CRI019 v Republic [2017] NRSC 103; Refugee Appeal 101 of 2015 (1 December 2017)

IN THE SUPREME COURT OF NAURU
AT YAREN

APPEAL NO. 101 of 2015

Being an appeal against a decision of the Nauru Refugee Status Review Tribunal brought pursuant to s43 of the Refugees Convention Act 2012

BETWEEN

CRI019 APPELLANT

AND

The Republic of Nauru RESPONDENT

Before: Khan ACJ
Date of Hearing: 12 April 2017
Date of Judgment: 1 December 2017

Case may be cited as: CRI019 v The Republic

CATCHWORDS:

Whether the Tribunal made an error in determining the complementary protection relying on the proposition that detention pursuant to the domestic law is not arbitrary detention. Whether the appellant made a separate claim that he was at risk of physical harm on return to Bangladesh. Whether the Tribunal failed to consider that the Transfer Interview had been accurately transcribed.

Held allowing the appeal on ground one that the Tribunal failed to carry out an assessment of the implications of the law relating to illegal departure.

APPEARANCES:

Counsel for the Appellant: J Gormly
Counsel for the Respondent: A Aleksov

JUDGMENT

INTRODUCTION

1. The appellant filed an appeal against the decision of the Refugee Status Review Tribunal (“the Tribunal”) pursuant to s43(1) of the Refugees Convention Act 2012 (“the Act”) which states:
   

A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

2. The Tribunal delivered its decision on 7 August 2015 affirming the decision of the Secretary for the Department of Justice and Border Control (“the Secretary”) that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
   
3. The appellant filed an appeal in this Court on 18 April 2016 and the grounds of appeal were amended on 6 March 2017. At the hearing of appeal leave was granted to the appellant to rely on the grounds of appeal filed on 8 March 2017.
   

BACKGROUND

4. The appellant is a 25 year old single man from Tangail district, Bangladesh. He is a Sunni Muslim and speaks Bengali.
   
5. After completing two years of secondary education, the appellant worked in agriculture before moving to Dhaka where he worked in a textile factory until May 2013.
   
6. His father is deceased but his mother and two sisters remain in Bangladesh. His two brothers moved to Saudi Arabia for work but one has returned to Bangladesh. The appellant lived at home with his family.
   
7. The appellant supported Islami Chhatra Shibir (“Shibir”), the student wing of Jamaat-e-Islami, and joined the party in 2009. He enjoyed attending meetings with his friends who were members and felt safe in a big group. He worked for Shibir from 2009 to 2011. He arranged chairs and invited people to attend meetings, informing them of the location, time and importance of the meetings. If someone wanted to meet with a particular person he would escort them to the meeting. He was paid for his expenses. This role was performed by about 50 people. When no meetings were held he would attend the Shibir office and discuss how to increase the size of their team. He described himself as an ordinary member.
   
8. The appellant appreciated that Shibir was an Islamic party working for Islam. As he was young he was not expected to earn income. His brothers supported the family financially and the family employed labourers to work on the farm. His family allowed him to work for Shibir.
   
9. The appellant was afraid that Bazlur Rahman Babu, a powerful leader of the Awami League (“AL”) from the neighbouring village, or his associates would discover that the appellant had joined Shibir and would send people to hurt him. The appellant was well known as a supporter of Shibir and Bazlur Rahman Babu’s group did not harm him but tried their best to do so.
   
10. In the Transfer Interview, the appellant said that he refused to undertake an illegal activity on behalf of Shibir, in relation to fighting with other groups. They then threatened to punish him if he decided to leave the party. The threats included that he would be beaten and that he would be killed. He left the village and travelled to Dhaka, thus avoiding harm.
    
11. In a statement made on 5 March 2014 as part of the process for Refugee Status Determination (“RSD”), the appellant said that he was asked to transport weapons for Shibir from Tangail to Dhaka in 2011. He refused to perform this task because he does not support violence and it was a dangerous task. He was shoved and slapped by four or five Shibir members. He verbally resigned his membership and travelled to Dhaka. Members of both AL and Shibir looked for him at his family home. Eighteen months after he moved, members of both AL and Shibir located him in Dhaka at his workplace and asked him why he had fled to Dhaka. A few days later members of both AL and Shibir made a joint visit to his house and threatened to harm him if he did not come with them. He explained in his statement that these parties work together when doing “bad things” because they are both corrupt. The appellant invited them inside and said that he would prepare food for the journey, but in fact fled out the back door. He hid at a friend’s house for one month before departing Bangladesh in May 2013.
    
12. At his RSD interview, the appellant stated that he was approached by Shibir and AL at his workplace in Dhaka. He invited them to his home but escaped by suggesting he would buy food at a nearby shop.
    
13. In a further statement dated 17 April 2015, the appellant also claimed that he was asked to transport weapons, but added that the Shibir members who asked him had been contracted to do the work for AL and were pretend members of Shibir. If he had known this he would not have resigned his membership of Shibir as he was still an ideological supporter. After moving to Dhaka, he was threatened by two members of AL as well as the two pretend members of Shibir. They let themselves into his house and said they would kill him if he did not go with them. He escaped by suggesting he would buy food at a nearby shop.
    
14. Also in the statement dated 17 April 2015, the appellant claimed that his brother who returned from Saudi Arabia after 13 years of working had his passport cancelled by AL. They also fabricated charges of illegal work against him. His brother was a supporter of Shibir and Jamaat-e-Islami. This took place after his RSD interview.
    
15. The appellant told the Tribunal that the next day they came to his house to repeat the demand and also asked him to join AL. He was first approached in the Shibir club house and went home to tell his parents. He did not warn his fellow Shibir members about infiltrators and does not know why he was targeted. He was only asked to transport one gun, not several weapons as he had earlier claimed. He clarified that he did not formally cancel his membership of Shibir but simply told his friend and he office manager. He remained a supporter.
    
16. The appellant told the Tribunal that in April 2013 he was approached by two AL members in Dhaka at his workplace. He was threatened by them because he did not transport the weapon and because he had not joined their party. They asked him to go back to the village and work for them but he feared that he would be asked to undertake further illegal activities. Seven to ten days later they came to his house and threatened to kill him if he did not join them. He asked to go to the shop to get something to eat for them and also to go to the factory to let them know he would be leaving. The two men wanted to leave straight away but relented and escorted him to the shop. He managed to escape on the street.
    
17. The appellant told the Tribunal that AL may have been looking for him because he reported to the Shibir local office that he was asked to transport a weapon and Shibir had reported it to the police.
    
18. The appellant told the Tribunal that the charges against his brother were for possession of an unlicensed gun or pistol and for drinking alcohol. The police released him on bail because the charges were false. He received legal assistance. The brother also used the services of an agent to have his passport renewed but when it was returned his visa page was missing. He believes that this was the work of high level AL political leaders.
    
19. The appellant produced a letter from Shibir signed in 2014 that indicated that he was a member.
    
20. The Tribunal found that the appellant departed Bangladesh in October 2012. He travelled by boat to Indonesia without travel documents. In late 2013 he departed Indonesia by boat and was intercepted by Australian authorities. He arrived on Christmas Island on 14 December 2013 and was transferred to Nauru on 19 December 2013.
    
21. The appellant fears that he will be imputed with a political opinion in opposition to AL because of his lack of co-operation with them. He also fears harm as a person who left Bangladesh illegally and as a failed asylum seeker.
    

APPLICATION TO THE SECRETARY

22. On 8 January 2014, the appellant attended a Transfer Interview.
    
23. On 5 March 2014, the appellant made an application to the Secretary for recognition as a refugee and for complementary protection under the Act.
    
24. On 23 January 2015, the Secretary made a determination that the appellant is not a refugee and is not owed complementary protection.
    

APPLICATION TO THE TRIBUNAL

25. The appellant made an application for review of the Secretary’s decision pursuant to s 31(1) of the Aich provides:ides:
    

A person may apply to the Tribunal for merits review of any of the following:

1. a determinermination that the person is not recognised as a refugee;
   
2. a decision to decline to make a determination on the person’s application for recognition as a refugee;
   

100. a decision to cancel a person’s recognition as a refugee (unless the cancellation was at the request of the person).
     

4. a determination that the person is not owed complementary protection.
   

26. On 17 April 2015, the appellant made a statement and on 25 May 2015 his lawyers, Craddock Murray Neumann, made written submissions to the Tribunal.
    
27. On 3 June 2015, the appellant appeared before the Tribunal to give evidence and present his arguments with his representative and an interpreter in Bengali and English languages.
    
28. The Tribunal handed down its decision on 7 August 2015 affirming the decision of the Secretary that the appellant is not recognised as a refugee and is not owed complementary protection under the Act.
    

THIS APPEAL

29. The appellant filed three grounds of appeal which are:
    
    1. The Tribunal erred in law in its consideration of whether the appellant was owed complementary protection by failing to ask itself the right question, namely whether Nauru’s international obligations can be breached by detention that is pursuant to the domestic law of the country of return.
       
    2. The Tribunal erred in law by failing to consider an integer of the appellant’s claim for complementary protection, namely that he faced a real risk of physical harm on return to Bangladesh as a result of the Prime Minister’s statement that there would be punishment of those who returned after departing illegally.
       
    3. The Tribunal erred in law in failing to recognise or determine a substantive issue arising on the material and evidence before it, that is, whether the Transfer Interview document might be an inaccurate description of the English translation of what the appellant had said in the transfer interview in Bengali.
       

SUBMISSIONS

30. In addition to the submissions filed by the appellant and the respondent, they also made oral submissions which were of great assistance to me and I am indeed very grateful to both counsel.
    

CONSIDERATION

Ground 1

31. The appellant submits that the Tribunal erred in its application of the Act by failing to ask the right questions as to whether Nauru’s international obligations can be breached by detention that is pursuant to the domestic law of the country of return^[1].
    
32. The appellant submits that the Tribunal considered^[2] a claim made by the appellant’s advisor that he was at risk of harm in the form of ‘arbitrary detention’ amongst other harms because 8 days before the Tribunal’s hearing, the Prime Minister of Bangladesh made a statement that:
    

“Punishment will have to be given to those who were moving from the country in an illegal way.”^[3]

33. The appellant submits^[4] that the Tribunal concluded that arbitrary detention claims should be rejected because it stated at [41]:
    

“...if a citizen breaks the law and is detained it is not arbitrary detention. Persecution for breach of law is not arbitrary. The Tribunal does not accept that the applicant would be punished outside the law and arbitrarily detained because of his illegal departure.”

34. The appellant submits that the legal analysis is contrary to s.4(2) of the Act wherein it is stated that a person must not be returned in breach of Nauru’s obligations under International Covenants on Civil and Protection Rights (ICCPR). Article 9 of ICCPR states:
    

“No one shall be subjected to arbitrary arrest or detention”

35. The appellant submits that UN Human Rights Committee^[5] concluded that:
    

“An arrest or detention may be authorised by domestic law and nonetheless be arbitrary. The notion of ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”

36. The appellant submits^[6] that the Tribunal’s statement in its decision at [41] that: “.....There is however no evidence of anyone being persecuted as a result of these warnings...”should not read as an independent basis for the Tribunal’s treatment of the claim; and that the Tribunal ultimately relied on its understanding that a detention for a breach of domestic law cannot be arbitrary is based on a Tribunal member’s recognition at the hearing that it was probably ‘too soon to know what has happened’^[7] and the Prime Minister ‘might influence something’^[8]. The appellant submits that the Tribunal’s analysis is an error.
    
37. The respondent submits that there is no suggestion that Bangladesh law in question was not serving a reasonable State objective; and that there being no issue about the reasonableness of the law – the Tribunal’s statement should be understood as a response to the issue advanced in the review whether persecution and imprisonment under Bangladesh law was persecution. The respondent submits that understood in this context and read fairly, the statement in [41] is an orthodox disposition of this claim^[9].
    
38. In its oral submissions, the respondent concedes that what the Tribunal had stated at [41] in terms of the general principle may be a little too narrow, however, it has to be read fairly; and with respect to the argument that the punishment may be disproportionate to the crime. The respondent submits that the Tribunal made a finding that:
    

“There was no evidence of anyone being persecuted as a result of these warnings.”

The respondent submits that seen in that factual context the statement made by the Tribunal was correct.

39. In relation to the issue of ‘independent basis’ about detention pursuant to the law, the respondent submits that the appellant accepts that if there is an independent finding then this matter should not be remitted on this ground.
    
40. The respondent submits that the conclusion at [41] that: “There is however no evidence of anyone being persecuted as a result of these warnings”; is an independent finding. The respondent further submits that there was no suggestion that the appellant would be a special case in that he would be persecuted whilst others may not; that since the hearing on 2 June 2015 and the decision on 7 August 2015 there was still no evidence of anyone being persecuted which led the Tribunal to say, ‘in any event’.
    
41. The respondent submits that it is the appellant’s contention: and
    
    1. That the words ‘in any event’ means ‘whether or not’;
       
    2. That the words ‘in any event’ is not an expression of an independent finding.
       
42. The respondent submits that if the Tribunal meant to say ‘whether or not’ it would have said so; and the Tribunal by using the words ‘in any event’ is an independent finding. The respondent submits that the appellant is asking this Court to do a reconstruction of what the Tribunal had said, rather than what has been said.
    
43. The appellant in reply submits that the Tribunal stated that being detained under domestic law cannot be arbitrary detention is a general statement; and in this matter the Tribunal did not carry out an assessment of the law relating to illegal departure.
    
44. It is the respondent’s contention that the hearing took place on 2 June 2015 and the Tribunal delivered its decision on 7 August 2015; and yet there was still no evidence of anyone being persecuted. This submission presupposes that the Tribunal was actively seeking information in the two-month period as to whether anyone has been persecuted. There is nothing in the Tribunal’s decision or the record to indicate that it had made attempts to obtain any evidence after the hearing date. At BOD page 154, the following exchange occurred between a Tribunal member and the Appellant’s representative:
    

MS BODDISON: I was just going to say that I’m aware that the Prime Minister has made some statements, but there doesn’t seem to be any evidence that suggests that anybody has actually been prosecuted for leaving illegally.

MS LEE: Yeah. I guess so. In that last week, so ---

MS BODDISON: Yeah. It was the week before. And some have been sent back, but even so, it’s probably too soon to know what ---

MS LEE: Yeah.

MS BODDISON: --- has happened. But, I suppose, up until that point there doesn’t seem to be material that suggests that people were being prosecuted for illegal departure.

45. From this exchange it is quite apparent that the Tribunal did not make any effort to obtain any evidence after the hearing and relied on what transpired at the hearing.
    
46. In WZAPN v Minister for Immigration and Border Protection and Anor^[10] North J stated at page 478 as follows:
    

“When assessing whether detention pursuant to a law of general application amounts to persecution, the proper approach is to consider: (i)whether the detention would be lawful, in the sense of being pursuant to a domestic law, and also by reference to the object of that law and whether a detention was proportionate to that object; (ii)whether the detention, whilst perhaps lawful would be arbitrary, and if the law is applied arbitrarily, it may not be appropriate and adopted in the sense of proportionate in the means used to achieve its object; (iii)whether the detainee would be treated with humanity and inherent dignity for the person.”

47. I accept that the Prime Minister’s statement was quite recent and at the date of the hearing it was even not enacted as the law of Bangladesh but notwithstanding that the Tribunal was still required to carry out an assessment of the implications of the threats relating to illegal departure in accordance with the principle stated in WZAPN v Minister for Immigration and Border Protection and Anor before it made its finding at [41] that: “Prosecution for breach of law is not arbitrary.”
    
48. The Tribunal in my respectful opinion failed to do so. In the circumstances the appellant succeeds on this ground of appeal.
    

Ground 2

49. The appellant submits that in addition to the claim of arbitrary detention, a claim for physical harm was also made by the appellant’s legal representative^[11]. The claim by the legal representative was put as follows:
    
    1. Miss Lee: Yeah. So as a result of the Prime Minister’s recent warnings of

unspecified punishment, we submit that our client may be eligible for complementary protection as if he is arbitrary detention and possible physical harm if he is returned.

2. Miss Lee: I do believe that you can be eligible for complementary

protection if the punishment is disproportionate to the crime, and it will be our submissions, the situation that returning to the country and being detained, and possibly physically harmed, is disproportionate to the crime.

50. The appellant submits that the claim for physical harm was put in as a separate claim and the Tribunal failed to discharge its review obligations in addressing the claim.
    
51. The respondent submits that^[12]:
    

“...the highest point of these reports for the appellant is that they indicate that the Prime Minister has threatened some kind of unspecified punishment. There was no evidence of persons in the appellant’s position being threatened with physical punishment, or any other kinds of harm. In this context, it was appropriate for the Tribunal to infer that the kinds of punishment contemplated by the Prime Minister was prosecution for breach of the law; that it was this claim to which the Prime Minister responded in paragraph 41 of its reasons.”

52. The respondent submits that the appellant is attempting to erect a dichotomy between ‘detention and other kinds of harm’ and in the absence of any evidence of harm the Tribunal was justified in growing the inference that such punishment would be according to the law. The respondent further submits that it follows that there was no argument to which the Tribunal failed to respond and ground two must be dismissed.
    
53. The issue for determination is whether there were separate claims of detention and physical harm. As can be seen in my reasons in relation to ground one the detention also includes ‘whether the detainee would be treated with humanity and inherent dignity for that person’ which also includes physical harm.
    
54. In the circumstances I find that the Tribunal did not have to deal with the claim of physical harm as a separate claim and therefore this ground of appeal is dismissed.
    

Ground 3

55. The appellant submits that the Tribunal erred in failing to recognise or determine a substantive issue arising on the material, being whether the Transfer Interview document was an accurate transcription of what the appellant had said in the Transfer Interview in Bangla^[13].
    
56. In the Transfer Interview^[14] the appellant is alleged to have said ‘I was working for the political party Chutra Shibias party. They asked me to do illegal activities and then I said I cannot do that...’. The appellant submits that he denied saying that several times during the Tribunal hearing at the Transfer Interview.
    
57. The appellant submits^[15] that the Tribunal’s decision does not show that the Tribunal gave any consideration as to whether the Transfer Interview was correctly transcribed; that the Tribunal simply assumed that the Transfer Interview was a correct transcription.
    
58. The respondent submits that the accuracy of the transcription of the Transfer Interview was material and therefore engaged the Tribunal’s review obligation because of the centrality of the appellant’s credibility finding based on the Transfer Interview^[16].
    
59. The appellant further submits that the Tribunal’s finding at [36] shows that the Tribunal misunderstood the claim as one of misinterpretation when the appellant claimed that he did not say what was in the Transfer Interview about the ‘Shibir Party’.
    
60. The respondent submits^[17] that there was an extensive discussion during the hearing before the Tribunal and it pointed out that the Transfer Interview was conducted with an interpreter, and that the appellant had signed the document as being a true summary of the interview. The discussions took place at BOD pages 121- 126, 131 – 132.
    
61. The respondent further submits that the Tribunal was alive to the arguments in making its decision and responded to the arguments at [31], [32] and [36] of its reasons^[18]. The respondent therefore submits that the appellant is wrong to assert that the Tribunal did not give any consideration to whether the Transfer Interview had been accurately transcribed^[19].
    
62. I am satisfied that the Tribunal gave consideration as to whether the Transfer Interview was accurately recorded as at [32] where it states:
    

“...the representative said that the evidence provided in the Transfer Interview Record about why the applicant left Bangladesh was incorrect. The interview had been conducted in a limited time period and without a representative present.” in response to the representative’s submission [BOD page 153] where it is stated: “...my client maintains that he never said that’s Shibir made him fight with other groups...”.

63. In the circumstances this ground of appeal has no merit and is dismissed.
    

CONCLUSION

64. Under s44(1) of the Act, I make an order remitting the matter to the Tribunal for reconsideration.
    

DATED this 1 day of December 2017

Mohammed Shafiullah Khan
Judge

---

^[1] Appellant’s written submissions [28].
^[2] Appellant’s written submissions [29].
^[3] Two articles containing this quote are cited by the Tribunal at CD 166, 2.
^[4] Appellant’s written submissions [30],

^[5] United Nations Human Rights Committee, General Comment No. 35: Article 9 (liberty and security of person), 16 December 2014, UNdoc CCPR/C/C/35, [12].
^[6] Appellant’s written submissions [33].
^[7] BD, TR54/13.
^[8] BD154, TR54/23.
^[9] Respondent’s written submissions [12].
^[10] [2014] FCA 947 at [47], [51].
^[11] BOD page 154.
^[12] Respondent’s written submissions [20].
^[13] Appellant’s written submissions [42].
^[14] BOD page 10.
^[15] Appellant’s written submissions [53].
^[16] Appellant’s written submissions [54].
^[17] Respondent’s written submissions [25].
^[18] Respondent’s written submissions [25].
^[19] Respondent’s written submissions [26].