tribunal that the appellant had mental health issues, which should have raised a reasonable apprehension that the appellant did not attend for health reasons; (ii) the absence of the appellant and his lawyers from the hearing was surprising because the appellant had been strongly engaged with his application, he had informed the Tribunal that he would attend and his lawyers had informed the Tribunal only two days before the hearing of their expectation that he would attend; (iii) the personal attendance of the appellant was a matter of

considerable importance to the appellant and was important for matters about which the Tribunal was concerned; and (iv) it would have been easy for the Tribunal to contact the appellant's lawyers.

Background

5 The appellant is a citizen of Bangladesh. On 20 September 2014, he applied to the Secretary of the Department of Justice and Border Control (“the Secretary”) to be recognised as a refugee, or a person owed complementary protection, under s 6 of the Refugees Convention Act 2012 (Nr). The appellant was assisted in preparing his application by a representative of a Nauru claims assistance provider called CAPS. In the statement attached to his application he explained that the standard of education in Bangladesh was poor, and that he was illiterate and struggled even to write his own name.

6 On the day of the appellant's scheduled refugee status determination (“RSD”) interview, a representative of CAPS sent an email to the RSD officer explaining that the appellant was unwell but was “eager to attend” an interview. The interview was rescheduled to and took place on 20 October 2014.

7 The appellant claimed that he had been a member of the student wing of the Jamaat-e-Islami (“JeI”) political party, and that his father was a local JeI leader. He said that after the Awami League formed government in 2009 they had begun oppressing the supporters of JeI. He claimed that his home had been raided and vandalised by members of the Awami League, and that his mother and siblings had been beaten. He said that he had amended his religious practices to avoid identification as a JeI supporter, but that he had attended a protest in 2013 at which he and his father were beaten, and his brother went missing and is feared to have been killed.

8 On 9 October 2015, the Secretary refused the application. The Secretary did not accept that the appellant was anything more than a low-level supporter of JeI, or that the appellant had any profile that would have been of interest to the Awami League. He did not accept that the appellant's father was in a leadership position or a position of influence in JeI. He did not accept the appellant's evidence about the alleged raid on his home. Nor did the Secretary accept that the appellant had taken part in the protest.

9 On 17 December 2015, two days after being notified of the Secretary's determination, the appellant applied to the Tribunal under s 31 of the Refugees Convention Act for merits review of the Secretary's determination.

10 On 15 April 2016, the Tribunal invited the appellant to appear before it. The invitation letter was not addressed to the appellant. It was addressed to a woman described as a “Team Leader” at CAPS. The letter informed the Team Leader of the appellant's application to the Tribunal as well as the date and time of the hearing. She was asked to inform the Tribunal in writing of any person from whom the appellant would like the Tribunal to take oral evidence. The letter concluded by informing her that, if the appellant did not appear before the Tribunal on the date and at the time specified, “the Tribunal may make a decision on the review without taking further action to allow the [appellant] to appear”.

11 On 20 April 2016, the appellant provided a statement to the Tribunal. He explained that the information was only a summary of his response to the Secretary's determination. He said that he would “provide further information in relation to my protection claims during my hearing”. He also explained that his mental health had been affected by his fear of returning to Bangladesh and his detention for nearly three years. He described symptoms of deteriorating memory, anxiety and depression, weakness, confusion, and dizziness.

12 On 4 May 2016, the appellant's lawyers sent the Tribunal a 39-page submission in support of the appellant's...