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[2018] HCA 46
respondent. Appeal dismissed with costs.
The High Court dismissed the appeal. It held that the Tribunal was not required to mention every item of evidence in its reasons, and its failure to refer expressly to assaults on other people did not show that it had ignored material evidence. The Tribunal had examined the appellant’s own account of threats and harm. The Court also held that the Tribunal gave him an opportunity to address the issue of his BNP affiliation and claimed formal membership. The appeal was dismissed with costs.
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2,637 words · generated 04/10/2026
ETA067 was a citizen of Bangladesh who had always lived in the same suburb of Dhaka until leaving Bangladesh ([1]). He claimed that he had been involved with and worked for the Bangladesh Nationalist Party (BNP) between 2004 and 2008. He said he had been physically harmed in clashes between BNP and Awami League supporters. He stopped participating in the BNP in 2008, explaining that he lacked time and interest, was dissatisfied with the work and believed the political “anarchy” had become worse ([3]).
No linked legislation citations have been extracted yet.
After he stopped his BNP involvement, ETA067 said Awami League members pressured him to join them. His claim was that he feared persecution because of his actual political opinion, based on support for and involvement with the BNP, and an imputed opinion of opposition to the Awami League ([3]). He applied for refugee recognition in Nauru under s 5 of the Refugees Convention Act 2012 (Nr). The Secretary rejected his refugee and complementary protection claims on 13 March 2015. The Refugee Status Review Tribunal affirmed that decision on 30 September 2015, and the Supreme Court of Nauru affirmed the Tribunal’s decision on 13 November 2017 ([2], [4]).
The Tribunal accepted that ETA067 had been beaten during political altercations before the 2008 election ([17]). It also recorded his account that, between early 2009 and the end of 2013, he had been approached and threatened as many as 500 times. But it noted that he gave no evidence of actual harm during that period, and put to him that the Awami League would have harmed him during one of those many interactions if it intended to do so. He maintained that he had a “deep-rooted fear” ([18]-[19]).
The Tribunal was not satisfied that he had suffered persecution for an imputed political opinion or that there was a real possibility of future persecution for his political opinion. It also considered that any possible harm would be localised to his suburb and limited to local Awami League members or supporters ([4], [22]). The High Court, constituted by Bell, Keane and Gordon JJ, dismissed the appeal with costs on 17 October 2018 ([44]).
The two grounds concerned procedural obligations. First, ETA067 alleged that the Tribunal had ignored evidence of assaults by Awami League supporters against other people who refused to join the party or attend meetings ([11]-[12]). Second, he alleged that he was not given a fair opportunity to address whether he was a formal BNP member and the Tribunal’s reference to information on the BNP website about membership requirements ([29]-[33]).
The first ground turned on what can be inferred from a tribunal’s reasons. The High Court stated that an express reference to evidence is not always necessary to show that it was considered. It is also not the Tribunal’s duty to refer to every item of evidence in its reasons ([13]). The Court distinguished between an omission that may show the Tribunal did not consider evidence material to the applicant’s claim, and an omission concerning evidence that was itself material, including evidence going to an essential or dispositive aspect of the claim ([14]).
The focus was the risk of persecution to ETA067, not whether other people had been assaulted in circumstances that might resemble his ([25]). The Tribunal had considered substantial evidence about his own interactions with the Awami League. It accepted past physical violence during earlier political clashes, and it considered his account of later approaches and threats. Its concern was that he described no actual harm from 2009 to 2013, despite repeated interactions over about five years ([17]-[19], [25]-[26]).
The Court accepted that the evidence about assaults on other people could have explained ETA067’s subjective fear or added some plausibility to his concern. But, in the context of the detailed evidence about his own experiences, that material was not central to the Tribunal’s determination ([26]). The Court therefore found no breach of s 22(b), which required the Tribunal to act according to natural justice and the substantial merits of the case ([9], [27]-[28]). The decision does not establish that evidence about other people is never relevant to an individual refugee claim. Its reasoning was tied to this record and to the evidence the Tribunal had concerning ETA067’s own treatment.
The second ground concerned the statutory hearing obligation. Section 40(1) required the Tribunal to invite an applicant to appear and give evidence and present arguments “relating to the issues arising” in the review ([10]). The Court emphasised that the statutory focus was the issue, rather than each particular item of evidence. It did not require the Tribunal to put every piece of evidence or contention to an applicant ([37]).
The relevant issue was ETA067’s affiliation, or purported affiliation, with the BNP ([38]). The Tribunal questioned him about whether he was a member or supporter, how membership worked, whether his name had been listed and announced, and who had been present. The Tribunal’s reasons recorded that he could not recall details of the listing or announcement ([32]). In the High Court’s view, those questions meant that he was on notice that his claim of membership was in issue and had an opportunity to give evidence and make arguments about it ([39]).
The Tribunal also referred to the BNP website’s description of formal membership: a new member over 18 ordinarily filled in a prescribed form and paid a five-taka fee, initially and annually ([31]). It found that ETA067’s account did not conform to that “official version” and was not satisfied he was a formal member ([33]). The High Court nevertheless considered that the Tribunal had not assessed his political profile solely by formal membership. It accepted he had been involved in BNP activities through his brother and local officials, had done party jobs, and would have been recognised locally as a BNP supporter because of his public visibility ([34], [40]). Thus, formal membership was not determinative of the review’s outcome ([40]).
The relocation argument also did not change the result. The Court described it as depending on a finding that ETA067 had a well-founded fear of persecution. Since the Tribunal had made no error in rejecting that finding, the Court held that the relocation issues did not need to be considered ([41], [43]).
The judgment applies statutory obligations in Nauru’s refugee-review framework. Section 22(b) required the Tribunal to act according to natural justice and the substantial merits of the case. Section 40(1) required an invitation to appear, give evidence and present arguments about issues arising from the decision under review ([9]-[10]). The Court’s analysis clarifies how those obligations applied to the two complaints before it.
On reasons and evidence, the judgment does not impose a requirement to list every item of evidence in the Tribunal’s reasons. Rather, it explains that an omission must be evaluated in context. The absence of an express reference does not, by itself, demonstrate that evidence was overlooked ([13], [24]). The possible significance of an omission depends on whether the unmentioned matter was material to the claim, including whether it was an essential or dispositive aspect ([14]).
On the hearing obligation, the judgment reads s 40(1) as focusing on the issues in the review, not on an obligation to put every evidentiary detail to the applicant ([37]). In this case, the appellant’s affiliation with the BNP was the relevant issue. The Tribunal’s questions about the claimed membership process and the appellant’s own account were sufficient to show that he had an opportunity to address that issue ([38]-[39]).
The decision also demonstrates that political profile was assessed from the appellant’s activities as a whole. The Tribunal accepted that ETA067 was locally identifiable as a BNP supporter despite rejecting his claim of formal membership. The High Court treated that broader assessment as relevant to why formal membership did not determine the outcome ([34], [40]). That is a fact-specific explanation, not a general rule that formal membership can never matter in a refugee assessment.
The materials provided do not establish a comprehensive “before and after” account of the law or identify changes made by later decisions. The judgment cites existing authorities for its reasoning about omissions in tribunal reasons and materiality ([13]-[14]). It is therefore possible to describe what this judgment applied and clarified, but not to claim from this text alone that it changed the law or to state how later courts have applied it.
At [13], the Court said: “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.” In plain English, reasons that do not mention a particular piece of evidence do not automatically prove that the decision-maker overlooked it. The surrounding reasons and the role of the evidence matter.
At [14], the Court distinguished evidence that the Tribunal did not consider material from a failure to consider a matter that was material to the claim. This cautions against treating every omission as legally significant. The inquiry is not simply whether a detail appears in the reasons; it is whether the omission indicates a failure concerning a matter important to deciding the review.
At [25], the Court said: “The question for the Tribunal was the risk of persecution of the appellant.” This identifies the focus of the inquiry in the first ground. Evidence about other people might be relevant, but the ultimate assessment was the risk to ETA067 himself.
At [26], the Court accepted that the evidence about assaults on others might explain ETA067’s subjective fear or lend plausibility to his concern. It nevertheless found that it was not central in light of the detailed evidence about his own treatment. In plain English, the Court did not say that third-party evidence was irrelevant in all circumstances. It concluded that, in this case, it did not carry the significance the appellant claimed.
At [37], the Court explained that s 40(1) is concerned with “the issue and not individual pieces of evidence.” In practical terms, the statutory invitation was to address the matter being decided, rather than requiring a separate opportunity to respond to every evidentiary item the Tribunal might use.
At [40], the Court said that the Tribunal assessed political profile by considering “the totality of his political activities, not solely the question of formal membership.” The Tribunal accepted that ETA067 had performed party tasks, appeared in public BNP activities and would be recognised locally as a supporter. The decision therefore treated the distinction between formal membership and political affiliation as relevant but not decisive on these facts.
The reasoning is most directly relevant where a party argues that an administrative tribunal ignored evidence because the reasons do not expressly mention it. The judgment indicates that the argument must be assessed against the reasons as a whole and the importance of the omitted evidence. Where the reasons address the central evidence and the omitted material is not essential or dispositive, silence alone may not establish a failure to consider evidence ([13]-[14], [24]-[27]).
In refugee review matters, the case is relevant to arguments based on evidence of harm to people other than the applicant. The Court considered such evidence in light of detailed evidence about the applicant’s own experiences. It found that the latter material was the central focus of the risk assessment in this case ([25]-[26]). The judgment does not exclude the possibility that evidence about other people could be material in another case; it does not set out the circumstances in which such evidence would be essential or dispositive.
The decision is also relevant where an applicant claims not to have had an opportunity to address a matter that the Tribunal considered. The critical framing is whether the applicant had an opportunity to address the issue arising in the review, not whether every document, evidentiary detail or adverse consideration was separately put to the applicant ([37]-[39]). Here, repeated questions about the appellant’s claimed BNP membership and the process by which he said he became a member supported the conclusion that he could address the issue.
Finally, the case may be relevant where formal membership is distinguished from political affiliation or public activity. The Tribunal rejected formal membership but accepted local affiliation and visibility. The High Court’s analysis turned on those particular findings and on the Tribunal’s assessment of the appellant’s activities as a whole ([32]-[34], [40]). It should not be read as deciding that membership status can never affect political profile or risk.
The judgment text supplied here does not identify any later decision applying, distinguishing, following or criticising ETA067. It therefore does not provide a basis to describe subsequent judicial treatment or to claim that a particular proposition has been adopted by later courts.
The High Court itself relied on earlier authorities. It cited Minister for Immigration and Citizenship v SZGUR in discussing the significance of an omission from reasons and the distinction between evidence not regarded as material and a failure to consider material matters ([13]-[14]). It also cited Minister for Immigration and Border Protection v SZSRS concerning omissions from reasons ([13], [24]). Further authorities cited in the footnotes were Minister for Immigration and Multicultural Affairs v Yusuf, Minister for Immigration and Border Protection v MZYTS, and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs ([14]). The judgment does not purport to set out the full reasoning of those decisions; its use of them is limited to the propositions for which they are cited.
Accordingly, any assessment of the precedent’s later status would require sources beyond the judgment reproduced here. On this record, the safe description is that ETA067 applied and explained the cited principles in resolving the particular statutory complaints before the Court, while subsequent treatment is not shown.
The judgment does not define a complete test for when evidence about harm to other people becomes essential or dispositive in a refugee claim. It explains why the evidence was not central on the facts before it, given the detailed evidence about ETA067’s own experiences ([25]-[27]). It leaves open how the analysis might differ where the applicant’s own evidence is limited, where the third-party evidence is closely comparable, or where that evidence bears directly on a disputed risk proposition. Those possibilities are not decided in the judgment.
The Court also does not specify every circumstance in which a tribunal’s reasons will be sufficiently comprehensive for an omission to support an inference that evidence was overlooked. It notes that this was not a case where the reasons were so comprehensive that the omission indicated oversight ([24]). The assessment remains dependent on the reasons and record in the particular matter.
On procedural fairness, the Court states that s 40(1) concerns issues rather than individual items of evidence. It does not provide an exhaustive account of when a tribunal’s questions will adequately notify an applicant that an issue is in contention. Its conclusion depended on the questions asked about the appellant’s claimed membership and the process he described ([32], [38]-[39]). The judgment therefore leaves the adequacy of notice in other factual settings to be assessed under the statutory language and the circumstances of each review.
Finally, the Court did not decide the relocation issues. It considered them unnecessary after finding no error in the Tribunal’s conclusion that ETA067 had not established a well-founded fear of persecution ([41]-[43]). The alternative statement that any fear would be confined to his suburb does not amount to a full consideration of relocation doctrine or its requirements.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
BELL, KEANE AND GORDON JJ
ETA067 APPELLANT
AND
THE REPUBLIC OF NAURU RESPONDENT
ETA067 v The Republic of Nauru
[2018] HCA 46
17 October 2018
M167/2017
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Nauru
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
ETA067 v The Republic of Nauru
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".
Refugees Convention Act 2012 (Nr), ss 5, 22(b), 40(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.
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.
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).
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.
In this appeal, which is brought as of right1, 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.
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 regard2 and to which he alleged the Tribunal failed to give him an opportunity to respond.
For the reasons that follow, the appeal should be dismissed.
Statutory obligations
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.
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 evidence3 and "must act according to the principles of natural justice and the substantial merits of the case"4.
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
"(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."
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.
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 tribunal5. That is especially so when regard is had to the content of the obligation to give reasons6, 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.
Further, there is a distinction7 between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims8, 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 claim9 or that would be dispositive of the review10.
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
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.
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.
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.
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.
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 the Tribunal, the appellant agreed in response to a Tribunal question that when the BNP was in power, groups of young BNP supporters would harass Awami League supporters; that is, "they were like identifiable gangs".
Finally, in relation to an alleged attack on the appellant's parents' home after he had left Bangladesh, the Tribunal was not satisfied that the intruders were looking for the appellant or his brother (a member of the BNP), even though the Tribunal accepted that it was plausible that members of the Awami League broke into the homes of known BNP supporters in the wake of the 2014 election.
Given those findings, the Tribunal was not satisfied that the appellant had suffered any harm "amounting to persecution at the hands of the Awami League for reason of his imputed political opinion". The Tribunal was also not satisfied that there was any real possibility of persecution of the appellant in the foreseeable future by reason of his political opinion (or imputed political opinion) and, therefore, the Tribunal concluded that his fears were not well‑founded.
Supreme Court of Nauru
Consideration
The absence of a reference to the Awami League Assault Evidence in the Tribunal's reasons did not justify an inference that it was not considered. This was not a case where the reasons of the Tribunal were so comprehensive that the omission was indicative of the evidence having been overlooked11. Rather, as the respondent submitted, the absence of any express reference was consistent with the Tribunal having not found the Awami League Assault Evidence to be persuasive as to, let alone material to the assessment of, the likelihood of the appellant suffering harm amounting to persecution.
The question for the Tribunal was the risk of persecution of the appellant. The Tribunal was presented with detailed evidence regarding the appellant's own experiences of being confronted by the Awami League. And, as already noted, the Tribunal challenged the aspects of that evidence which it considered did not stand up to scrutiny.
The appellant's own evidence was material to the assessment of the well‑foundedness of his fear. The Awami League Assault Evidence was not. At best, the Awami League Assault Evidence might have been explanatory of a subjective fear held by the appellant or might have added some plausibility to the appellant's suggestion that he may suffer harm. But in circumstances where the Tribunal was presented with detailed evidence of the appellant's own treatment by the Awami League, including evidence of threats but no actual physical violence, over a five year period, the Awami League Assault Evidence was not central to the determination of the appellant's claims.
Any perceived failure of the Tribunal to consider that evidence further did not cause the Tribunal to breach its obligations under s 22(b) to "act according to the principles of natural justice and the substantial merits of the case".
For those reasons, Ground 1 should be dismissed.
Formal membership of the BNP – Ground 2
The appellant contended, in substance, that the Supreme Court should have found 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.
Specifically, the appellant alleged:
"(a) The Tribunal did not give the appellant the opportunity of being heard in that it did not bring to the attention of the appellant or allow him the opportunity to ascertain or comment on an issue the Tribunal found relevant to relocation:
(i) That, contrary to the appellant's claim, the appellant was not ever a formal member of the BNP, and because of this (in part) the appellant had no profile within the BNP that would make him of interest to political activists outside his own suburb in Dhaka.
(b) The Tribunal did not give the appellant the opportunity to be heard on the information in paragraph [24] of its reasons, which was information on which the Tribunal relied adversely to the appellant."
"The Tribunal notes from the BNP official website that membership of the BNP normally requires the new member, who must be over the age of 18, to fill in a prescribed membership form available at the party office and to pay a membership fee of five taka on joining and annually thereafter." (footnote omitted)
Tribunal
As to particular (a), during the course of the hearing the Tribunal directly asked the appellant whether or not he was a member of the BNP. The appellant was then asked a series of questions about the differences between being a supporter of the BNP and a member of the BNP, what was required to become a member, and what had occurred at the time that he said he became a member. The appellant claimed that when a person becomes a member of the BNP, local officials list the new members' names in a book and this is announced by a leader at the thana level. The Tribunal's reasons record that the appellant could not recall any details of when his membership was so listed and announced, or who was present at any such occasion.
As to particular (b), the Tribunal opened its discussion of the appellant's claim that he was a member of the BNP in the terms of its par 24, set out above. The Tribunal then observed that the appellant's description of the process for membership of the BNP did not conform with "this official version" (that is, the information on the website) and that it was not satisfied that the appellant was ever formally a member of the BNP.
But that was not the extent of the Tribunal's findings. The Tribunal immediately went on to find that it accepted that the appellant was involved in the BNP through his older brother, himself a member of the BNP. The Tribunal found that he had spent time doing jobs for the party at the direction of his brother and local officials between 2003 and 2008. The Tribunal further found that the appellant would have been identified by members of his local community as a supporter of the BNP because of his visibility putting up posters and attending public rallies. It was therefore unsurprising that the Tribunal considered that, even though the appellant was affiliated with the BNP, he had not suffered harm amounting to persecution by reason of his political opinion, and was not satisfied that his fear of persecution in the future for reason of his political opinion was well‑founded.
Supreme Court of Nauru
Consideration
The appellant's complaints in this Court are, in substance, that the Tribunal did not bring to his attention or allow him to ascertain that his formal membership of the BNP was in issue so that he could comment or provide further evidence, and did not put to him the evidence from the BNP website.
Section 40 of the Refugees Act directs attention to the "issue[] arising in relation to the determination or decision under review". The language of s 40(1) makes it clear that the subject of inquiry is the issue and not individual pieces of evidence. The Tribunal is not required to refer to every piece of evidence and every contention made by an applicant under s 5 of the Refugees Act.
Here, the issue, properly framed, was the appellant's affiliation, or purported affiliation, with the BNP. The appellant contended that the Tribunal should have "put [him] on notice of its doubts that [he] was ever a formal member of the BNP by at least asking him why his account of his formal membership should be accepted". That contention should be rejected.
The appellant was on notice that the Tribunal doubted that he was a BNP member. The Tribunal asked him to respond to questions based on his account of what was required for membership, including whether and when his name was listed or announced, and whether his brother (himself a BNP member) was present. Accordingly, and consistent with s 40(1), the appellant was "invite[d] … to give evidence and present arguments relating to" his involvement with the BNP, including his formal membership.
Moreover, the Tribunal's assessment of the appellant's potential political profile was conducted, correctly, on the basis of the totality of his political activities, not solely the question of formal membership. Indeed, throughout its reasons, the Tribunal considered the appellant's involvement and affiliation with the BNP and accepted that he would be recognised among members of the local community as being part of the BNP. It was therefore plausible that members of the local community would impute him with the political opinion of the BNP, and his formal membership status would be unlikely to alter that position. But despite his visibility and affiliation with the BNP, the Tribunal nonetheless found that the appellant had not suffered any harm amounting to persecution and did not risk suffering harm amounting to persecution in the foreseeable future. That conclusion was correctly reached. Put in different terms, the appellant's membership or lack of formal membership of the BNP was not determinative of the outcome of the Tribunal's review.
Ground 2 in this Court, and therefore the question of formal membership, was, however, primarily framed by reference to the issue of relocation. The argument, so far as it goes, was that the appellant's formal membership would have had an impact on his profile within the BNP, meaning that, were he found to be a member, there would have been a greater chance that he would have been identified as holding an opposing view to the Awami League in other parts of Bangladesh, such that even if he were to relocate to another area (within Dhaka or elsewhere in the country) he would have still faced a risk of harm. That argument should be rejected. The argument was predicated (as was the finding of the Tribunal to which it relates) on it being established that the appellant had a well-founded fear of persecution. For the reasons stated earlier, there was no error in the Tribunal's conclusion that the appellant did not have a well-founded fear of persecution, including in the suburb of Dhaka where he lived.
Order
s 44 of the Appeals Act 1972 (Nr); s 5 of, and Art 1 of the Schedule to, the Nauru (High Court Appeals) Act 1976 (Cth). See also BRF038 v Republic of Nauru (2017) 91 ALJR 1197 at 1203-1204 [35]-[41]; 349 ALR 67 at 73-74; [2017] HCA 44. ↩
See [30]-[31] below. ↩
s 22(a) of the Refugees Act. ↩
s 22(b) of the Refugees Act. ↩
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605‑606 [31]; [2011] HCA 1. See also Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at 75 [34]. ↩
s 34(4) of the Refugees Act. ↩
SZGUR (2011) 241 CLR 594 at 605-606 [31]. ↩
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69]; [2001] HCA 30 quoted in SZGUR (2011) 241 CLR 594 at 605-606 [31]. ↩
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 447-448 [51]-[52]. ↩
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604-605 [47]. ↩
Cf SZSRS (2014) 309 ALR 67 at 75 [34]-[35]. ↩
ETA067
The Republic of Nauru [2018] HCA 46
(2017) 91 ALJR 1197
(2011) 241 CLR 594
(2014) 309 ALR 67
(2001) 206 CLR 323
(2013) 230 FCR 431
(2003) 236 FCR 593
Appeal dismissed with costs.
Moreover, even if the appellant's well‑founded fear of persecution was found to exist, it was isolated to the suburb in which he lived, meaning he could safely return to another part of Dhaka, or Bangladesh, without harm and therefore would not be afforded protection.
Accordingly, the issues relevant to relocation need not be considered.
The decision of the Supreme Court records that the appellant "concede[d]" this issue. However, in oral argument before this Court, the respondent clarified that the appellant's concession was subsequently withdrawn in the Supreme Court and that, accordingly, what is recorded in the Supreme Court's reasons is inaccurate: see ETA067 v The Republic of Nauru [2018] HCATrans 114 at 19; ETA067 v The Republic [2017] NRSC 99 at [29]. ↩