BRF038 v The Republic of Nauru [2017] HCA 44

HIGH COURT OF AUSTRALIA

KEANE, NETTLE AND EDELMAN JJ

BRF038 APPELLANT

AND

THE REPUBLIC OF NAURU RESPONDENT

BRF038 v The Republic of Nauru [2017] HCA 44 18 October 2017 M28/2017

ORDER

1. Appeal allowed with costs.

2. Set aside the order made by the Supreme Court of Nauru on 22 February 2017, and in its place order that:

(a) the decision of the Refugee Status Review Tribunal made on 15 March 2015 be quashed;

(b) the matter be remitted to the Refugee Status Review Tribunal for reconsideration according to law; and

(c) the respondent pay the appellant's costs of the appeal.

On appeal from the Supreme Court of Nauru

Representation

G A Costello and A N P McBeth for the appellant (instructed by Allens)

C J Horan QC with N M Wood 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

BRF038 v The Republic of Nauru

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.