1.Leave to amend the notice of appeal refused with costs.
2.Leave to be heard on Ground 3 refused with costs.
3.Appeal dismissed with costs.
On appeal from the Supreme Court of Nauru
Representation
A T Broadfoot QC with M L L Albert and S Gory for the appellant (instructed by Fitzroy Legal Service)
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
CRI026 v The Republic of Nauru
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin to place where persecutors had little or no influence or power – Where Tribunal's reasons contained typographical error – Where Tribunal issued corrigendum correcting error – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether typographical error in Tribunal's reasons disclosed error – Whether ability of appellant's family reasonably to relocate relevant to assessing appellant's ability reasonably to relocate – Whether Tribunal erred in failing to consider whether appellant's family able reasonably to relocate in assessing appellant's ability reasonably to relocate – Whether Tribunal's finding that persecutors had little or no influence or power in place of relocation supported by evidence.
Words and phrases – "complementary protection", "corrigendum", "freedom of movement", "internal flight alternative", "internal relocation", "non‑refoulement", "reasonable internal relocation", "reasonable relocation", "refugee", "subsidiary protection", "typographical error", "well-founded fear of persecution".
Convention Relating to the Status of Refugees (1951) as modified by the Protocol Relating to the Status of Refugees (1967), Art 1A(2). Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art 3. International Covenant on Civil and Political Rights (1966), Arts 2, 6, 7, 12. Nauru (High Court Appeals) Act1976 (Cth), s 5. Refugees Convention Act 2012 (Nr), ss 3, 4, 43.
KIEFEL CJ, GAGELER AND NETTLE JJ. This is an appeal as of right, pursuant to s 5 of the Nauru (High Court Appeals) Act 1976 (Cth), from a judgment of the Supreme Court of Nauru (Crulci J). The Supreme Court dismissed the appellant's appeal brought under s 43 of the Refugees Convention Act 2012 (Nr) ("the Refugees Act") against a decision of the Refugee Status Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of the Secretary of the Department…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
CRI026 v The Republic of Nauru [2018] HCA 19
Case
[2018] HCA 19
Decision Date
CaseChat Overview and Summary
The case of CRI026 v The Republic of Nauru involved an appeal as of right to the High Court of Australia from a judgment of the Supreme Court of Nauru. The appellant sought recognition as a refugee or as a person to whom Nauru owed complementary protection under Nauru's Refugees Convention Act 2012. The Secretary of the Department of Justice and Border Control had initially rejected the appellant's claims, a decision affirmed by the Refugee Status Review Tribunal and subsequently by the Supreme Court of Nauru.
The legal issues before the High Court included whether the appellant's ability to reasonably relocate within his country of origin was relevant to his claim for complementary protection, whether a typographical error in the Tribunal's reasons constituted an error, whether the ability of the appellant's family to relocate was relevant to assessing the appellant's own ability to relocate, and whether the Tribunal's finding that persecutors had little or no influence in a place of relocation was supported by evidence. The appellant also contended that the Tribunal had considered irrelevant matters concerning Sri Lanka and Tamils, thereby affecting its reasoning process.
The High Court considered the relevance of reasonable internal relocation to complementary protection, drawing on international jurisprudence and logic, and concluded it was relevant, just as it is to refugee protection. The Court also addressed a typographical error in the Tribunal's reasons, noting a corrigendum had been issued. Regarding the finding on the MQM's influence, the Court found that the Tribunal's assessment was based on cited sources, and in the absence of evidence to the contrary before the appellate courts, the finding was not demonstrably unsupported. The Court also refused leave to amend the notice of appeal to include arguments about the family's relocation and the Tribunal asking itself the wrong question, and ultimately dismissed the appeal.
Orders
Orders of the court
1. Leave to amend the notice of appeal refused with costs.
2. Leave to be heard on Ground 3 refused with costs.
3. Appeal dismissed with costs.
Background
Background to the litigation
KIEFEL This is an appeal as of right, pursuant to s 5 of the Nauru (High Court Appeals) Act 1976 (Cth), from a judgment of the Supreme Court of Nauru (Crulci J). The Supreme Court dismissed the appellant's appeal brought under s 43 of the Refugees Convention Act 2012 (Nr) ("the Refugees Act") against a decision of the Refugee Status Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of the Secretary of the Department of Justice and Border Control, made pursuant to s 6 of the Refugees Act, to reject the appellant's application to be recognised as a refugee in accordance with the Act or as a person to whom the Republic of Nauru ("Nauru") owes complementary protection under the Act.The facts As appears from the Tribunal's reasons, the appellant was born on 13 July 1975 in Sialkot in Punjab Province, Pakistan, but had lived most of his life in Karachi. Between 2003 and 2005, however, he lived in Sialkot, and, between 2010 and 2011, he lived in Lahore. He had completed nine years of schooling and held an electrical certificate. Between 2003 and 2011, he was self-employed in Pakistan as an electrician and air conditioning mechanic. The appellant married in Pakistan on 5 November 2006 and had two children, one born after he left Pakistan in 2011. His wife and children were living in Sialkot with her family. His parents, who emigrated from India many years ago, were resident in Karachi. His father worked in Dubai for some 15 to 20 years and retired four or five years before the Tribunal hearing. Two of the appellant's brothers, Faisal and Nasier, were in Dubai and Libya, respectively, and his other brother, Asif, had been in Libya but at the time of the hearing was living with the appellant's wife and children in Sialkot. The appellant had relatives living in Roras and Sambrial in the Sialkot district. The appellant departed Pakistan in 2011 and went to Malaysia. He arrived in Nauru in December 2013.The appellant's case before the Tribunal The appellant's case before the Tribunal was that he was a refugee under the Refugees Act or, alternatively, that he was a person to whom Nauru owed complementary protection under the Act because his circumstances engaged Nauru's international obligations under, inter alia, the International Covenant on Civil and Political Rights (1966) ("the ICCPR"). He claimed that he could not or did not want to return to Pakistan because he feared that upon his return he would be harmed by members of the Muttahida Qaumi Movement ("the MQM"). He said that he feared that the MQM would seek to hurt him to get revenge for an injury which he had inflicted on one of their senior members, Munir Tunda, in a fight at a cricket game some years before, and also because they viewed him as a political dissident. He claimed that he feared that the MQM would be able to find him anywhere in Pakistan and that the State would not be willing to protect him because the MQM are supported by and allied with the Pakistani authorities. He said that he also feared harm from generalised violence and insecurity in Pakistan.The Tribunal's decision
Evidence
Evidence Before The Court
In the circumstances, there is no point in granting the leave that was sought.Proposed Ground 4: No evidence to support critical finding As was also earlier noticed, counsel for the appellant sought leave to advance a further ground of appeal, proposed Ground 4, to the effect that there was no evidence to support what counsel described as the Tribunal's critical finding that "the MQM ... has little or no influence or power outside Sindh". Leave should be refused. As has been seen, the Tribunal's statement that the MQM had little or no influence or power outside Sindh formed part of their larger finding that:"[t]he MQM's support base is largely confined to Urdu speakers in the main cities of Sindh, particularly Karachi and Hyderabad. The Tribunal accepts that the MQM has campaigned in Punjab and may have an office or a presence in Lahore and in Sialkot. However, the MQM was not successful in securing seats at the national or provincial level in Punjab in 2013 and has little or no influence or power outside Sindh." (footnote omitted) In turn, as appears from the Tribunal's reasons, that finding was based on footnoted references to country of nationality information from the Immigration and Refugee Board of Canada and The Nation newspaper. Those sources were not adduced in evidence before the Supreme Court, and, just as they were not in evidence before the Supreme Court, they were not in evidence before this Court. Nor did counsel for the appellant suggest that the appellant should be permitted to tender those sources into evidence for the first time on appeal to this Court. He was right not to do so. In the circumstances, there is nothing to say that there was insufficient evidence to sustain the Tribunal's finding, and, accordingly, the argument in support of proposed Ground 4 must fail. Leave to advance Ground 4 should be refused.Conclusion The appeal should be dismissed with costs.
Decision
Reasons for decision
KIEFEL CJ, GAGELER AND NETTLE JJ
The appellant's case before the Tribunal was that he was a refugee under the Refugees Act or, alternatively, that he was a person to whom Nauru owed complementary protection under the Act because his circumstances engaged Nauru's international obligations under, inter alia, the International Covenant on Civil and Political Rights (1966) ("the ICCPR"). He claimed that he could not or did not want to return to Pakistan because he feared that upon his return he would be harmed by members of the Muttahida Qaumi Movement ("the MQM"). He said that he feared that the MQM would seek to hurt him to get revenge for an injury which he had inflicted on one of their senior members, Munir Tunda, in a fight at a cricket game some years before, and also because they viewed him as a political dissident. He claimed that he feared that the MQM would be able to find him anywhere in Pakistan and that the State would not be willing to protect him because the MQM are supported by and allied with the Pakistani authorities. He said that he also feared harm from generalised violence and insecurity in Pakistan.The Tribunal's decision The Tribunal accepted that the appellant might be regarded adversely by Munir Tunda as a result of the injury inflicted on Munir Tunda at the cricket game. The Tribunal did not accept that Munir Tunda held a senior position in the MQM but allowed that he might be a powerful person in Karachi associated with the MQM. The Tribunal accepted that the appellant was threatened in Karachi in 2003 and 2009 and that his shop was burnt down in 2003 by persons associated with Munir Tunda, and that those persons may have done so in retaliation for the assault. The Tribunal found that the MQM remained powerful in Karachi, albeit their power had diminished in recent times due to a high level of ethno-political violence between the MQM and the Awami National Party in 2012 and targeting by militant groups. It appeared to the Tribunal that the MQM were still dominant at the local and provincial level, having won 15 of the 20 National Assembly seats in 2013, and were allied to the Pakistani military. As against that, however, the Tribunal noted that the appellant's father had not reported any further threats or contact with Munir Tunda's associates since the appellant left Pakistan, and that the last threat was in 2009. The Tribunal further observed that it had been 12 years since the fight at the cricket game and six years since the last contact or threat. Consequently, it did not appear to the Tribunal that Munir Tunda or his associates had been searching for the appellant or waging a systematic vendetta against him. But it was possible that they might opportunistically harm him if they were to encounter him in Karachi. In the result, the Tribunal accepted that there was a real possibility that if the appellant were returned to Karachi he would be harmed by Munir Tunda or his associates, but only for reasons of personal revenge and not because of the appellant's political inclinations. The Tribunal further accepted that state protection from the police or other authorities in Karachi may be inadequate or withheld from the appellant because of Munir Tunda's political connections and involvement with the MQM. But the Tribunal also found that, due to the MQM's absence of power and influence in Punjab, the size of the population of Punjab, the existence of large urban centres such as Lahore and Sialkot and the fact that the appellant had previously lived in Lahore and Sialkot without coming to any harm, the appellant could live safely in Sialkot or Lahore or elsewhere in Punjab without a real possibility of harm from Munir Tunda or his associates. For reasons which the Tribunal specified, the Tribunal found, too, that relocation to Punjab would be reasonably available to the appellant. Further, due to the low level of attacks and casualties in Punjab, including Lahore and Sialkot, relative to the size of the population, and the fact that the appellant was not politically active and was a member of the religious majority, the Tribunal was satisfied that the risk of the appellant being harmed in generalised insecurity was remote and not a real possibility.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER AND NETTLE JJ
Given the weight of international jurisprudence in favour of the relevance of reasonable internal relocation to the assessment of complementary protection, the apparent absence of any international jurisprudence to the contrary, and the evident logic and common sense of regarding reasonable internal relocation as relevant to complementary protection just as it is relevant to refugee protection, leave to add the words "to Karachi" to Ground 1 should be refused and Ground 1 should be rejected.Ground 2: Error in taking irrelevant considerations into account or asking wrong question As was earlier noticed, counsel for the appellant sought leave to add the words "or asked itself the wrong question" to Ground 2. Leave should be refused. Under the heading of "General insecurity", the Tribunal recorded that the appellant had stated that there were ongoing targeted killings, violence and attacks in Pakistan, and the Tribunal accepted that there had been a level of insecurity in Pakistan, particularly in the tribal areas of Khyber Pakhtunkhwa and the Federally Administered Tribal Lands. But the Tribunal found that, in general, urban centres tended to be more secure, the situation in Lahore was relatively secure and better than many other areas of Pakistan and the evidence before the Tribunal did not indicate that Sialkot was insecure. It followed, as the Tribunal found, that, although there was a level of insecurity in Pakistan, by contrast Punjab (including Lahore and Sialkot) was relatively secure. Accordingly, given that the appellant was not politically active or associated with a government or military institution which might be targeted, and was of the majority Sunni faith, he was not a person at risk of being targeted and the risk of him being harmed in generalised insecurity was remote and not a real possibility. Having so concluded, the Tribunal then added to its reasons the following, evidently incongruous, further observation:"Refugee assessment68.Having regard to all of the evidence and findings above, the Tribunal finds that the [appellant] does not face a real possibility of persecution now or in the reasonably foreseeable future in Sri Lanka [sic] because of an imputed political opinion, his race or his membership of particular social groups comprising his family, young Tamils from the north, failed Tamil asylum seekers, Tamil returnees, persons who left Sri Lanka illegally or young Tamils separately and cumulatively [sic]. The Tribunal finds that the [appellant] is not a refugee." The appellant contended that it is apparent from that further observation that the Tribunal took into account irrelevant considerations concerning Sri Lanka and Tamils which had nothing to do with the case in point, or alternatively asked themselves the wrong question, and therefore the Tribunal's reasoning process was affected by error. At first sight, that might appear to be so. By any standard, it is remarkable that, in a matter concerning a Pakistani applicant claiming refugee protection on the basis of an alleged fear of being harmed by the MQM waging a vendetta against him for the injury he inflicted on Munir Tunda, the Tribunal should express its "Refugee assessment" in terms of the applicant not facing a real possibility of persecution in Sri Lanka because of an imputed political opinion, his race or his membership of particular Tamil social groups. Axiomatically, the latter has nothing at all to do with the former and thus, other things being equal, the Tribunal's reference to the latter would tend to imply that the Tribunal's reasoning process had gone seriously awry[37].[37]See and compare SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 at [36]; SZNZK v Minister for Immigration and Citizenship (2010) 115 ALD 332 at 341 [38].