NAURU COURT OF APPEAL 	Refugee Appeal No. 2 of 2019	
AT YAREN   	[Supreme Court Refugee Appeal No. 7 of 	
APPELLATE JURISDICTION      	  2018]	

  

BETWEEN:	ROD 124

APPELLANT

AND:	REPUBLIC OF NAURU 

                              
 RESPONDENT

BEFORE:			Justice R. Wimalasena
				Justice C. Makail

DATE OF HEARING:	17/10/2022

DATE OF JUDGMENT:	21/07/2025

CITATION:	ROD 124 v. REPUBLIC OF NAURU 

KEYWORDS:	COURT OF APPEAL – Refugee appeal – Appeal against dismissal of appeal by Supreme Court – Appeal to Supreme Court from decision by Refugee Status Tribunal to affirm determination of Secretary to hold applicant not eligible for refugee status and owed complementary protection – Refugees Convention Act, 2012 

	COURT OF APPEAL – Practice & Procedure – Application for leave to advance ground not taken in Supreme Court – Principles of leave discussed – Adequate explanation for not taking up ground in Supreme Court – Prospects of success of proposed appeal – Prejudice to respondent – Interests of justice – Exceptional case

	COURT OF APPEAL – Immigration – Application for refugee status – Claim of appellant suffering a broken arm – Claim of fear to harm from political enemies – Adverse credibility findings 

LEGISLATIONS:	Refugees Convention Act, 2012, Nauru Court of Appeal Act, 2018 

CASES CITED:	WET054 v The Republic of Nauru Refugee Appeal 07 of 2019, Khalil v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1134, AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, ASB17 v Minister for Home Affairs [2019] FCAFC 38, AVQ15 v. Minister for Immigration and Border Protection [2018] FCAFC 133, Minister for Immigration v SZMDS (2010) CLR 611, Djokovic v Minister for Immigration [2022] FCAFC 3, CRU18 v Minister for Home Affairs [2020] FCAFC 129, Minister for Immigration and Citizenship v Li [2013] 249 CLR 332, Eastman v R [2000] HCA 29; 203 CLR 1

APPEARANCES:

COUNSEL for the Appellant:		Ms. F Batten & Mr. C Hibbard

COUNSEL for the Respondent: 	Mr. T Reilly 

JUDGMENT 

1.	This is an appeal from the judgment of the Supreme Court which, under Section 44(1) of the Refugees Convention Act, 2012 (“Refugees Act”), affirmed the decision of the Nauru Refugee Status Review Tribunal (“the Tribunal”).  

Summary of Facts 

2.	According to the appeal record and adopting the summary of facts set out in the respondent’s submissions, on 1 February 2014 the appellant applied to the Secretary of the Department of Justice and Border Control (“the Secretary”) to be recognised as a refugee.  In a statement attached to that application, the appellant claimed to have fled Bangladesh after being abducted, held and beaten for three days by members or supporters of the Awami League (“the AL”).  The appellant claimed that he was abducted because he was a member of the Jamaat-e-Islam (“the JI”), which was a party in opposition to the AL.  The appellant claimed to fear harm in Bangladesh due to his membership of the JI.  The appellant also claimed he could not relocate within Bangladesh as he would be found by the AL.
 
3.	On 22 September 2014, the Secretary determined that the appellant was not recognized as a refugee and was not a person to whom Nauru owed protection obligations under the Refugees Act.  The Secretary did not accept that the appellant was a credible witness, and therefore did not accept that he was a member of the JI or that he was abducted and physically assaulted for the reasons claimed.  On that basis, the Secretary did not think that there was a reasonable possibility that the appellant would experience harm if returned to Bangladesh.

4.	On 2 October 2014, the appellant sought review of the Secretary’s determination.  The appellant made a written statement to the Tribunal on 29 November 2014.  It addressed concerns identified by the Secretary and gave additional evidence in relation to his claimed abduction and his time in Bangladesh prior to fleeing.  In addition, the appellant’s representative provided written submissions to the Tribunal on 29 November 2014. On 5 December 2014 the appellant attended a hearing before the first Tribunal.

5.	On 16 January 2015, the first Tribunal delivered its decision and affirmed the Secretary’s decision that the Appellant is not recognized as a refugee and is not owed complementary protection under the Refugees Act. Being aggrieved by the first Tribunal decision, the Appellant filed a Notice of Appeal to the Supreme Court on 20 July 2015. On 17 June 2016, the Appellant filed an Amended Notice of Appeal and the Supreme Court proceeded to hear the matter on 11 August 2016. On 23 December 2016, the Refugees Convention (Derivative Status and Other Measures) (Amendment) Act 2016 was enacted (“Amending Act”), which provided in section 24 that section 37 of the Act was repealed. 

6.	On 9 March 2017, in light of the Amending Act, the court further granted leave to the parties to file amended pleadings and supplementary submissions. The Further Amended Notice of Appeal was filed on 28 March 2017. On 10 July 2017, the Supreme Court allowed the appeal, quashed the decision of the Tribunal dated 16 January 2015 and remitted the matter to the Refugee Status Review Tribunal for reconsideration according to law pursuant to section 44(1)(b).

7.	Following the remittal of this matter, the appellant gave a further written statement to the Tribunal dated 6 November 2017, which attached several documents including medical records regarding his mental state.  The appellant stated that a close friend had recently died and that he no longer wished to discuss, or answer any further questions regarding, his refugee claims. 

8.	The appellant also outlined that he had instructed his representative to prepare his statement on the limited information already provided to them.  The statement also outlined that the appellant’s memory has been terrible since coming to Nauru and that he had lost much of his knowledge of politics and did not remember the sequence of events that led him to leaving Bangladesh.  The appellant stated that he was still a member of the JI and that he would continue to remain so.

9.	The appellant appeared at another hearing on 8 November 2017 but declined to provide any further evidence.  The appellant told the Tribunal that he did not wish to give any further evidence, and that the Tribunal should make its decision on the information previously provided.

10.	The Tribunal invited the appellant to appear before the Tribunal again, on 22 February 2018. Prior to this hearing the appellant instructed his legal representative that he would not attend this hearing. The appellant also told his legal representative that the Tribunal should make a decision on the information before it and that he did not consent to his legal representative providing the Tribunal with any further information on his behalf.

11.	On 16 July 2018, the Tribunal again affirmed the Secretary’s determination that the appellant was not recognized as a refugee and was not a person to whom 	Nauru owed protection obligations under the Refugees Act.  Given the appellant’s unwillingness to engage, the Tribunal proceeded to decide on the appellant’s review without giving him a further opportunity to appear before it.  In deciding on this course, the Tribunal observed that there was no medical or other evidence before it to indicate that the appellant could not effectively participate in a Tribunal hearing or exercise his right to waive a hearing.  There was also nothing before the Tribunal to indicate that the appellant wished to engage with the Tribunal, and it lawfully proceeded under Section 41(1) of the Refugees Act.

12.	 The Tribunal did not accept key aspects of the appellant’s claim to fear harm from the AL due to his membership of the JI.  In particular, the Tribunal did not accept the appellant’s explanation for why AL members would abduct him or how he escaped harm in the period of his alleged release from hospital and his departure from Bangladesh.  Accordingly, the Tribunal was not satisfied that the appellant had been, or would be, harmed on the basis of his political opinion.

13.	 The Tribunal considered whether the appellant was owed complementary protection.  The Tribunal found that the appellant was not owed complementary protection as it was not satisfied that the appellant would face harm because of his political opinion or any other Convention reason.  The Tribunal was also not satisfied that the appellant would be unable to obtain suitable medical treatment for his mental condition (as described in his mental health records) should it continue his return to Bangladesh.

14.	 The Tribunal, accordingly, affirmed the Secretary’s determination.

15.	 On 31 July 2018, the appellant commenced an appeal in the Supreme Court.  He did not file written submissions and did not make oral submissions.  The Supreme Court affirmed the decision of the Tribunal.

Grounds of Appeal

16.	 The notice of appeal filed on 28 May 2019 pleaded a sole ground of appeal as follow:

“The primary judge erred by failing to find that the Refugee Status Review Tribunal made errors of law in its decision.”

17.	 The appellant advanced two grounds of appeal in an amended notice of appeal dated 14 October 2022. These are set out below:

“1.	The Primary Judge erred by failing to find that the Refugee Status Review Tribunal (the Tribunal) erred in its reasoning in relation to a purported discrepancy in the Appellant’s evidence and/or by failing to consider relevant information.

Particulars

a.	The Tribunal referred to a “discrepancy” between the Appellant’s claim to have suffered a broken arm (AB 227 [35]) when he was kidnapped and the medical certificate he submitted in support of his claim.

b.	The Appellant’s evidence was not in fact discrepant.

c.	Further, the Tribunal failed to assess the alleged “discrepancy” in accordance with the principles outlined in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, [23] – [28] [41] and ASB17 v Minister for Home Affairs (2019) 268 FCR 271.

d.	This formed the Tribunal’s adverse assessment of the Appellant’s credibility and rejection of his claim to face persecution in Bangladesh due to his political opinion.

e.	The Tribunal also erred by failing not considering the evidence that the Appellant’s arm had “a visible non-alignment below the elbow. (AB 151 [17]).

2.	The Primary Judge erred by failing to find that the Refugee Status Review Tribunal (the Tribunal) erred by making findings that were not supported by evidence.

Particulars

a.	The Tribunal found the AL would have needed to commit significant resources to the planning and execution of an abducted and such a project could not have been without some risks to those involved (AB 225 – 226 [30]).  There was no evidence before the Tribunal to support such a finding and it is not open on the evidence.

b.	In part, based on the findings in (AB 225 – 226 [30]) the Tribunal formed an adverse assessment of the Applicant’s credibility.”

Application for Leave to Advance Fresh Grounds of Appeal 

18.	 It is common ground between the parties that these two grounds were not advanced in the Court below. It is also common ground that it is necessary to seek leave to amend the notice of appeal to include these two grounds and to advance them as fresh grounds of appeal because the notice of appeal was amended and served less than 14 days after the date fixed for hearing of the appeal.

19.	In WET054 v The Republic of Nauru Refugee Appeal 07 of 2019, this Court discussed the question of amendment of notice of appeal and introducing of fresh grounds of appeal for the first time, in greater detail. As per section 48 of the Refugees Act, leave is not required in order to amend the notice of appeal if such amendment is made no later than 14 days from the hearing date of the appeal. However, if the appellant seeks to pursue a new ground of appeal that was not raised in the court below, then the Court has the discretion to decide whether to allow such an application. 

20.	This Court in WET054 v The Republic of Nauru Refugee Appeal 07 of 2019, stated as follows:

[26] In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] the following non-exhaustive list of questions were formulated to consider if leave can be granted to raise a new ground of appeal:
1.	Do the new legal arguments have a reasonable prospect of success?
2.	Is there an acceptable explanation of why they were not raised below?
3.	How much dislocation to the Court and efficient use of judicial sitting time is really involved?
4.	What is at stake in the case for the appellant?
5.	Will the resolution of the issues raised have any importance beyond the case at hand?
6.	Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?
7.	If so, can it be justly and practicably cured?
8.	If not, where, in all the circumstances, do the interests of justice lie?

[27] Taking into account the rationale of the decisions discussed above, we have decided to exercise our discretion to consider if the new grounds of appeal can be allowed. We do not perceive any absolute bar to advance a new ground of appeal in light of the aforementioned authorities, although the Court of Appeal Act does not explicitly provide for it. Despite the provisions in section 48 of the Court of Appeal Act which allows amendment of a notice of appeal without leave of the Court up to 14 days before the hearing date, we believe that a new ground of appeal that was not raised in the lower court should only be permitted under exceptional circumstances and for compelling reasons, particularly when a serious error is uncovered.

Explanation for not including and advancing the proposed grounds earlier

21.	 As to why the proposed grounds were not included in the original notice of appeal and further, not advanced in the Court below, we heard from the learned counsel for the appellant that the appellant was unrepresented, unlike those in cases where the appellants were legally represented.  For this reason, the failure to include the proposed grounds in the original notice of appeal and further, not to advance them in the Court below should not operate against the appellant.  

22.	 We consider that the mere fact that the appellant was unrepresented does not explain the failure.  The burden is on the appellant to provide an adequate explanation for not including the proposed grounds in the original notice of appeal and further, for not advancing them in the Court below.  As the Federal Court of Australia observed in the context of change of counsel in Khalil v. Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1134 at [35], “Without more, the fact that there has been a change of counsel is insufficient to justify a grant of leave….” 

23.	 However, this consideration is not determinative of the question of leave.  It must be weighed against the question of whether the proposed fresh grounds have a strong prospect of success, whether the respondent will be prejudiced by the new ground and where the interests of justice lie.  

Prospect of Success of Proposed Appeal

24.	As to the first proposed ground of appeal, in the written submissions, learned counsel for the appellant referred to paragraph 35 of the Tribunal’s reasons and submitted that the Tribunal failed to discharge its statutory task because it failed to ‘fairly and reasonably’ assess the alleged inconsistencies in three ways.

25.	 Paragraph 35 states:

“Second, the Tribunal has concerns about the discrepancy between the applicant’s claim to have suffered a broken arm when he was kidnapped and the lack of any reference to such a fracture in the purported medical certificate, he submitted which instead refers only to a ‘huge swelling and severe tenderness of the left arm’. The Tribunal has considered the explanation he offered for this at the hearing before the previous Tribunal – to the effect that he had felt that his arm was fractured but had not spoken to the doctor and did not know what he had said – and to the representative’s submissions that Bangladesh’s health sector is so undeveloped that such discrepancies are to be expected.  The Tribunal is not satisfied these explanations resolve its concerns about this aspect of his claims and finds that no evidentiary weight can be placed on the medical certificate.” (Underlining added).

26.	 First, the Tribunal asserted there was a ‘discrepancy’ between the appellant’s claim to have suffered as broken arm and the absence of a reference to a fracture in the medical certificate.  There was no discrepancy.  It is entirely consistent for the appellant to have perceived that his arm was broken, and for a medical notice to describe his arm as having a ‘huge swelling and severe tenderness of the left arm”.  For these reasons, it was submitted that there was no basis on which the Tribunal concluded that a medical expert’s external assessment of the appellant’s symptoms was inconsistent with the appellant’s later description of the cause of those symptoms.  According to the learned counsel, this is precisely the sort of incautious use of terms like “discrepancy’ and ‘inconsistency’ that the Court warned about in AVQ15 v. Minister for Immigration and Border Protection [2018] FCAFC 133.

27.	 Secondly, even if it could be said there is any discrepancy between the appellant’s claim and the lack of a reference to a fracture in the medical certificate, any such discrepancy is objectively a minor matter of fact.  The discrepancy, such as it is, is between a description of the symptoms of a severely injured arm and a description of the cause of those symptoms.  According to the learned counsel, as the Secretary recognized, the medical certificate identified that the appellant “had ‘huge swelling and severe tenderness of left arm’ which may be considered symptoms of a broken arm”.

28.	 Thirdly, the Tribunal overlooked the evidence that the appellant’s arm had “a visible non-alignment below the elbow”. This material was highly relevant to the question whether the appellant has given inconsistent evidence in support of his case.   According to the learned counsel, the error is manifest in a failure to actively engage in the fact-finding task because the reasoning fails to adequately descend into a true evaluation of the factual material.

29.	 Fourthly, the Tribunal erred in failing to consider:

(a)	the length of time between the incident and the occasions on which the appellant had been required to give an account of his experience;

(b)	the fact the appellant was recounting traumatic events; and

(c)	the circumstances in which the statements were made.

30.	Fifth, this issue was one of only two alleged inconsistencies that the Tribunal identified in support of its findings that the appellant was not a witness of credit.  Those alleged inconsistencies were consistent cumulatively.  According to the learned counsel, the Tribunal said that the alleged inconsistencies ‘are not minor or marginal aspects of the applicant’s evidence and they go instead to the credibility of his claim to have been a JI activist who was harmed by his political enemies’.  That is – the finding on the broken arm ‘discrepancy’ was an integral part on which the Tribunal’s credibility finding was based.  According to the learned counsel, a fair reading of paragraph [42] of the Tribunal’s reasons indicates that each finding is critical to the Tribunal’s ultimate adverse credibility conclusion. The significance given to the alleged discrepancy regarding the appellant’s broken arm was out of all proportion to the actual significance of that discrepancy in the context of the appellant's claims.

31.	 We have perused the medical certificate issued by Dr Mahabub Abir from Upazilla Health Complex dated 10 December 2013 and are not satisfied that the Tribunal is expected to read more into the doctor’s report that the appellant had “huge swelling ie, severe tenderness of left arm….” and make further inquiry to establish if the appellant had sustained a broken arm.  On the contrary, we uphold the submissions of the learned counsel for the respondent that while there is a discrepancy between the appellant saying that he has a broken arm, and the medical certificate not reporting it, but rather a swelling and severe tenderness of the arm, there is not a huge difference between the words “inconsistency” and “discrepancy” and it was  open to an Administrative Tribunal such as the one under consideration to regard it as a discrepancy.

32.	 Moreover, we accept the respondent’s learned counsel’s submission that one would expect a genuine medical certificate to correctly reflect a person’s medical condition.  Thus, reasonable minds could differ about whether it could be expected that the medical certificate would record the appellant’s claim that he had a broken arm.  We conclude that the Tribunal’s reasoning is therefore not legally unreasonable: Minister for Immigration v SZMDS (2010) CLR 611, 647-648 (Crennan and Bell JJ).  Nor is it a fair reading to suggest that the Tribunal overlooked the previous Tribunal’s comment that the appellant had a “visible non-alignment below the elbow” given that the Tribunal’s concern was that the medical certificate did not record that the appellant had a broken arm.  

33.	The second proposed ground of appeal alleged that the Tribunal’s findings should be quashed because there was no probative material to have found the Tribunal’s conclusion: see Minister for Immigration and Citizenship v SZMDS (supra) at [135] (Crennan and Bell JJ).  According to the learned counsel for the appellant, these findings were simply not opened on the evidence, and they lacked an evident and intelligible justification: see also Minister for Immigration and Citizenship v SZMDS (supra) at [78] (Heydon J) and [130] (Crennan and Bell JJ).  These findings are:

(a)	The AL would have needed to commit significant resources to the planning and execution of an abduction in the circumstances the [appellant] described, including the provision of transport, a safehouse and sufficient personnel to maintain a 24-hour guard on the appellant over three days. 

(b)	Such a project could not have been without some risks to those involved given his claim that they kidnapped him from his own bazaar and returned him there, in broad daylight.

34.	 It was argued that a fair reading of [29, [30] and [42] of the Tribunal’s reasons indicate that each finding is critical to the Tribunal’s ultimate adverse credibility conclusion: Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [76].  The making of a finding of fact, which is a critical step in the ultimate conclusion reached, and for which there is no evidence may constitute jurisdictional error: Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [76].

35.	 We are not satisfied that the appellant has demonstrated that the Tribunal’s ultimate decision at [33-35] is legally unreasonable: Djokovic v Minister for Immigration [2022] FCAFC 3.  As the learned counsel for the respondent pointed out, Marshall J at [21] of the judgment indicated the Tribunal’s concerns about the appellant’s evidence were based on at least four issues:

(a)	the credibility of his claim that the AL would target him for abduction, detention, and assault and then return him to the same place from where he was abducted.  The Tribunal addressed the appellant’s explanation that the AL wanted to provide him with weapons training, and found it lacking in credibility;

(b)	 the discrepancy between the appellant’s claim to have suffered a broken arm and lack of any reference to such a fracture in the medical certificate provided;

(c)	the lack of a credible explanation as to how he managed to avoid harm after his alleged release from hospital in September 2012 until his departure from Bangladesh in April 2013; and

(d)	the incongruity of his father not having been targeted by the police or AL during the appellant’s JI involvement from 2010 to 2013.

36.	 It follows we accept the learned counsel for the respondent’s submission that these matters are all logically distinct from any issues concerning the weight to be given to the medical certificate and provide a sound and unchallenged basis for the Tribunal’s rejection of the appellant’s claims.  Further, contrary to the appellant’s submissions, we accept the learned counsel’s submission that the Tribunal’s “concerns” at [35] of its decision were not a “critical step” in its reasoning, but only one of a number of independent reasons the Tribunal had given at [35-39] of its decision for rejecting the appellant’s claims: see also CRU18 v Minister for Home Affairs [2020] FCAFC 129. In those circumstances the appellant’s complaint about the Tribunal’s reasoning concerning the medical certificate does not rise above a complaint about a wrong factual finding, rather than a point of law and a serious error of law has not been established.

Prejudice to the Republic

37.	 The learned counsel for the appellant argued that the appellant will stand to lose the most because if leave is not granted, he will be returned to Bangladesh.  On the other hand, the respondent will not be prejudiced if leave is granted because the proposed grounds raise pure questions of law and which the respondent will be able to formulate a response as has been done in this case.  In our opinion, while the appellant has made a strong submission in support of the question of prejudice, we must also consider whether granting leave will be in the interest of justice.

Interests of Justice

38.	 As the Court in Eastman v. R [2000] HCA 29; 203 CLR 1 held, the Court will grant leave to advance a fresh ground of appeal only in exceptional circumstances.  Given our finding that the proposed grounds of appeal do not raise serious errors of law and that they do not have a reasonable chance of success, we are not satisfied that this is an exceptional case and that it would be in the interests of justice that leave should be granted to the appellant to amend and advance the proposed grounds of appeal.  

Conclusion

39.	 In the circumstances, the application for leave is refused.

Order

40.	 The final terms of the order of the Court are:

a)	The application for leave to advance two new grounds of appeal is refused. 

b)	The appeal is dismissed.

c)	No order as to costs.	

Dated this 21 day of July 2025.

    
Justice Colin Makail
Justice of Appeal

Justice Rangajeeva Wimalasena

I agree.

President
Court of Appeal