Yesterday the Nauru Supreme Court confirmed that Nauru has no functioning appellate court. Today the High Court of Australia upheld yet another appeal by an asylum seeker from the Supreme Court of Nauru, ordering the matter be redetermined by the Nauruan Refugee Status Review Tribunal.

In December 2017 Nauru terminated the treaty that gave Australian High Court jurisdiction to hear such appeals. The matter will therefore be one of the last, if not the last, matters on appeal from Nauru to be determined by the High Court.

Following the decision, George Newhouse, the Principal Solicitor of the National Justice Project, has called on Australia to ensure that everyone on Nauru, including refugees and asylum seekers placed there by Australia, have access to a functioning appellate court system.

“Nauru terminated the jurisdiction of the High Court, extraordinarily before passing legislation to create a national appeal court. This reflected the Nauru government’s stymie its political opponents who were then seeking to access the Australian High Court to appeal a Nauru Supreme Court decision. Refugees however should not suffer because of Nauru’s dreadful internal politics.

The asylum seeker who won today in the High Court now faces reconsideration of his claim in a country with no functioning appellate court.

Mr. Newhouse has called on Australia to assist Nauru to create a functioning, independent and competent appeal court.

“Australia needs to do two things urgently.

Firstly, assist Nauru to immediately create rules of court and appoint judges for the new Nauru Court of Appeal.

Only yesterday the Nauru Supreme Court in a criminal judgment ( http://www.paclii.org/nr/cases/NRSC/2018/32.html) recognised that no such rules exist and no appeals can be filed in the new court.  This is despite the jurisdiction of the High Court lapsing in March this year.

Secondly, Australia needs to reinforce to Nauru the need to appoint appropriate eminent regional judges to its court of appeal. The track record of Nauru’s existing judges is that almost all of their Asylum decisions have been overturned in the High Court of Australia when appealed. That record speaks for itself.

Mr. Newhouse has further suggested that Australia should remove refugees immediately from Nauru if access to justice cannot be assured.

“Nauru is a sovereign country and Australia cannot and should not dictate how it conducts its internal affairs. What we can do however is remove refugees and asylum seekers from Nauru if basic access to justice cannot be assured. This should be at the forefront of all discussions with the Waqa government who are financed by Australian money derived from the pacific solution.