High Court of Australia

BRF038 v The Republic of Nauru [2017] HCA 44

18 Oct 2017

Case Number: M28/2017

Before

Keane, Nettle, Edelman JJ

Catchwords

Appeal – Supreme Court of Nauru – Where Refugees Convention Act 2012 (Nr), s 43(1) confers right to "appeal" to Supreme Court against a decision by Refugee Status Review Tribunal not to recognise person as a refugee – Whether Supreme Court was exercising original jurisdiction when determining "appeal" from Tribunal – Whether appeal from Supreme Court to High Court lay as of right.

Migration – Refugees – Where Refugees Convention Act 2012 (Nr), s 3 adopts definition of "refugee" under Refugees Convention as modified by Refugees Protocol – Where Refugees Convention requires "well-founded fear of being persecuted" – Where Tribunal found harm appellant and family faced constituted discrimination, but not persecution – Whether Supreme Court erred in failing to hold that Tribunal applied wrong test in determining whether appellant suffered persecution – Whether Tribunal required total deprivation of appellant's human rights to find persecution.

Migration – Refugees – Where Refugees Convention Act 2012 (Nr), s 22(b) provides that Tribunal "must act according to the principles of natural justice and the substantial merits of the case" – Where appellant stated that Somalian authorities were unwilling to assist him and his family due to ethnicity – Where Tribunal relied on country information indicating that there are police from every tribe in Somaliland to conclude appellant would have "some redress from the acts of others" – Whether failure by Tribunal to put substance of information to appellant constituted breach of requirements of procedural fairness.

Words and phrases – "appeal", "country information", "credible, relevant and significant", "original jurisdiction", "persecution", "procedural fairness", "well-founded fear of persecution".

Appeals Act 1972 (Nr) – s 44.

Nauru (High Court Appeals) Act 1976 (Cth) – ss 5, 8.

Refugees Convention Act 2012 (Nr) – ss 3, 5(1), 6(1), 22(b), 31(1), 37, 43(1), 44.

Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr) – ss 5, 6, 24.

Refugees Convention (Amendment) Act 2017 (Nr) – ss 4, 5, 6, 7.

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 (1976) – Art 1.

Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) – Art 1A(2).
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