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[2017] HCA 56
appellant. Appeal allowed. The order made by the Supreme Court of Nauru on 7 February 2017 was set aside. The matter was remitted to the Supreme Court of Nauru, to a judge other than Judge Khan, for...
The High Court allowed the appeal because the Nauru Supreme Court delivered judgment without deciding the appellant's recently filed motion to bring back two grounds of appeal. The Court held that this left an important part of his case unheard and that it was not for the High Court to conduct that missing hearing itself. The High Court could not decide the grounds about the constitutionality of detention because the appeal rules excluded matters involving the interpretation or effect of Nauru's Constitution. It rejected the separate arguments about generalised violence and the transfer interview form. The case was sent back to a different Supreme Court judge for reconsideration.
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2,635 words · generated 04/10/2026
DWN042 was a Sunni Muslim of Pashtun ethnicity from Pakistan. He arrived by boat at Christmas Island in August 2013 and was transferred to Nauru the following month under an arrangement between Australia and Nauru. He applied for refugee status under the Refugees Convention Act 2012 (Nr). The Secretary rejected the application, including the claim for complementary protection, and the Refugee Status Review Tribunal affirmed that decision on 29 December 2014 ([1]–[3]).
No linked legislation citations have been extracted yet.
The Tribunal rejected the appellant's account that he had been targeted for extortion by the Taliban. It identified what it considered flaws and inconsistencies in his narrative and found no reasonable possibility that he would be targeted in the future by the Taliban or opportunistic criminals ([3]). Those were the Tribunal's findings. The High Court's task was not to decide the protection claim afresh.
The appellant appealed to the Supreme Court of Nauru. He was initially unrepresented and obtained pro bono representation only on the day before the hearing. His amended notice of appeal raised four grounds, including that his detention had been unconstitutional, that the Tribunal had failed to address a complementary protection claim, and that the Tribunal had improperly relied on an unsigned and unsworn transfer interview form ([4]).
At the hearing, the primary judge struck out the first two grounds and refused an adjournment. The judge's later reasons relied on the view that those grounds involved the Constitution of Nauru and on the need for speedy resolution of refugee status claims ([5]–[6]). The respondent later accepted before the High Court that the primary judge's reasoning for striking out the grounds was plainly wrong, but did not agree that the appellant could simply reopen them ([7]–[8]).
The key procedural event occurred on 6 February 2017. After learning that judgment would be handed down the next day, the appellant's solicitors sought to appear by telephone and filed a notice of motion seeking to reinstate grounds 1 and 2 and reopen the appeal so those grounds could be amended. They sought a substantive hearing of the motion at a date to be fixed ([9]–[10]). The Registrar said the request was late but indicated that an adjournment would be recommended ([11]). The next morning, the parties were told that telephone appearances were not favoured ([12]).
The appellant did not attend the judgment hand-down because of ill health. A solicitor attended only to take judgment and did not mention the motion. The primary judge delivered judgment on the two remaining grounds, dismissing them, but did not address the motion at all ([13]–[14]).
The High Court allowed the appeal on the ground that the motion had not been considered. It set aside the Supreme Court's order and remitted the matter to a judge other than Judge Khan for reconsideration according to law ([36]). The appeal was therefore successful on a procedural ground, not on a final determination that the appellant qualified for refugee status or complementary protection.
The central issue was whether the primary judge could be treated as having dealt with, or as being entitled to disregard, the notice of motion. The respondent argued that the motion could be treated as abandoned. The High Court rejected that argument in light of the timing and surrounding communications. The motion had been filed only the day before judgment. The Registrar had indicated that an adjournment would be recommended, and the primary judge had been informed that the appellant's solicitors and counsel could not appear ([18]).
The High Court described the omission as a failure to deal with an important part of the appellant's case ([17]). The appellant's case on appeal was framed as denial of procedural fairness. The High Court accepted that the failure involved, at least, such a denial ([17]).
The respondent also argued that the High Court could cure the problem by deciding the motion itself and dismissing it. That argument raised both the proper function of an appeal and the restriction on appeals involving the interpretation or effect of Nauru's Constitution ([19]). The Court rejected it. It said that the approach associated with Stead v State Government Insurance Commission, concerning whether a properly conducted trial could possibly have produced a different result, did not apply to a party who had received no hearing at all on the motion ([20]–[21]).
The distinction matters. In Stead, the cited concern was a denial of natural justice during a trial where a party had lost the chance to make submissions on an issue of fact. Here, the motion itself had not been heard. The High Court said it was not its role to supply the hearing missing from the Supreme Court process or to decide what order that court should have made ([21]). It therefore upheld the procedural fairness ground without deciding whether the motion to reinstate the grounds should ultimately succeed ([22]).
The remaining grounds had different outcomes. The constitutional detention grounds were incompetent because deciding them would involve the interpretation or effect of Nauru's Constitution, which was excluded by Art 2(a) of the Agreement and s 45(a) of the Appeals Act 1972 (Nr). The respondent's concession that the primary judge's reasons were wrong did not allow the High Court to bypass that limit, because considering the concession would itself require the prohibited constitutional inquiry ([23]).
The complementary protection ground failed on the record. The High Court accepted that s 4(2) of the Refugees Act required Nauru not to return a person where doing so would breach its international obligations, and noted Article 6 of the ICCPR's prohibition on arbitrary deprivation of life ([24]). But it found that the appellant's case before the Tribunal was about targeted violence by the Taliban, not an independent risk from generalised violence ([26]–[29]). The Court concluded that this ground should be dismissed ([30]).
The transfer interview ground also failed. The Court gave three independent reasons: the appellant had not actually disowned the form; the appellant or his representative had access to it at the Tribunal hearing and did not object to its use, instead asking the Tribunal to exercise caution; and the relevant inconsistency in the interview form was also present in the appellant's oral evidence ([32]–[34]). It dismissed that ground at [35].
The judgment does not set out a comprehensive account of the law before this case or announce a broad new test for procedural fairness. Its contribution is more confined: it applies existing procedural fairness principles to the particular situation where a court has delivered final judgment without considering a filed motion seeking substantive relief.
The Court referred to Bhardwaj and Dranichnikov in connection with the appellant's contention that the failure to consider the motion involved a failure to exercise jurisdiction, while noting that the appellant relied on procedural fairness rather than advancing that jurisdictional submission ([17] and footnotes 8–9). The Court resolved the appeal on the procedural fairness ground. It did not need to decide whether the omission also amounted to a failure to exercise jurisdiction.
The judgment's most important clarification concerns the limits of the Stead approach. A court should not assume that an appeal can be dismissed as harmless because the same result would necessarily have followed, where the complaint is that a motion received no hearing at all. In this case, the High Court treated the entitlement to a hearing on the motion as distinct from the likely merits of that motion ([20]–[21]). It did not decide the motion's merits.
The judgment also reaffirms the boundary on the High Court's jurisdiction in appeals from Nauru. Article 1(A)(b)(i) provided the route for an appeal as of right in this matter, but Article 2(a) excluded appeals involving interpretation or effect of the Constitution of Nauru. The Court treated that exclusion as controlling even though the respondent conceded that the primary judge's reasoning on the constitutional grounds was wrong ([15], [23]). The jurisdictional limit therefore could not be avoided by framing the issue as acceptance of a concession.
As to the complementary protection issue, the Court applied a fair and reasonable construction of the Tribunal record. It warned against over-zealous scrutiny of reasons and against searching a hearing record for grounds that were not fairly raised for decision ([25]). It then applied that approach to the appellant's written and oral case ([26]–[29]). The judgment does not establish a new substantive test for complementary protection based on generalised violence. Instead, it decides that this particular claim was not raised before the Tribunal in the form later advanced.
No statutory amendment or later change in law is identified in the judgment. The “after” position discernible from this source is therefore limited to the High Court's application of these procedural and jurisdictional principles to this appeal, and the remitter for reconsideration.
At [17], the Court said the failure to consider the motion “involved a failure to deal with an important part of the appellant's case.” In plain English, the motion was not a peripheral administrative request. It sought to restore grounds that had been struck out and to reopen the appeal, so the judge needed to address it.
At [18], the Court rejected the idea that the motion had been abandoned. It focused on the fact that it had been filed the previous day, that the Registrar had indicated an adjournment would be recommended, and that the judge knew the appellant's legal team could not appear. In plain English, the surrounding events did not support treating silence as a deliberate withdrawal.
At [21], the Court said: “It is not for this Court to attempt to provide the hearing that the appellant has not had.” This is the key explanation for remitter. The High Court did not decide whether reinstatement or amendment should be granted. It held that the appropriate hearing belonged in the Supreme Court.
At [23], the Court held that the detention grounds were incompetent because they involved the interpretation or effect of the Constitution of Nauru. In plain English, the High Court's appeal jurisdiction had a defined limit, and the constitutional character of those grounds placed them outside it.
At [25], the Court said that a hearing record should not be scrutinised to find grounds that were not, on a fair and reasonable construction, raised for decision. In plain English, later characterisation of an argument cannot substitute for what the Tribunal was actually asked to decide.
At [32]–[34], the Court identified three reasons why reliance on the transfer interview form did not involve procedural unfairness. In plain English, the form had not been genuinely disowned, the appellant had an opportunity to address it at the hearing, and the inconsistency drawn from it was also reflected in his oral evidence.
The procedural fairness reasoning is most directly engaged where a court has a filed motion before it that seeks substantive relief, and then gives final judgment without deciding that motion. The features relevant to this case included that the motion was filed the day before judgment, the party's representatives were unavailable to appear, the court had been told of that unavailability, and the Registrar had indicated that an adjournment would be recommended ([10]–[13], [18]).
The decision does not say that every late motion must be adjourned or that every failure to mention a motion necessarily invalidates a judgment. Its reasoning is tied to the entire sequence of events and to the motion's importance to the appellant's case. A lawyer considering analogy would need to compare the motion's substance, when and how it was filed, communications from the court, the party's ability to appear, and whether the court expressly or implicitly disposed of it.
The jurisdictional reasoning is triggered where an appeal from the Supreme Court of Nauru would require the High Court to interpret or consider the effect of Nauru's Constitution. The judgment shows that a concession about the lower court's error does not remove that obstacle if deciding the ground still requires the excluded constitutional inquiry ([23]).
The record-construction reasoning may be relevant where a party argues that an administrative decision-maker failed to address a claim, but the original hearing record is contested. The High Court examined the appellant's written materials, oral evidence, and the questions asked by the Tribunal to determine what claim had actually been put ([26]–[29]). It did not treat a broad summary paragraph as establishing a separate claim when the surrounding submissions framed the risk as targeted Taliban violence.
The transfer interview discussion concerns a record that was unsigned and unsworn, but the Court did not treat those characteristics alone as decisive. It looked at the appellant's alleged disavowal, access to the form, the opportunity to object, the nature of the objection made, and whether the relevant information was consistent with other evidence ([31]–[34]). The judgment therefore illustrates a fact-sensitive procedural fairness assessment rather than a general rule that such forms may always be used.
The supplied judgment does not provide any decisions after 13 December 2017, and it does not report how later courts treated DWN042. Accordingly, later application, approval, distinction, or criticism cannot be verified from this source alone.
The judgment itself identifies several authorities relevant to its reasoning. It relies on BRF038 v The Republic of Nauru [2017] HCA 44 to explain the Supreme Court of Nauru's original jurisdiction on an “appeal” under s 43(1) of the Refugees Act and the route to an appeal as of right to the High Court ([15]). It discusses Stead v State Government Insurance Commission when distinguishing a hearing in which a party missed an opportunity to make submissions from a case in which a party received no hearing on the relevant motion ([20]–[21]).
The Court also cites Bhardwaj and Dranichnikov in recording legal authorities relevant to the distinction between failure to exercise jurisdiction and procedural unfairness ([17] and footnotes 8–9). It refers to Wu Shan Liang for the caution against over-zealous scrutiny of administrative reasons, applying a similar caution to the hearing record ([25]). These are authorities used within DWN042; they are not evidence of how later courts have treated DWN042 itself.
For research purposes, any statement that DWN042 has since been followed, distinguished, or otherwise treated would require later judgments or a reliable case-citator source not included in the material supplied here.
The High Court did not decide whether the appellant's motion to reinstate grounds 1 and 2 should be granted. It held only that the motion needed to be considered through a procedurally fair process. The substantive fate of those grounds was left for the Supreme Court on remitter ([21]–[22], [36]).
The Court also did not decide whether the appellant's detention was unconstitutional. It held that the related grounds were outside the High Court's appeal jurisdiction because of the constitutional subject matter ([23]). The reasons do not determine the underlying constitutional question.
The decision did not resolve the appellant's refugee or complementary protection claims. The Tribunal's findings remained the starting point, but the remitter concerned the Supreme Court proceeding and the motion. Nor did the High Court decide whether a properly raised claim based on generalised violence would satisfy the Refugees Act or Article 6 of the ICCPR. It held that this distinct claim had not been presented to the Tribunal on a fair and reasonable construction of the record ([24]–[30]).
Finally, the judgment gives no later history of the remitted proceeding. It does not say what occurred before the different Supreme Court judge, whether the motion was allowed, or how the appeal was ultimately resolved. Those matters remain unanswered by the supplied judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
KEANE, NETTLE AND EDELMAN JJ
DWN042 APPELLANT
AND
THE REPUBLIC OF NAURU RESPONDENT
DWN042 v The Republic of Nauru
[2017] HCA 56
13 December 2017
M20/2017
ORDER
Appeal allowed.
Set aside the order made by the Supreme Court of Nauru on 7 February 2017.
Remit the matter to the Supreme Court of Nauru, to a judge other than Judge Khan, for reconsideration according to law.
The respondent pay the appellant's costs of the appeal to this Court.
On appeal from the Supreme Court of Nauru
Representation
P R D Gray QC with M L L Albert for the appellant (instructed by Maddocks)
G R Kennett SC with A Aleksov for the respondent (instructed by Republic of Nauru)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
DWN042 v The Republic of Nauru
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Supreme Court of Nauru failed to consider notice of motion – Whether failure to consider notice of motion involved denial of procedural fairness – Whether primary judge entitled to treat notice of motion as abandoned – Whether appeal could be dismissed because proper hearing could not have produced different result – Whether appeal incompetent because it would require consideration of interpretation and effect of Constitution of Nauru – Whether failure to consider complementary protection claim – Whether reliance on unsigned and unsworn transfer interview form constituted breach of requirements of procedural fairness.
Words and phrases – "appeal", "arbitrary deprivation of life", "assurances to the court", "complementary protection", "denial of procedural fairness", "extortion by the Taliban", "interpretation or effect of the Constitution of Nauru", "notice of motion", "original jurisdiction", "transfer interview form", "unconstitutional nature of detention".
Appeals Act 1972 (Nr), ss 44(a), 44(b), 45(a).
Nauru (High Court Appeals) Act 1976 (Cth), ss 5, 8.
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 (1976), Art 1(A)(b)(i), Art 1(A)(b)(ii), Art 2(a).
Refugees Convention Act 2012 (Nr), ss 4(2), 5, 43(1).
International Covenant on Civil and Political Rights (1966), Art 6.
Background
The appellant's application for refugee status
On 31 July 2014, after the Secretary determined that the appellant was not a refugee and was not owed complementary protection under the Refugees Act, the appellant applied to the Tribunal for a review of the Secretary's determination. The Tribunal invited the appellant to appear before it at a hearing on 25 September 2014. Prior to the Tribunal hearing, the appellant's solicitors provided the Tribunal with materials, including lengthy written submissions and a statement from the appellant. The appellant attended the Tribunal hearing on 25 September 2014.
On 29 December 2014, the Tribunal affirmed the decision of the Secretary that the appellant was not a refugee and was not owed complementary protection under the Refugees Act. The Tribunal concluded that there were many flaws and inconsistencies in the appellant's narrative which, taken together, led the Tribunal to reject the appellant's evidence that he had been targeted for extortion by the Taliban. The Tribunal did not accept that there was any reasonable possibility that the appellant would be targeted in the future by the Taliban or opportunistic criminals who targeted wealthy businessmen.
The circumstances of the appeal to the Supreme Court of Nauru
"1. The Tribunal acted in a way that was in breach of the principles of natural justice, contrary to s 22(b) of the [Refugees] Act, by conducting its hearing when and at the place where the [a]ppellant was unlawfully detained in breach of s 5 of the Constitution of Nauru.
…
The Tribunal erred in law in determining that the appellant is not owed complementary protection in that the Tribunal failed to respond to the appellant's claim that returning him to Pakistan would breach Nauru's international obligations due to the risk of arbitrary deprivation of life.
The Tribunal erred by relying on the transfer interview form contrary to s 22(b) [of the Refugees Act] in circumstances where it was unsigned and unsworn, was not made available to his representative when he prepared his statement of claims and was expressly disowned as a record of his claims."
At the appeal hearing, counsel for the respondent submitted that he did not have instructions to make submissions in relation to grounds 1 and 2 of the appellant's amended notice of appeal but he sought to be heard on a motion to strike out those grounds. The primary judge, Judge Khan, struck out grounds 1 and 2 of the amended notice of appeal with reasons to be given later. His Honour then refused the appellant's application for an adjournment. Arguments proceeded on the remaining grounds of the amended notice of appeal. Judgment was reserved on those grounds.
On 20 May 2016, the primary judge gave his reasons for striking out grounds 1 and 2. His Honour held that the grounds should be struck out because the Supreme Court of Nauru had no jurisdiction to consider them, apparently because (i) the two grounds involved the interpretation and effect of the Constitution of Nauru so that under s 45(a) of the Appeals Act 1972 (Nr) there could be no appeal to the High Court of Australia from his decision on these grounds, and (ii) the Refugees Act was "crafted in a way to provide speedy resolution of ... refugee status"1.
As the strike out decision was interlocutory, the appellant had no automatic right of appeal to this Court2. He sought leave to appeal to this Court from the strike out decision of the primary judge. At the leave hearing, on 16 December 2016, the respondent accepted that the primary judge's reasoning was "plainly wrong"3. Senior counsel for the respondent said that the respondent would not rely on Judge Khan's reasoning in opposition to any application by the appellant to reopen the present case on grounds 1 and 2. However, senior counsel for the respondent also said that any application to reopen in order to reintroduce the grounds that had been struck out would likely be resisted by the respondent, although for different reasons from those given by the primary judge. In light of the assurance given, and given the interlocutory nature of the application, this Court refused leave to appeal.
"I have referred the matter to the Judge for his decision. It is rather late not only in time but also on the day to be making such a request but I had suggested that the matter be adjourned to another date."
At 10.05am on 7 February 2017, less than an hour before the judgment was delivered, the Registrar emailed the parties, saying "I have discussed with the Judge and we are not in favour of phone-ins at all". Although the appellant's solicitors were precluded from appearing at the handing down of the primary judge's judgment, they would have expected, based upon the practical and reasonable approach of the Registrar, that the notice of motion would be adjourned to be heard on another date.
The appellant was unable to attend the handing down of the judgment due to ill health. Nor was the appellant represented, except by the solicitor, Ms Keane, who had been instructed by the appellant's Melbourne solicitors to appear for the sole purpose of physically taking judgment. Judgment was handed down. Ms Keane made no mention of the motion to reopen grounds 1 and 2 or of the possibility of any adjournment.
The judgment of the primary judge
The appeal to this Court
"An appeal is not to lie to the High Court of Australia from the Supreme Court of Nauru … where the appeal involves the interpretation or effect of the Constitution of Nauru".
The failure to consider the notice of motion
This appeal proceeded on the assumed basis that the notice of motion was no longer extant. The failure by the primary judge to consider the appellant's notice of motion involved a failure to deal with an important part of the appellant's case. The appellant only put his case on the basis of a failure to afford procedural fairness and did not submit that the failure to deal with the notice of motion involved a failure to exercise jurisdiction8. As the appellant submitted, the failure by the primary judge involved, at least, a failure to accord procedural fairness9.
The respondent sought to resist this conclusion on two grounds. First, it was submitted that the primary judge was entitled to treat the notice of motion as having been abandoned. That submission should not be accepted. The notice of motion had only been filed the previous day. The Registrar, who had joined with the primary judge in advising that they were not in favour of telephone attendances, had notified the appellant's solicitors that it would be recommended to the judge that the hearing of the notice of motion be adjourned. And, as the appellant's solicitors were aware, the primary judge had been notified that the appellant's solicitors and counsel were unavailable to appear. Ms Keane was present only to take judgment.
Secondly, the respondent submitted that the first ground of appeal was incompetent because (i) the respondent would seek to meet any allegation of procedural unfairness by failing to consider the notice of motion by submitting that this Court should, in giving "such judgment ... as ought to have been given" in the Supreme Court10, dismiss the notice of motion, and (ii) the submissions that the respondent would make to this effect would involve matters concerning "the interpretation or effect of the Constitution of Nauru", which this Court is precluded from hearing under Art 2(a) of the Agreement forming the Schedule to the Nauru (High Court Appeals) Act and s 45(a) of the Appeals Act.
This submission should not be accepted. The respondent accepted that the "stringency" of the test in Stead v State Government Insurance Commission11 did not apply to the circumstances of this appeal. That case involved a denial of procedural fairness at trial where a party was deprived of the chance to make submissions on an issue of fact. This Court held that12:
"All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result."
The respondent was correct not to submit that this appeal could be dismissed on the basis that a properly conducted hearing could not possibly have produced a different result. That principle does not apply where, as was the case with the appellant's notice of motion, a party receives no hearing at all. The appellant was, and is, entitled to a hearing in the Supreme Court. It is not for this Court to attempt to provide the hearing that the appellant has not had, or to attempt to give any judgment such as might be thought to have been appropriate in the Supreme Court. There is, therefore, no basis upon which this ground of appeal requires consideration of the interpretation or effect of the Constitution of Nauru.
This ground of appeal should be upheld.
The alleged unconstitutional nature of the appellant's detention
The alleged failure to consider an aspect of the appellant's case
Section 4(2) of the Refugees Act requires that the Republic not return a person where doing so would be in breach of its international obligations. Article 6 of the International Covenant on Civil and Political Rights (1966), which the Republic ratified in 2001, requires that "[n]o one shall be arbitrarily deprived of his life". The Tribunal considered, in detail, the appellant's claim that he feared that he would be arbitrarily deprived of his life at the hands of the Taliban in connection with threats and extortion by the Taliban. The Tribunal accepted that the Taliban had been involved in human rights abuses and that opportunistic criminals had targeted businessmen. But the Tribunal rejected the appellant's evidence that he had been targeted by the Taliban or by opportunistic criminals in the past, including rejecting the appellant's evidence concerning an incident when the appellant said he had refused to pay extortion money demanded by the Taliban. The Tribunal concluded that there was a less than reasonable possibility of this happening in the reasonably foreseeable future. In the appellant's fourth ground of appeal he reiterated before this Court his submission before the primary judge that the Tribunal failed to consider that there was a reasonable possibility that he would be subject to an arbitrary deprivation of life on return to Pakistan as a result of "generalised violence" rather than being targeted for violence by the Taliban.
It has been said in this Court that a decision maker's reasons should not be "scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed"13. For the same reasons, the record of a hearing should not be scrutinised in an attempt to elucidate grounds which were not, on a fair and reasonable construction of the record, raised for decision.
On a fair and reasonable construction of the record, the submission concerning generalised violence that the appellant made in the Supreme Court of Nauru, and now makes in this Court, was not made before the Tribunal. The appellant's signed statement before the Tribunal contained headings "Who I think may harm/mistreat me in Pakistan" and "Why I will be harmed in Pakistan". The appellant's evidence under these headings was that the Taliban will kill him if he returns because he refused to pay money to the Taliban that they had demanded. At no point in the appellant's submissions, which were prepared by his lawyers, was it suggested that the appellant feared arbitrary deprivation of his life as a consequence of generalised violence, independent of his claims concerning the Taliban. Indeed, at one point in the appellant's written submissions to the Tribunal he said of the situation of violence that "[i]t is not local people and mere criminals who do these things. It is only the Taliban who are responsible."
"It is our submission that Nauru's non-refoulement obligations prohibit the removal of [the appellant] to circumstances where he would face a reasonable possibility of arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment. It is our submission that [the appellant] would face harm of this kind if he were removed to Pakistan."
"i. The Taliban believe that [the appellant] opposes their political views because he has refused to pay them the money they demanded;
ii. [The appellant] opposes the Taliban's ideals and objectives. As he states at paragraph [16] of his statement of claims dated 8 December 2014 'I did not want to give them money because they would only use it for bad things';
iii. [The appellant] will be further perceived to oppose the Taliban because he is a member of the Kokikhel tribe, whose elders in April 2014 refused the Taliban passage through their lands and refused to join or support the Taliban".
The unsigned and unsworn transfer interview form
On 28 November 2013, prior to his application for refugee status, the appellant attended a transfer interview. As part of the transfer interview, a form was completed. The appellant's fifth ground of appeal was that the Supreme Court should have found that the Tribunal erred by relying upon the transfer interview. The appellant submitted that it was not open to the Tribunal to rely upon the transfer interview form because it was unsigned and unsworn, was not made available to the appellant's representative when the representative prepared the appellant's statement of claims, and was expressly disowned as a record of the appellant's claims.
Contrary to the appellant's submissions, there are three independent reasons why there was no procedural unfairness occasioned by the Tribunal's reliance upon the transfer interview form. First, the transfer interview form was not, and could not be, "disowned" by the appellant. The passage in a statement from the appellant upon which he relied asserted only that his information was "only a summary" and that he had not been told that the information that he provided would be used for the purposes of assessing his claims for protection. This statement by the appellant does not repudiate the transfer interview form. It is also inconsistent with the statement on the transfer interview form that the appellant understood the preliminary matters that were explained to him, including a statement that the information the appellant gave "will also be read and used by the people who will be assessing your claim for refugee status". The appellant consented to the interview and he consented to it being recorded.
Secondly, although the appellant did not have a copy of the transfer interview form in December 2013, he or his representative had a copy of it at the time of the Tribunal hearing when reference was made to it by the appellant's representative. Neither the appellant nor his representative raised any objections with the Tribunal about it relying upon the content of the transfer interview form. Rather, the appellant's representative submitted that the Tribunal should "exercise caution" before relying upon the transfer interview "because of the pressurised situation that those interviews are conducted in".
Thirdly, the matters in the transfer interview form upon which the Tribunal relied were consistent with evidence that the appellant gave before the Tribunal. The Tribunal relied upon statements by the appellant during his transfer interview concerning the first threat by the Taliban, which he said occurred in his home on 20 February 2013. This date was inconsistent with the earlier date when the appellant was issued with a passport as a consequence, he had said, of threats from the Taliban. Although the inconsistency was one of the reasons why the Tribunal formed adverse conclusions about the appellant's credibility, the appellant's oral evidence before the Tribunal was to the same inconsistent effect. In his oral evidence he variously gave dates of 25 February and late February.
Conclusion
(1) Appeal allowed.
(2) Set aside the order made by the Supreme Court of Nauru on 7 February 2017.
(3) Remit the matter to the Supreme Court of Nauru, to a judge other than Judge Khan, for reconsideration according to law.
(4) The respondent pay the appellant's costs of the appeal to this Court.
DWN042 v The Republic [2016] NRSC 6 at [25]. ↩
Appeals Act 1972 (Nr), s 44(b); Nauru (High Court Appeals) Act 1976 (Cth), Schedule, Art 1(A)(b)(ii). ↩
DWN042 v The Republic of Nauru [2016] HCATrans 310. ↩
DWN042 v The Republic [2017] NRSC 4 at [26]. ↩
DWN042 v The Republic [2017] NRSC 4 at [32]. ↩
[2017] HCA 44 at [35]-[41]. ↩
See also Appeals Act 1972 (Nr), s 45(a). ↩
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 612 [44], 649 [163]; [2002] HCA 11; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1093 [32]; 197 ALR 389 at 395; [2003] HCA 26. ↩
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24]; 197 ALR 389 at 394. ↩
Nauru (High Court Appeals) Act 1976 (Cth), s 8. ↩
(1986) 161 CLR 141; [1986] HCA 54. ↩
Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. ↩
DWN042
The Republic of Nauru [2017] HCA 56
(2002) 209 CLR 597
(2003) 77 ALJR 1088
(1986) 161 CLR 141
(1996) 185 CLR 259
Appeal allowed. The order made by the Supreme Court of Nauru on 7 February 2017 was set aside. The matter was remitted to the Supreme Court of Nauru, to a judge other than Judge Khan, for reconsideration according to law. The respondent was ordered to pay the appellant's costs of the appeal.
While the primary judge's decision concerning grounds 3 and 4 remained reserved, correspondence was exchanged between the solicitors for the appellant and the solicitor for the respondent. On 22 December 2016, the solicitors for the appellant referred to the assurances given by the respondent at the leave hearing and sought consent from the respondent to orders permitting the appellant to reopen his appeal in respect of grounds 1 and 2 and to have leave to file any further amended notice of appeal. The appellant's solicitors did not provide the respondent with a proposed amended notice of appeal or a minute of the unspecified amendments to the notice of appeal. On 3 January 2017, the solicitor for the respondent replied, refusing to consent to the proposed orders, and setting out the assurances that had been given, including the comments that the respondent would likely resist any application to reopen. On 1 February 2017, the appellant's solicitors replied, persisting with the suggestion that the respondent should consent to orders to reopen grounds 1 and 2 of the appeal. On 6 February 2017, the respondent's solicitor replied, reiterating that the respondent's assurances at the leave hearing did not extend to consenting to an application to reopen grounds 1 and 2.
On Friday, 3 February 2017, while this correspondence was ongoing, the solicitor for the respondent was advised that the primary judge would hand down his judgment on 7 February 2017. Late that afternoon, the solicitor for the respondent emailed the appellant's counsel advising him of this. Perhaps realising that counsel for the appellant was based in Melbourne and may not be able to travel to the Republic at short notice, the solicitor for the respondent helpfully suggested that counsel may wish to ask Ms Keane, a solicitor working in the Republic as a Claims Assistance Provider for asylum seekers, who was copied in to the email, "to mention an appearance on behalf of the appellant". On Monday, 6 February 2017, the solicitor for the respondent then informed the solicitors for the appellant that the primary judge would be handing down his judgment at 11am the next day. The solicitor for the respondent reiterated that the respondent would be represented at the hearing and that the respondent would not object if the appellant's solicitors contacted Ms Keane "with respect to an appearance on behalf of the appellant".
On 6 February 2017, the same day that the appellant's solicitors were notified that judgment would be handed down the next day, they wrote to the Supreme Court of Nauru in two respects: (i) seeking leave to appear the next day by telephone, and (ii) filing a notice of motion to reinstate grounds 1 and 2, and to reopen the appeal to further amend those grounds. The appellant sought a substantive hearing of the notice of motion at a date to be fixed. The email and attachments were copied to the respondent's solicitor and the Associate to the primary judge.
At 4.22pm on 6 February 2017, the Registrar replied as follows:
Nor at any stage during the oral hearing did the appellant make this allegation concerning generalised violence independent of the Taliban. This was despite being asked by the Tribunal on several occasions whether there was any other claim that he was making other than that he had been targeted by the Taliban.
The appellant submitted in this Court that the submission about generalised violence was most clearly put to the Tribunal in a paragraph of his submissions where, under the heading "Extent of Nauru's International Non-Refoulement Obligations" and the sub-heading "Physical Violence", the appellant said:
This ground of appeal must be dismissed.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. ↩