The High Court of Australia hears appeals from the Supreme Court of Nauru

Maria O'Sullivan

There are two refugee cases which are currently before the High Court which have not yet been the subject of media coverage or academic attention. However, there are in fact quite important in terms of what they say about the due process rights of asylum seekers wishing to be recognised as refugees in Nauru. This due process protection is what we call ‘procedural fairness’ in Australia and essentially requires adverse information to be put to an applicant before any decision is made against them. This is considered to be a fundamental procedural protection for persons attempting to be recognised as a refugee. As a result, it is a commonly invoked ground of review in Australian courts and has been the subject of many landmark High Court cases.

The present appeals from Nauru are important because they will add to this existing jurisprudence on fairness of procedure, but also because they will involve the High Court undertaking an unusual and rarely-exercised role, that is, hearing an appeal from a non-Australian court.

How are the present cases different?

The two Nauru cases currently before the High Court – M27/2017 and M28/2017 - are different in character to the challenges lodged in the past in relation to offshore detention centres.

As readers will know, there have been a number of cases heard by the High Court of Australia about the operation of Nauru. However, these have largely been in relation to the validity of the designation of Nauru as an ‘regional processing centre’ and related legal issues under  Australian law (see eg Plaintiff M68). The current appeals are quite different in that they are from asylum seekers in Nauru who are challenging the rejections of their refugee claims by the Refugee Status Review Tribunal of Nauru.

These matters have come to the High Court of Australia because the applicant’s challenges to the decisions of the Nauruan Refugee Tribunal were rejected by the Supreme Court of Nauru.

How can a refugee in Nauru appeal directly to the Australian High Court?

An appeal from Supreme Court decisions to the Australian High Court is possible due to the operation of section 5 of the Nauru (High Court Appeals) Act 1976 (Cth). This Act implements an Agreement between the Governments of Australia and Nauru signed in 1976 (after Nauru’s independence). It provides that, in certain civil cases, an appeal lies to the High Court as of right against any final judgment of the Supreme Court of Nauru. These arrangements can be traced back to the role of Australia as administrator of Nauru prior to 1976 (summarised here)

This appeal right was the subject of legal challenge in the High Court in Ruhani where it was argued that the High Court does not in fact have jurisdiction to hear and determine appeals from Nauru. That challenge was rejected and thus the appeal right remains. However, it has been used only rarely.

Refugee Status Decision-making in Nauru

An analysis of the full background to the development of a refugee law system in Nauru is beyond the scope of this brief piece. However, it is worth noting a number of salient points:. First, Nauru passed a Refugee Act in 2012 and is therefore now able to undertake refugee status decision-making (RSD) under domestic legislation (rather than under international law). Significantly, Section 37 of the Refugee Act of Nauru sets out a procedural fairness provision which is at issue in the present appeals. It provides that the Refugee Status Review Tribunal of Nauru must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the determination or decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the determination or decision that is under review; and

(c) invite the applicant in writing to comment on or respond to it.

Section 37 is of important not only for Nauru RSD but because it is similar to the procedural fairness provision set out in Section 424A of Australia’s Migration Act 1958 (Cth). However, unlike the Migration Act, which requires that the information be ‘personal’ to the application, s 37 of the Refugees Act does not contain any such limitation. There is therefore a strong argument that procedural fairness to be accorded by the Nauruan Tribunal is more expansive than that to be accorded under Australian law.

The second point about RSD in Nauru is that officers have received some technical training and mentoring from experienced Australian decision-makers seconded to the Government of Nauru. Thus, there has been a strong influence by Australia over the legislative and procedural framework of decision-making in Nauru.

The current appeals – M27 and M28

These two cases are factually unrelated in that they involve applicants from two different countries – Nepal and Somalia – and differ somewhat in the legal errors argued in their submissions related to the substantive questions about persecution. However, the cases raise common procedural fairness arguments.

One of the central arguments is that the Refugee Tribunal of Nauru failed to give notice to the applicants of general country information and the failure to communicate the information in writing. For instance, the Plaintiff in M27 (an applicant from Nepal) argues that:

The Tribunal did not give to the Appellant "clear particulars" of the changing circumstances in Nepal and Chhetri representation in the army, each of which was relied on by the Tribunal to reject an aspect of the Appellant's claim for protection:

1. The Tribunal raised the first issue with the Appellant but did not explain its relevance to him and did not invite him in writing to respond to it

2. The Tribunal did not raise the second issue with the Appellant, did not explain its relevance and did not invite him in writing to respond to it. [emphasis added]

The claim is that in failing to accord with procedural fairness in this way, the Tribunal did not meet the requirements of s 37 of the Refugees Act.

The provision of procedural fairness and country information

The granting of procedural fairness in asylum decisions is of vital importance because an asylum seeker’s application for refugee status will typically turn on two things: the credibility of the applicant and country information.

For those unfamiliar with the term, ‘country information’ refers to material compiled by bodies such as the Department of Foreign Affairs and Trade, the US State Department, the United Nations and Amnesty International. Such information will set out the state of human rights in a particular country and asses the risk that certain groups may face if returned. As you may imagine, such material is often highly influential in refugee claims.

A decision-maker’s procedural fairness obligations in relation to country information has been a highly contested one in Australia. This is because it is said by some that procedural fairness should only apply to personal information about an applicant. This is reflected in the Migration Act’s statutory codification of procedural fairness in section 424A which sets out a limited interpretation of what materials are required to be given to an applicant for comment. This has been the subject of extensive High Court analysis, most notably in Plaintiff M61 where the Court held in 2010 that applicants for refugee status on Christmas Island were owed procedural fairness including the provision of country information.

It is therefore of significant interest that similar questions about country information are now before the High Court of Australia in relation to refugee decision-making in Nauru.

Implications and conclusions

The current challenges from asylum seekers in Nauru give rise to two important legal questions.

First, they raise a question as to extent to which Australian law and the offshore centre regimes are linked. Many argue that these centres are effectively controlled by the Australian government: Australia established and funds the centres and has contracted with private companies to operate them. However, the Australian government has consistently denied any legal responsibility for the centres. It is therefore of great interest that the Australian High Court is now being called upon to directly adjudicate upon the findings of the Supreme Court of Nauru in two refugee claims.

Second, they raise a question about the proper content of procedural fairness in refugee decision-making. As noted above, this has been a disputed legal question in Australia, particularly in relation to country information. The Australian government has sought to limit the right of asylum seekers to obtain the full protections of procedural fairness, as we have seen in the introduction of ‘fast tracking processes’ which limit procedural rights for certain boat arrivals. Finally, it is worth noting that there have been a significant number of appeals to the Supreme Court of Nauru by refugee applicants. Thus, the findings of the High Court of Australia on the procedural fairness to be owed to such applicants are likely to be significant not only to Australian jurisprudence, but also more broadly for the development of administrative law in Nauru.

Dr. Maria O’Sullivan is a Senior Lecturer in Law and a Deputy Director of the Castan Centre for Human Rights Law at Monash University. Her research focuses on a comparative analysis of Australian and European refugee law and practice. Maria’s recent publications include an edited collection of papers on refugee law and policy: States, the Law and Access to Refugee Protection – Fortresses and Fairness (Hart, 2016), co-edited with Dr Dallal Stevens. She is currently writing a book which analyses the use of temporary residence and cessation for refugees from a comparative perspective.