Legal papers

High Court Challenge Sets Precedent

Four years ago, Aaden* arrived by boat at Christmas Island and was transferred to Nauru, having left his province in Somaliland, an autonomous region in Somalia, six years earlier in search of sanctuary and a new life.

A member of the minority Gabooye tribe, Aaden had been persecuted in his homeland, with his family being forced off their farm, and occasionally threatened at gunpoint, by members of a more powerful tribe. Aaden sought sanctuary and a new life and he applied for refugee status after he reached Nauru.

His application was refused by the Secretary of the Department of Justice and Border Control of Nauru and his subsequent application to the Refugee Status Review Tribunal for review of the Secretary's determination was also unsuccessful.

The Tribunal accepted that Aaden's family had been forced off their land and threatened at gunpoint. It also accepted (relying on sources including the European Country of Origin Information Network) that minority groups in Somalia, such as the Gabooye tribe, suffer discrimination, have limited access to justice and education opportunities, may be excluded from political participation or employment and are victims of taboos against marriage with members of other castes.

But the Tribunal concluded that this discrimination did not amount to persecution. In reaching this conclusion, the Tribunal relied on 'country information' indicating that there were 'police from every tribe in Somaliland' and, therefore, Aaden would be able to receive assistance from the police, notwithstanding he belongs to a minority tribe.

Aaden appealed to the Supreme Court of Nauru, arguing that he wasn't afforded procedural fairness because he wasn't given the chance to respond to the 'country information' considered by the Tribunal. This appeal was unsuccessful.

We work closely with an Australian-based organisation, Justice Connect, who referred the matter to us after they identified that Aaden, and many others who had had their asylum applications rejected by the Nauru courts, may have grounds for appeal to the High Court of Australia. Partner Malcolm Stephens, Senior Associate Tristan Garcia and Lawyer Shamistha Selvaratnam worked on the case, which involved several legal issues.

The first issue was whether the appeal from the Supreme Court of Nauru to the High Court of Australia lay as of right, or whether leave to appeal was required. This point had not been tested before. The High Court held that the appeal lay as of right and, therefore, this case has now established a precedent that can be relied upon in future appeals from the Supreme Court of Nauru.

There were two grounds of appeal that we argued before the High Court: that the Tribunal applied an incorrect test for persecution (which failed) and the Tribunal did not afford Aaden procedural fairness (which was successful). The High Court allowed the appeal, set aside the Supreme Court's order and ordered that the Tribunal's decision be quashed and the matter remitted to the Tribunal for reconsideration.

Malcolm said this decision was important for two reasons: first, an appeal as of right (ie without needing leave) to the High Court has now been confirmed. Second, the court has confirmed the principle of procedural fairness that a person must be given an opportunity to comment on adverse information that is 'credible, relevant and significant'.

In explaining why we helped Aaden, Malcolm said: ‘It’s very important for the rule of law that people who cannot afford legal representation are given the chance to have a court determine whether their legal rights have been infringed.’

He also referred to the ‘sympathy for asylum seekers like Aaden, who have suffered terribly in their country of origin but still find themselves in a very difficult situation.'

Justice Connect figures show that there were 69 judgments relating to refugee status determinations handed down by the Supreme Court of Nauru in 2016 and 2017. Of these appeals, 18 were allowed, 43 were dismissed and eight were remitted to the Tribunal by consent. A total of 17 High Court appeals have been filed.

We, along with several other law firms, are working with Justice Connect to help other asylum seekers with their appeals to the High Court from the Supreme Court of Nauru.

At the time of writing, there are 16 matters before the Supreme Court of Nauru awaiting judgment; 36 matters yet to be listed for a hearing before the Supreme Court of Nauru; and 31 matters awaiting a hearing before the Tribunal or awaiting a determination by the Tribunal.

* Not his real name

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