TTY167 v Republic of Nauru  HCA 61
The High Court of Australia has decided that Nauru's Refugee Status Review Tribunal (Tribunal) acted unreasonably in refusing the appellant's protection application after the appellant failed to appear before the Tribunal at a scheduled hearing.
The appellant, a male citizen of Bangladesh, applied to Nauru's Secretary of the Department of Justice and Border Control (Secretary) to be recognised as a refugee, or a person owed complementary protection under the Refugees Convention Act 2012 (Nr) (Act). The appellant's application was made on the basis that he was a known supporter of the Jamaat-e-Islami (JeI) political group, and that JeIsupporters had been persecuted by the Awami League government in Bangladesh since 2009.
On 9 October 2015, the Secretary refused the appellant's application. The Secretary did not accept that the appellant was anything more than a low-level supporter of JeI, or that the appellant had experienced persecution as a result of being such a supporter.
The appellant applied to the Tribunal under section 31 of the Act for merits review of the Secretary's determination. The Tribunal invited the appellant to appear before it at a hearing on 6 May 2016. Prior to the hearing, the appellant provided the Tribunal with a personal statement and a 39-page submission prepared by his lawyers in support of his application. These written documents explained that the appellant planned to appear before the Tribunal to give oral evidence, and that the appellant was experiencing a deteriorated state of mental health. The appellant failed to attend the hearing, and the Tribunal affirmed the Secretary's decision to refuse his protection application.
The appellant appealed from the Tribunal's decision to the Supreme Court of Nauru. The appellant submitted: first, that he had been denied procedural fairness by the Tribunal's failure to adjourn the hearing; and second, that the Tribunal was biased against him. The Supreme Court dismissed the appealon both grounds.
The appellant appealed the Supreme Court's decision to the High Court of Australia (Justices Gageler, Nettle and Edelman), again on two grounds:
first, that he was not effectively invited to appear before the Tribunal; and
second, that it was legally unreasonable for the Tribunal not to adjourn the hearing when he failed to attend.
While the appellant's second ground of appeal had been argued before the Supreme Court, the first ground was novel.
The first ground of appeal was dismissed by the High Court. The Tribunal's letter inviting the appellant to appear before it was sent to the appellant's claims assistant. However, as this ground of appeal was not raised before the Supreme Court, there was no evidence available to the High Court concerning whether the claims assistant had been authorised to receive correspondence on the appellant's behalf. Accordingly, this issue could not be dealt with the by High Court.
The second ground of appeal was accepted by the High Court. Under section 41(1) of the Act, the Tribunal had a discretionary power to determine the appellant's protection application without adjourning the hearing. Further, a high standard had to be met to demonstrate legal unreasonableness in the exercise of this power, particularly given the need for informality and efficiency in the Tribunal's process.
Nonetheless, the High Court observed the following exceptional circumstances that arose in this case:
the appellant had been highly engaged with pursuing his application for protection;
the appellant's written statement and submission to the Tribunal indicated that he intended to attend the hearing to provide oral evidence;
the appellant's oral evidence was a matter of considerable importance for the determination of his application;
the Tribunal was aware that the appellant was suffering from mental health problems, and that these problems could have reasonably affected the appellant's ability to attend the hearing;
the Tribunal could not reasonably have inferred that the appellant made an informed decision not to attend the hearing; and
the Tribunal could simply have contacted the appellant's lawyers or claims assistant when the appellant did not attend the hearing, but did not do so.
In the High Court's view, the combination of these exceptional circumstances led to the conclusion that the Tribunal's failure to adjourn the hearing was legally unreasonable. The High Court ordered that the matter be remitted to the Tribunal for reconsideration according to law.
The notice of appeal in this case was filed with the High Court of Australia 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 (Agreement). If the notice of appeal were filed today, this case would have been determined by Nauru's newly established Court of Appeal. The success of the vast majority of asylum seeker appeals from the Supreme Court to the High Court attracted considerable public attention in Australia, and possibly encouraged Nauru's unilateral termination of the Agreement. It remains to be seen whether the Supreme Court will be given greater deference by the Court of Appeal than it was given by the High Court of Australia in relation to asylum seeker matters.
In any event, this case affirms the importance of legal unreasonableness as a basis on which statutory powers of the Tribunal can be challenged. The High Court acknowledged the wide latitude that should prima facie be afforded to the Tribunal when exercising statutory power. Nonetheless, the Court did not allow the requirements of procedural fairness to be undermined by the demands of an efficiency and informality in the Tribunal system.
The full text of the decision is available here.
Luke Chircop is a Lawyer at Allens.