High Court passes on opportunity to address implications of not providing unsuccessful asylum seekers with reasons

The Republic of Nauru v WET040 [2018] HCA 60

Summary 

On 7 November 2018, the High Court of Australia (HCA), comprised of Gageler, Nettle and Edelman JJ, unanimously allowed an appeal from a decision of the Supreme Court of Nauru. 

Facts

Majid Moharrami (referred to by his boat identification, WET0404) is an Iranian national who arrived on Christmas Island on 6 August 2013, and was transferred to the Nauru Processing Centre on 25 January 2014. His Refugee Status Determination application, in which he claimed to fear returning to Iran on the basis that he would suffer serious harm from his father-in-law or brothers-in-law after the breakdown of his marriage, was rejected by the Secretary of the Department of Justice and Border Control (Secretary) on 30 November 2015.

Mr. Moharrami then applied to the Refugee Status Review Tribunal (Tribunal) under section 31 of the Refugees Convention Act 2012 (Nr) (Act) for review of the Secretary's determination, in which he made new claims that he would also be perceived to hold political and religious opinions that were anti-government, anti-regime and anti-Islamic based on his ethnicity as an Azeri Turk and his status as a failed asylum seeker. There were also new claims about his wife's family, including that they were Islamic Fundamentalists and that his father-in-law was a member of the Sepah, which controls the Iranian government thus he is at risk from the entire regime. The Tribunal delivered its decision on 4 December 2016, where it upheld the Secretary's determination, found that there were grounds for doubting the authenticity of Mr. Moharrami's claims and that he was not to be recognised as a refugee under the 1951 Refugees Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, and is not owed complementary protection under the Act. 

Mr. Moharrami then appealed the Tribunal's decision to the Supreme Court of Nauru. Relevantly, heappealed on the grounds that the Tribunal made errors of law in its decision when it did not provide a rational basis or evidentiary foundation in deciding that claims were 'implausible' and that in doing so, it failed to meet its obligation to give reasons in accordance with section 34(4) of the Act. 

On 28 September 2017, Crulci J of the Supreme Court of Nauru found in favour of Mr. Moharrami andthat the Tribunal had erred by finding that certain claimed events were 'implausible' without any rational basis. The Republic of Nauru then appealed as of right to the HCA, arguing that the Tribunal had notfailed to give adequate reasons for their decision.

As the Respondent, Mr. Moharrami (Respondent) failed to enter an appearance at the HCA and on this basis, the Refugee and Immigration Legal Centre was granted leave to appear as amicus curiae to raise issues concerning the HCA's jurisdiction to hear and determine the appeal in the absence of the Respondent. In particular, the amicus curiae submitted that the HCA ceased to have jurisdiction to hear and determine the appeal as a consequence of Nauru's termination of the Agreement between the Government of Australia and the Government of the Republic of Nauru relating to appeals to the HCA from the Supreme Court of Nauru signed on 6 September 1976 (Agreement) on 12 December 2017, which took effect 90 days later (on 13 March 2018). Article 6(2)(a) of the Agreement provides that termination of the Agreement is not to affect 'the hearing and determination of an appeal from the Supreme Court of Nauru instituted in the HCA before the date of the termination'. Notwithstanding that the notice of appeal was filed some five months before the date of the termination, the submission of the amicus curiae was that the appeal was not properly 'instituted' within the meaning of Art 6(2)(a) because the time for filing the notice of appeal had not been enlarged before the date of termination.

Decision 

The HCA rejected the submission of the amicus curiae in an ex tempore judgment on the basis that the Judiciary Act 1903 (Cth) does not apply to Nauruan appeals (specifically, section 77T of the Judiciary Act 1903 (Cth)). Instead, it was held that the procedure by which an appeal from the Supreme Court of Nauru is to be instituted is left entirely to the High Court Rules and rules 42.01 and 43.02 provide that such an appeal is instituted simply by filing a notice of appeal. 

As to the substantive grounds of appeal, the HCA held that Crulci J's reasoning was erroneous and based on the judgment of Lee J in W64/01A v Minister for Immigration and Multicultural Affairs despite that judgment having been later overturned on appeal. More principally, the HCA found that the Tribunal's implausibility finding was not speculative or unsupported but rather it was a rational inference drawn from the fact that the Respondent changed his evidence on a number of points when pressed and that key parts of the evidence concerning the attitude of the Respondent's in-laws were inconsistent and improbable. 

As this was sufficient to determine the appeal, it was not strictly necessary for the HCA to address whether the obligation to give reasons as per section 34(4) of the Act was met. The HCA did however state that if it were, there would be 'no question that the Tribunal's reasons met the requisite standard'. The HCA noted that the case Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, in which McHugh J held that no detailed reasons need to be given if a primary decision maker stated that he or she does not believe a particular witness, was referred to as entirely orthodox by the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection. However in regard to the Durairajasingham case, the HCA added that 'even so, it is [still] necessary to bear in mind that each case ultimately depends on its own facts and circumstances'. 

Commentary 

This case was unique for a number of reasons. First it was the Republic of Nauru which had appealed the decision of the Supreme Court of Nauru and given its timing, the case was concerned with the invocation of the HCA's original jurisdiction, conferred by way of the Agreement. It was one of the last of the appeals from the Supreme Court of Nauru following the termination of the Agreement. Second it appeared as though it may provide guidance on whether section 34(4) of the Act prevents decision makers from making an adverse assessment regarding the likelihood of an asylum seeker's claims being true without providing reasons, which had the potential to impact scores of other asylum seeker clients at both the Tribunal and the Supreme Court of Nauru. 

Unfortunately, the implications of this case may be limited due to the HCA choosing to isolate the principles applied in response to the issues concerning jurisdiction to the Nauru (High Court Appeals) Act1976 (Cth) rather than the Judiciary Act 1903 (Cth) and then deciding that Crulci J's judgment and criticisms of the Tribunal's decision being unfounded was sufficient to dispose of the appeal without turning to the scope of the obligation to give reasons. However, while the HCA did not address it expressly, a question mark may arise for the circumstance where a Court is exercising its appellate jurisdiction. That is, in the appellate jurisdiction, is it the timely and proper filing of the notice of appeal which conditions when an appeal is 'instituted' in the High Court (relying on Judiciary Act s 77T).

The full decision is available here.

Georgia Dobbyn is a Lawyer at Allens.