You are here:
PacLII >>
Databases >>
High Court of Australia - Decisions relating to Nauru >>
2018 >>
[2018] NRHCA 8
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Help
Download original PDF
QLN146 v Republic of Nauru [2018] NRHCA 8; [2018] HCA 42 (11 September 2018)
HIGH COURT OF AUSTRALIA
BELL, KEANE AND GORDON JJ
QLN146 APPELLANT
AND
REPUBLIC OF NAURU RESPONDENT
QLN146 v Republic of Nauru
[2018] HCA 42
11 September 2018
M26/2018
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Nauru
Representation
C M Harris QC with N M Wood for the appellant (instructed by Grindal & Patrick)
C L Symons 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
QLN146 v Republic of Nauru
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and
Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal
affirmed Secretary's determination – Where Tribunal made adverse findings as to credibility – Whether error in Tribunal's
reasons.
Words and phrases – "appeal", "credibility", "error".
Refugees Convention Act 2012 (Nr).
Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967).
- BELL J. I will ask Justice G to give the first judgmendgment.
- GORDON J. The Refugee Status Review Tribunal ("the Tribunal") affirmed a determination of the Secretary of the Department of Justice
and Border Control that the appellant was not recognised as a refugee under the Convention relating to the Status of Refugees (1951)
as modified by the Protocol relating to the Status of Refugees (1967) and was not owed complementary protection under the Refugees Convention Act 2012 (Nr).
- The Tribunal rejected the appellant's claim that he had been targeted by the Sri Lankan authorities for supporting the Liberation
Tigers of Tamil Eelam ("the LTTE"). Under the heading "[t]argeting of the applicant", the Tribunal addressed five separate bases
for scepticism as to the appellant's claims. That section of the Tribunal's reasons for decision concluded in the following terms:
"Taking these matters together the Tribunal ... does not accept that the [appellant] was targeted by the authorities for supporting
the LTTE, as he claims. The Tribunal does not accept hiat his house was visited by army and paramilitary personnel who were searching
for him, that his wife was assaulted by such pe that he went into hiding in Achuveli [sic] to avoid capture or that it was for such
a reas reason that he and his family travelled to Colombo and later left Sri Lanka to go to India, paying large bribes to be able
to do so. The Tribunal does accept that he was arrested and briefly detained in Colombo in December 2007, and that he suffered a
physical assault while in custody, but it finds that his release after a short period is inconsistent with his claim to have been
targeted by the authorities for supporting the LTTE.
In making these findings the Tribunal has had regard to the representative's oral submissions to the effect that people do not always
act rationally, and the fact that they may do things which seem odd does not in itself mean their account is untrue. Even giving
these cautionary remarks their full weight, however, the Tribunal is not satisfied that the concerns about the credibility of the
[appellant's] claims which it put to him at the hearing can be dismissed, as the representative suggested, as simple or mere speculation.
The Tribunal does not accept, in conclusion, that the [appellant] was of any adverse interest to the police, military or other authorities
at the time he left Sri Lanka."
- The appellant unsuccessfully appealed to the Supreme Court of Nauru.
- The appellant now appeals to this Court as of right. The appellant cos that the issu issue arising on appeal is narrow. The appellant
does not challenge each of the five identified bases. The appellant's complaint concerns three paragraphs ([37]-[39]) addressing
the second basis – the Tribunal's scepticism as to the appellant's claim of the means by which he fled his home town in Sri
Lanka and, in particular, a finding by the Tribunal that it was "difficult to believe" that the appellant would have been able to
bribe a local army commander to assist him to flee.
- The appeould be dismissed.
- First, as iays the case, what is said in the Tribunal's reasons must be understood in the context of t of the whole of the reasons.
Examining sentences, or parts of sentences, in isolation is apt to lead to error. Here, the Tribunal's reasons record a number
of reasons for doubting the truth of the appellant's claim that he had been targeted by the Sri Lankan authorities for supporting
the LTTE. Put in different terms, the evidence adduced by the appellant before the Tribunal and the Tribunal's assessment of that
evidence in paras [37]-[39] of the Tribunal's reasons was not dispositive of the review or the decision of the Tribunal.
Second, adverse findings as to credibility are a matter for the Tribunal and considerable caution must be exercised before reaching
the conclusion that adverse findings as to credit expose legal error. As the Tribunal's reasons for decision stated and the transcript
of the hearing before the Tribunal recorded, during the course of the hearing the Tribunal put its concerns about the bribery allegations
to the appellant but the Tribunal was not satisfied that its concerns had been assuaged and could simply be dismissed. - Third, in addition to putting its concerns about the bribery allegations to the appellant during the hearing, the Tribunal addressed
that evidence in its reasons. The Tribunal stated that it did not underestimate the extent of corruption in Sri Lanka, even during
the war years, and that it was willing to accept that the lant may have had access to some wealth. Notwithstanding those matters,
taking into accounccount the totality of the five separate bases identified, the Tribund not accept the appe appellant's claims that
he was targeted by the Sri Lankan authorities for rtinorting the LTTE.
- Fourth, in snce, the appellant contends that the Tribunal should have made further findings that he flee fled his home town in Sri
Lanka and that the appellant would have been able to bribe a local army commander to assist him to flee. The Tribunal was not obliged
to make such findings given its general scepticism as to the appellant's account. To assert that it was so obliged is impermissibly
to invite review as to the merits of its decision.
- Finally, the appellant's argument in this Court focused on an asserted error in the Supreme Court's acceptance that the Tribunal
found that the appellant may have bribed an army commander but its failure to find that the commander would not accept a bribe.
That argument overlooks the Supreme Court's analysis, which is that the Tribunal did not make a precise finding about whether a bribe
was made in circumstances where the inconsistency which the Tribunal identified was "on the one hand hiding out from authorities
and on the other hand making a bribe to an army commander".
- For those reasons the appeal should be dismissed with costs.
- BELL J. I agree.
- KEANE J. I agree.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/nr/cases/NRHCA/2018/8.html