FEDERAL COURT OF AUSTRALIA
CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The orders made by the Federal Circuit Court of Australia on 16 March 2016 be set aside and in lieu thereof it be ordered that:
(a) Order absolute in the first instance for a writ of certiorari directed to the Second Respondent setting aside its decision in case number 1413961 made on 24 September 2015.
(b) Order absolute in the first instance for a writ of mandamus directed to the Second Respondent in case number 1413961 requiring that it determine according to law the Applicant’s application for a review of the decision made by the delegate on 23 July 2014.
(c) Direct that the Second Respondent be differently constituted for that purpose.
(d) The First Respondent pay the Applicant’s costs as taxed or agreed.
3. The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1. Introduction
1 The Appellant is a citizen of Fiji. He was born on 4 September 1992. On 3 March 2014, whilst present in Australia on a business visa, he sought a protection visa. He claimed that he was a member of a particular social group in Fiji, homosexuals, and that he feared harm in Fiji as a result of his membership of that social group.
2 The Appellant relied upon seven separate incidents in Fiji to make good his claim that he had a well-founded fear of persecution on account of his sexuality. These were: (a) that he had not been able to obtain employment in Fiji; (b) that he had been raped by his uncle in 2005; (c) that he had been repeatedly assaulted and humiliated at the hands of his uncles and cousins; (d) that he had been assaulted by police and military personnel at the Oriles Nightclub in Suva on 2 January 2013; (e) that he was assaulted at another nightclub, the ‘Icebar’, on 26 July 2013; (f) that he had been assaulted at the Nabua markets on two occasions in 2012 and 2013 respectively; and (g) that he had been beaten by his neighbour on 14 April 2013.
3 A delegate of the Minister accepted, for the purposes of Article 1A(2) of the 1951 Refugees Convention as amended by the 1967 Refugees Protocol, that homosexuals in Fiji were a social group. The delegate was also satisfied that the harm feared by the Appellant was sufficiently serious, systematic and discriminatory to meet the requirements of then ss 91R(1)(b) and (c) of the Migration Act 1958 (Cth) (‘the Act’). However, the delegate concluded that the Appellant did not have a well-founded fear of persecution. The delegate arrived at this conclusion largely accepting most, but not all, of the Appellant’s account of what had occurred.
4 The Appellant then sought a review of the delegate’s decision before the Refugee Review Tribunal, the review functions of which having been subsequently transferred to the Administrative Appeals Tribunal (‘the Tribunal’) by the date of the hearing. On 25 September 2015, the Tribunal affirmed the delegate’s decision. It will suffice for now to summarise the Tribunal’s conclusions by saying that whilst it accepted the broad thrust of the Appellant’s evidence, it did not think that the incidents, in context, were very serious.
5 The Appellant then sought judicial review of the Tribunal’s determination on 13 October 2015 by means of a proceeding in the Federal Circuit Court. His originating application in that Court disclosed six grounds of review. It is not necessary to set these grounds out as they are largely subsumed in the grounds pursued before this Court on the Appellant’s supplementary notice of appeal.
6 The judicial review application came on for hearing before Judge Street on 16 March 2016 who, after a hearing, dismissed the application with costs of $5,800 on the same day. It is from these orders that the Appellant now appeals.
2. The Appeal
7 The Appellant’s supplementary notice of appeal seeks to reventilate the six grounds rejected by Judge Street. In addition, two grounds are now pursued that there was a reasonable apprehension that Judge Street was biased against the Appellant or that his Honour was, in fact, actually so biased.
8 For the reasons which follow, the bias grounds fail but the Appellant is entitled to succeed on the basis of one of the grounds pursued at first instance. The appeal will, therefore, be allowed with costs.
3. The six grounds pursued in the Federal Circuit Court (and in this Court)
9 Each of the six grounds pursued at first instance corresponded with a ground of appeal in this Court. It is, therefore, convenient to deal with each ground in this Court with the corresponding ground in the Court below.
The Nightclub and Lockup Incidents (Federal Circuit Court Ground 1; Federal Court Ground 3)
(i) The Incident at the Oriles Nightclub
10 The Tribunal largely accepted the Appellant’s account of what had happened but sought to diminish its significance. It is useful, in the first instance, to set out in a summary way what the Tribunal found on this issue and only then to set out its actual reasons. The Tribunal found this:
‘Qauri’ is a pejorative word in Fijian for a gay man;
Oriles is a ‘straight’ night club in Suva but is more or less ‘gay-friendly’;
the Appellant, during this period, attended Oriles around 3 or 4 times per year;
the Appellant was at Oriles on the evening of 2 January 2013 and left in the company of two gay friends at about 2 am;
they left happy and laughing and were making their way to a bus stop;
a police patrol passed by but they were oblivious to it;
the police shouted out:
‘You Qauri. Shameless bastards. Go home’.
the Appellant and his friends did not go home at this point but instead called back to the police to ‘shut up’ together with words to the effect that the police should mind their own business;
at this point, the police car stopped, the Appellant and his friends fled into the night and the police gave chase;
the police caught the three and made them kneel on the ground demanding that each say:
‘I am a shameless Qauri and I ask for mercy for my bad behaviour’.
the Appellant refused to say this and was then slapped sufficiently hard that his ears rang;
he then agreed to say and did say ‘I am a shameless Qauri and I ask for mercy for my bad behaviour’; and
he was then told to run off which he and his friends promptly did.
11 This account is set out in [14]-[15] of the Tribunal’s reasons which are annexed at the end of these reasons for the sake of completeness.
12 By way of discussion of these facts, the Tribunal then went on to say at [16]:
‘I asked [the Appellant] if he and his friends might have been a little drunk and disturbing the peace when they left the bar laughing and oblivious, as he described it. [The Appellant] claimed he and his friends were not making any noise. I put to [the Appellant] that the police officers’ behaviour seems to have been heavy-handed on that occasion, starting with the abusive language they used when first telling him and his friends to go home. I put to him that whilst some anti-gay prejudice came into play, the main thing the police wanted him and his friends to do was to go home quietly and quickly. Looking at his many statements and testimonials overall, this seemed to have been an isolated incident. [The Appellant] then said this kind of thing happened often and that he had simply not documented everything that ever happened. I put to him that from the look and layout of his statutory declarations, he appeared to have exhaustively laid out his claims about incidents relevant to this case. In response, he said, “Yes.” On the evidence before me, the Oriles incident in January 2013, though involving mistreatment and an element of anti-gay prejudice was quite isolated, much of it happening because [the Appellant], according to his own evidence, told a police officer to “shut up”, arguably provoking the police to chase and catch him and his friends. On the one hand the police slapped [the Appellant] and called him a Qauri, which is not reasonable behaviour; on the other hand, the police let him and his friends go, to return to their homes which, on the evidence, is where the police expected people to be in Suva at 2:00 in the morning. I give some weight in this matter to the fact that this incident did not stop [the Appellant] going to Oriles with his friends; as noted, he said he stopped going there because he moved for a while to stay with his sick aunt.’
13 The Tribunal’s ultimate conclusion was at [30]:
‘I accept that [the Appellant] was mistreated in the manners described in the Oriles and Icebar incidents. I accept that anti-gay prejudice came into play on both occasions. However, I find that these episodes arose in individual, arguably unique and isolated circumstances, both involving nightclubs where drinks are consumed and tempers and voices are sometimes raised, in which [the Appellant] respectively debated with a group of drunk men and told a police officer to shut up. I give no weight to either of these episodes and I give no weight in this matter to [the Appellant] having been placed in overnight lock-up after the second incident.’
(emphasis added)
14 It will follow from this that the Tribunal’s ultimate conclusion was that it gave no weight to the incident at the Oriles Nightclub. The reference to the ‘arguably unique and isolated circumstances’ in [30] needs to be read in a context which includes the Tribunal’s own statement at [18]:
‘…I accept on the evidence before me that homophobic attitudes exists [sic] amongst police and soldiers in Fiji and that these can come to the surface during episodes like the two bar-related incidents [the Appellant] has described.’
15 Although the Tribunal’s dispositive reasoning is spread over the two paragraphs just set out ([16] and [30]), it appears to have these significant features:
the incident was isolated (in the sense, we think, that only two of the seven incidents relied upon by the Appellant involved the police);
‘much’ of the incident had happened because the Appellant had told the police to shut up and this ‘arguably provoked’ the police first to chase, and then, to capture the Appellant and his friends;
it was unreasonable for the police to have slapped the Appellant and to have called him a Qauri; but
they had, when all was said and done, let him go;
he had not stopped going to Oriles because of the incident;
this isolated incident was ‘arguably’ unique because it happened at a nightclub where drinks were served;
ultimately, it was the Appellant who told the police to shut up; and
accordingly, the incident would be given no weight.
16 The difficulty with this reasoning is that it succeeds in diminishing the weight to be given to the incident at Oriles to nothing only at the price of omitting any treatment of the most serious part of the Appellant’s claim. This was his claim that he had been forced, on pain of being assaulted a second time, to kneel and say ‘I am a shameless Qauri and I ask for mercy for my bad behaviour’.
17 The Tribunal’s treatment of the Appellant’s case at [16] and [30] suggests that it understood itself to be dealing with a situation where the Appellant had told the police to shut up, where they in turn had given chase and caught him before slapping him, calling him a Qauri and telling him to run off.
18 The Tribunal’s factual treatment of the incident at Oriles at [14]-[15] proceeded upon the assumption that the incident had happened as the Appellant suggested which, importantly, included him being made to kneel, confess himself a shameless Qauri and beg for mercy. But the Tribunal’s analysis at [16] of whether those facts amounted to persecution for a Convention reason did not deal with this central part of his case. Nor did the Tribunal deal with this at [30] whilst disposing of the claim. The Appellant’s claim of being made to kneel and humiliate himself to avoid being assaulted a second time was a claim of persecution which arose ‘squarely’ from the account given by him in the sense that word is used in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18-19 [58]-[59] per Black CJ, French and Selway JJ. Consequently, to fail to deal with it was a straightforward constructive failure to exercise jurisdiction.
19 This was not, it is true, quite the argument which was advanced before Judge Street. Ground 1 before his Honour was that the Tribunal had failed to take into account a relevant consideration, namely, the Oriles bar incident as a consequence, so it was said, of the Tribunal’s decision to afford it no weight. But the relevant consideration here included a squarely raised claim of persecution.
20 As the Full Court noted in NABE (at 17 [55]), a failure to make a finding on ‘…a substantial, clearly articulated argument relying upon established facts’ can amount to a constructive failure to exercise jurisdiction and as a failure to carry out the review required by the Act. It follows that the Tribunal cannot discharge its obligation to conduct a review unless it deals with the integers of an applicant’s claims, which here arose from the Oriles bar incident.
21 For that reason, we would accept that the present argument is within Ground 1 in the Federal Circuit Court and Ground 3 in this Court.
22 Judge Street rejected the argument as follows (at [16]):
‘It is apparent from the Tribunal’s identification of the mistreatment of the applicant in the two incidents that the Tribunal was referring to the incidents in the manner described by the Tribunal. That manner described by the Tribunal identified the isolated nature of those two incidents. In those circumstances, it was open to the Tribunal to determine what weight to give the episodes. The reference to the Tribunal in para.30 saying it gives no weight to either of these episodes cannot be said to lack an evident and intelligible justification. Ground 1 is in reality an attempt to cavil with the merits of the review that it was a matter for the Tribunal to determine. Ground 1 fails to make out any jurisdictional error.’
23 We do not agree. The treatment by Judge Street does not engage with the reasons of the Tribunal. Consequently, his Honour failed to discern the deficiency identified above.
24 Ground 3 in the supplementary notice of appeal is therefore made out.
25 The same ground also encompassed two other incidents. These were described as the Icebar Club incident and the overnight lock-up incident. These were connected.
(ii) The Icebar and lock-up incidents
26 As to the Icebar incident, the Tribunal found that:
the Icebar is a ‘straight’ bar in Nadi but is ‘gay friendly’;
in July 2013, the Appellant attended the Icebar one evening (which he did from time to time);
he was having a drink with a friend;
he was wearing tight jeans and a butterfly vest which, according to the Tribunal, is a kind of butterfly printed singlet;
some men in the bar started shouting abuse at him because of his tight jeans and the butterfly vest. These men were drunk;
the Appellant approached the group and told them not to judge him whereupon they told him to go away;
the Appellant stood his ground and did not go away;
a scuffle ensued and punches were thrown;
his friend attempted to pull him from the mêlée to safety;
the police arrived and took the other men’s side of the argument;
the Appellant told the police that the fight was not his fault;
a police officer then punched him and called him a Qauri; and
the police then took him to an overnight lockup where he stayed until the next afternoon.
27 The Tribunal’s treatment of this was at [17], the relevant portion of which was as follows:
‘…In his account, the police acted prejudicially towards him, letting his drunk straight detractors go. I put to [the Appellant] that the episode was nevertheless isolated and peculiar to immediate individual circumstances that included him trying to reason with drunks. I put to him, on the basis of his having been able to go to the bar on many other occasions when this kind of thing did not happen, that the only behaviour he might have to modify in the event of return to Fiji is trying to reason with drunk people when they say hurtful things about him. In reply, he said that local people do not go to Icebar often and that he mostly encounters visitors from overseas there. His response added to the impression that this was an isolated incident. None of his evidence suggests that he was mistreated during overnight lock-up or charged or released on any onerous conditions.’
28 Its final conclusion was expressed at [30] which we have already set out above.
29 The Tribunal’s analysis at [30] failed to deal at all with the Appellant’s claim to have been punched by the police and called a Qauri. So far as we can see that was the central part of his complaint. The Tribunal’s decision that it would afford the Icebar incident no weight, therefore, occurs in a context in which the Tribunal omitted from its analysis the incident’s central feature, namely, the assault and abuse of the Appellant by police.
30 This generates error for the reasons given in relation to the Oriles incident.
31 Insofar as the Tribunal’s decision to afford no weight to the fact that the Appellant had been placed in the police lock up is concerned, the situation is more complex. Unlike the Oriles and Icebar incidents, the Tribunal dealt with the Appellant’s claim to have been placed in the lock-up. It was explicitly part of its analysis at [17] and [30]. In arriving at its conclusion, it did not omit, as it did in the case of the Oriles and Icebar incidents, reference to the central features of the Appellant’s claim.
32 Accordingly, we do not think the Appellant’s argument is made good in relation to his being placed in the lock-up.
Failure to consider cumulative harm (Federal Circuit Court Ground 2; Federal Court Supplementary Notice of Appeal Ground 4)
33 This ground of appeal was not well drawn. It was as follows:
“His Honour’s decision should be set aside since his rejection of Ground 2 ignores Appellant’s submissions and the binding authority thus it resulted in his Honour’s failure to exercise his jurisdiction.”
(errors in original)
34 We propose to treat this as a contention that Judge Street erred in not acceding to ground 2 of the amended application in the Federal Circuit Court.
35 Ground 2 was as follows:
“The Administrative Appeals Tribunal made jurisdictional error in that it failed to consider all the harm suffered by the applicant cumulatively in considering whether there is a serious risk that the applicant will suffer serious harm”
(errors in original)
36 Particulars were also provided:
“Although the Tribunal referred in [26] at CB 162 about considering the claims separately and cumulatively and in [37] at CB 163 to considering all the facts in the case, it did not do that cumulatively.
The Tribunal had treated the incidents as isolated, and appears to deal with them in isolated manner from the other incidents:
(i) [16]-Oriles Incident (CB 159);
(ii) [17]-Icebar Incident (CB 160);
(iii) [29]-Aunt’s abuse (CB 162];
(iv) [30]- Oriles and Icebar Incidents (CB 162); and
(v) [11] & [28] at (CB 158 & 162 respectively)-Abuse from all three uncles and their sons.
Nowhere does it appear that the Tribunal went through the process of assessing various harm of different nature cumulatively to consider whether they constitute serious harm. The Tribunal used the word “significant harm” as different from “serious harm” indicating some misunderstanding on the part of the Tribunal in the sense of requiring each of the incident of harm to be serious harm on its own.”
(errors in original)
37 At [26] the Tribunal explicitly said that it had ‘considered all of [the Appellant’s] claims separately and cumulatively’ and at [37] it said that it ‘considered all the facts of this case’. The Appellant’s submissions about this were difficult to follow. However, the most plausible interpretation of them is as an argument that the Tribunal explicitly said that it was going to treat specific incidents such as the Oriles Nightclub incident as being isolated. Therefore, the Tribunal could not, on the one hand, treat an incident as isolated and then, on the other, say that it had dealt with all of the claims cumulatively.
38 However, this is not logical. It is possible to treat an incident as isolated and yet consider its impact as part of a cumulative analysis. There is therefore nothing in this ground. Judge Street rejected it at [17] and was correct to do so.
39 We would dismiss Ground 4 of the supplementary notice of appeal.
Modification of Behaviour (Federal Circuit Court Ground 3; Federal Court Ground 5)
40 The Appellant submitted that the Tribunal had erred by adopting a line of reasoning which, in substance, required the Appellant to modify his behaviour. In doing so, the Appellant drew upon Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (‘S395’) to which might be added Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 (‘SZSCA’).
41 S395 was a case in which the Tribunal accepted that it was not possible for the protection visa applicants to live openly as homosexuals in Bangladesh but went on to find that because they had conducted themselves discreetly there was no reason to suppose that they would not continue to do so if returned to Bangladesh. This was held by a majority of the High Court to have involved error.
42 In SZSCA, the ratio decidendi of S395 was said by four Justices to be that the Tribunal in so reasoning ‘had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided’: see SZSCA at 325 [17].
43 In this case, the particular part of the Tribunal’s reasons with which the Appellant took issue was [17] which dealt with the Icebar incident and which is set out above. The Appellant also took issue with Judge Street’s reasons at [20] and [21] in assessing that portion of the Tribunal’s decision. The critical part was the Tribunal’s statement that ‘the only behaviour he might have to modify in the event of return to Fiji is trying to reason with drunk people when they say hurtful things about him’.
44 Of course, the ‘hurtful things’ which were said about the Appellant were the abuse related to his manner of dress (tight jeans and a singlet with butterflies on it). What the Tribunal therefore concluded was that if the Appellant did not respond to abuse directed at him because of the clothing he was wearing there would not have been a problem.
45 If one can permissibly draw the link between what the Appellant was wearing and his sexuality then the Tribunal may well be seen as having required the Appellant to endure, in silence, abuse directed to him on account of his homosexuality. We are inclined to think that such a link can indeed be drawn. The Appellant was wearing tight jeans and a singlet with butterflies on it; when the abuse was first directed at him he told the men in question not to judge him; when the police turned up they called him a Qauri. What the Appellant was wearing and its capacity to engender sexuality based abuse from others seems to have been at the heart of the incident.
46 Perhaps most importantly, the Tribunal did not proceed on any other basis than that the abuse was directed at the Appellant because of his sexuality.
47 Paragraph [17] does appear, therefore, to require the Appellant not to respond to abuse directed at him because of the expression of his sexuality constituted by his clothing. On one view, this might bring the matter within S395. However, SZSCA holds that S395 stands for the proposition that the Tribunal in that case had diverted itself from the question of whether the applicant would face a real risk of persecution on a Convention ground by erroneously focussing instead on whether the harm in question might be avoided.
48 In this case, the Minister submitted that the Appellant’s argument needed to be assessed alongside [31] of the Tribunal’s reasons (the Minister erroneously referred to [33] but this was clearly a typographical error):
‘I accept that there continues to be some societal and institutional discrimination in Fiji against people with LGBTI sexual orientations and that this can surface sometimes with or without any perceived “provocation”. Overall, however, I am not satisfied that [the Appellant] would need to suppress his sexual orientation or alter his behaviour, such as by changing his manner or dress, in Fiji in order to avoid persecution.’
(emphasis added)
49 Here it could be seen, so the Minister’s argument ran, that the Tribunal had addressed itself to the question identified in SZSCA as the correct one.
50 In our opinion, this submission should be accepted. It is clear, despite what was said in [17], that the Tribunal did ask itself the correct question which was whether the Appellant would need to change his behaviour to suppress the appearance of his sexual orientation. It answered this question in the negative.
51 There may be a tension between the Tribunal’s statements at [17] and those at [31]. Indeed, it is not difficult to imagine that arguments might have been available to the Appellant having their foundation in the apparent contradiction between saying that the Appellant could avoid the abuse he received at the Icebar by not arguing with drunks (scil. about his sexuality) and the statement that he had no need to hide his sexuality. No such argument was, however, developed. No occasion arises to consider such an argument.
Systemic Discrimination (Federal Circuit Court Ground 4; Federal Court Ground 6)
52 Ground 4 before the Federal Circuit Court was that the Tribunal had misunderstood what was meant by systemic and discriminatory conduct under s 91R of the Act, as it then was. This ground was directed at a passage in the Tribunal’s reasons where it was said at [5]:
‘There was some societal discrimination against persons based on sexual orientation and gender identity, although there was no systemic discrimination.’
53 As articulated in the amended application in the Federal Circuit Court, the argument was that the Tribunal had reached this conclusion because it ‘misunderstood what is meant by systemic and discriminatory conduct as in s 91R’. Why was this so? Because it appeared that the Tribunal meant that the conduct had to be ‘organised, methodical or by the state’. In the Appellant’s written submissions about this ground on the appeal this was said:
’73. His Honour erred since his rejection of Ground 4 was based on his disregard of comprehensive submissions ([33]-[38]), and on what is on face of the record and it lacks logical reasoning. See Transcript Pg 28 In36 – Pg 31 in 10.
74. His Honour’s Reasoning at AB 231, [22] simply disregard the evidence. There is no reference to authorities Haji Ibrahim or VSAI. The Tribunal said that part of the reason was that there was no systemic discrimination. Just making statements ignoring the Tribunal’s decision is more like merit review.’
(errors in original)
54 It remains therefore unclear what the material is which shows that the Tribunal applied a test of ‘organised, methodical or by the state’ when it is said that the Tribunal erroneously approached the word ‘systemic’. In the amended application there is a reference to [31] of the Tribunal’s reasons. We have set [31] out above. We are unable to conclude that it adds anything to the current discussion.
55 Judge Street was not able to identify any basis upon which it could be said that s 91R had been misapplied: [22]. This conclusion was correct. The Appellant’s contentions in this regard have not gelled into something which may properly yet be described as an argument.
56 Judge Street observed, correctly we think, that there was a further problem in that the sentence the Appellant relied upon actually appears to be a quote from a report by the United States Department of State. This quote inexplicably appears unannounced at the end of [5] of the Tribunal’s reasons where it does not appear to belong. There may be something to be said for the view that the quote belongs instead to [6] where the Tribunal set out other country information upon which it relied. However, it is not necessary to form a concluded view about this; it makes no difference.
Relocation (Federal Circuit Court Ground 5; Federal Court Ground 7)
57 In the Federal Circuit Court, ground 5 was a complaint about [32] of the Tribunal’s reasons. Paragraph [32] said this:
‘I give weight in this matter to the independent evidence indicating access to state protection from persecution. I give weight in this matter to the evidence of [the Appellant’s] practical capacity to relocate to cities where the evidence in this case predominantly indicates that life for LGBTI persons is generally safe.’
58 The word ‘relocate’ naturally invites attention to where the Appellant in fact had lived and where it could reasonably be supposed he might go. As to the first question, the Tribunal found the Appellant was born in a small town in Lomaiviti Province, had moved to Lautoka in September 2011 and then finally to Suva in March 2012. It seems he left Suva to stay with an aunt in Nadi in July 2013. As the Tribunal noted, it was the fact of his staying with this aunt in Nadi that had kept the Appellant out of Oriles Nightclub (in Suva) rather than any fear about a repeat of the events of the evening of 2 January 2013: [16].
59 It appears that during the hearing before the Tribunal, the Tribunal Member drew to the Appellant’s attention information which suggested that gay and lesbian Fijians found it easier to live in cities like Suva. This exchange was recorded at [19] of its reasons:
‘I drew [the Appellant’s] attention to commentary from an NGO called Equal Ground Pasifik, cited in his primary decision about gays and lesbians finding it easier to live according to their orientation in cities like Suva. In reply, he said there is still discrimination even in Suva.’
60 As a process of reasoning one can follow this line of thought. The Tribunal was suggesting that it would be acceptable for the Appellant to live in cities like Suva. However, this makes it difficult to understand what the Tribunal was discussing when it referred at [32] to the Appellant’s ‘practical capacity to relocate’ to cities when the Appellant’s evidence was that he had lived in Nadi (and before that, Suva), both being cities.
61 The Appellant’s amended application and supplementary notice of appeal ignored this problem, instead criticising the Tribunal for its conclusion that the position of gay people in Suva was satisfactory (although puzzlingly, still referring to the error as an error about ‘relocation’). Doing the best that one can, the gist of the complaint seems to be that the Tribunal should have taken certain other matters into account in assessing the relocation issue and its reasons did not suggest that these other matters had been considered.
62 Judge Street rejected ground 5 on two bases. First, he interpreted the relocation problem as being directed to the fact that the Appellant had relocated to ‘different cities’ ([23]) which can only have been a reference to both Suva and Nadi. Secondly, his Honour reasoned that the argument involved an impermissible attack upon the Tribunal’s function of assessing the merits of the case. His Honour dealt with the issue at [23] – [24]:
In relation to ground 5, this was not a case where the Tribunal made findings concerning relocation of a kind within s.36(2)(b) of the Act. The reference by the Tribunal in para.32 to the applicant’s practical capacity to relocate to cities arises out of the applicant’s history in which he did relocate to different cities and does not give rise to any jurisdictional error. The submissions of the solicitor for the applicant sought to identify alleged matters that were not taking [sic] into consideration in support of ground 5.
It is clear that the Tribunal referred to the whole of the evidence before the Tribunal in coming to the finding that the applicant’s fear of Convention-related persecution was not well-founded. I accept the first respondent’s submissions that the Tribunal does not have to mention every item of evidence before it. I also accept the first respondent that, in substance, ground 5 is an impermissible challenge to the merits of the matter which were for the Tribunal to determine. Ground 5 fails to make out any jurisdictional error.
63 We do not think that his Honour was correct as to the first matter. There can be no escape from the fact that the Tribunal literally said that the Appellant could relocate to safe cities when it had already accepted he lived in Nadi. Valiantly to attempt to interpret what the Tribunal said about relocation as applying to the Appellant’s move to Suva or Nadi makes no sense. This is because the Tribunal’s reasons assume that the relocation in question was something which could happen in the future and not something which had happened in the past. In fact, there was no reason for the Tribunal to be considering the relocation principle at all which has nothing to do with this case because the Appellant had in fact lived in both of Fiji’s two major cities, Suva and Nadi, and hence could not meaningfully relocate to them. On the other hand, Judge Street was quite right to identify the submission – whatever it was – as an attack on the Tribunal’s assessment of the merits of the relocation argument. The difficulty is that there was no such issue.
64 In any event, the result is the same – the point goes nowhere. The Tribunal’s consideration of this issue was erroneous but also irrelevant. It is perhaps implicit in that conclusion that we would reject the Minister’s contention that the Tribunal could not literally have meant to refer to ‘relocation’. It did but this is of no moment.
State Protection (Federal Circuit Court Ground 6; Federal Court Ground 8)
65 This ground also had its genesis in [32] of the Tribunal’s reasons. That paragraph included the statement that:
‘I give weight in this matter to the independent evidence indicating access to state protection from persecution.’
66 The point of ground 6, as we understand it, was to contrast this statement with what the Tribunal had said at [6]:
‘…3.110 There are some reports of discrimination on the basis of sexual orientation or gender identity in access to state protection. While credible, DFAT was unable to verify these reports.’
67 It was said that the Tribunal had failed to take into account a relevant consideration, presumably, the other information referred to in [6]. The short answer to this is that the Tribunal did take it into account, as [6] shows, but did not act on it because it was unverified. No error is involved in that style of reasoning.
68 Another matter which it was said the Tribunal should have taken into account, but did not, was that the Appellant had been locked up and harmed by the police. Again, however, it is clear that these matters were taken into account by the Tribunal. Both were explicitly referred to in the Tribunal’s treatment of the Oriles Nightclub and Icebar incidents.
69 Judge Street rejected the argument on essentially the same basis at [25]. He did not err in doing so.
The Bias Grounds
70 It is then necessary to turn to grounds 1 and 2 of the supplementary notice of appeal which allege that Judge Street was ostensibly or actually biased.
71 According to the Appellant’s written submissions, the basis for the suggestion that there was a reasonable apprehension of bias on the part of Judge Street was what was alleged to be his Honour’s antagonistic attitude towards refugee applicants. To make good this point, the Appellant drew upon three broad subject matters:
(a) the manner in which his Honour had dealt with the Appellant’s case;
(b) the manner in which his Honour had dealt with another refugee case, SYG 2356 of 2013, heard on 17 March 2015; and
(c) the manner in which his Honour had dealt with another refugee case, SYG 981 of 2014, heard on 17 March 2016.
72 To prove (b) and (c) the Appellant relied upon evidence of what had occurred before his Honour in those two cases on 17 March 2015 and 17 March 2016.
73 The evidence about (b) was available at the time of the hearing in the present case before Judge Street on 16 March 2016. However, the events in (c) did not occur until the following day and were not therefore available at the time of the first instance hearing. The Appellant sought to lead evidence as to both before this Court. He submitted that evidence of this kind was tendency evidence within the meaning of s 97 of the Evidence Act 1995 (Cth) and he issued a notice under that provision. Section 97 provides:
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Paragraph (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
74 It will be seen that tendency evidence is inadmissible unless under s 97(1)(b) the Court thinks that the evidence will have significant probative value. It is useful to consider that question both in relation to the ostensible and actual bias cases in respect of which slightly different issues arise.
75 As to the ostensible bias argument, the facts to be proved are facts from which ‘a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits’: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] per Allsop CJ, Kenny and Griffiths JJ . This directs attention to the matter actually before the Court. In the context of such a test, the concept of tendency makes no sense. The ostensible bias issue does not relate to an inquiry into whether a judicial officer has a tendency to behave in any particular way. Rather, it is concerned with whether the way in which the judicial officer has behaved might generate a particular apprehension. The Appellant’s invocation of s 97 in relation to the ostensible bias case is, therefore, misconceived. That does not mean that the evidence of the other cases is necessarily irrelevant; rather, it just means that it is not relevant on a tendency basis. For that reason, we would not receive this additional evidence under s 97 in relation to the ostensible bias case in respect of which, as tendency evidence, it has no probative value.
76 Nor would we receive it on any other basis. Without an investigation of the underlying merits of these two other cases it is not possible to assess whether his Honour’s alleged behaviour in them might have generated a reasonable apprehension of bias. This is because the appropriately informed lay observer would need to know those matters in order to consider the appropriateness of the judicial officer’s conduct: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [38] per Allsop CJ, Kenny and Griffiths JJ.
77 Different considerations apply in respect of the actual bias case. Here the tendency argument would be that the other two cases are evidence that his Honour had a tendency to decide cases adversely to refugee applicants regardless of their merits. However, for largely the same reason as that just given, it is not possible to gauge the correctness of that proposition without knowing a lot more about the cases and, in particular, about their merits. For that reason, we would not accept that the proposed evidence has significant probative value for the purposes of s 97(1)(b) of the Evidence Act 1995 (Cth) and would not receive it as tendency evidence in relation to a case of actual bias. We would be prepared to accept, as a matter of theory, that the evidence could bear upon a case of actual bias in a way which did not involve the use of tendency reasoning. Again, however, we do not see that this could occur without, as we have already noted, some consideration of the underlying merits of the two cases.
78 Accordingly, we do not accept that the evidence as to the other two cases is admissible. In that circumstance, it is not necessary to decide whether the Full Court should exercise its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) to receive further evidence not adduced at first instance: the evidence, even if received, is not admissible.
79 The Appellant’s ostensible and actual bias cases turn then on what happened in the Appellant’s own case. This requires a close reading of the transcript. We have undertaken that task.
80 The Appellant made a number of complaints about the hearing. First, he submitted that his Honour appeared underprepared. We would not accept this submission. The best that can be said for the Appellant is that at pp.4-8 of the transcript his Honour appeared a little unclear at that stage about the relationship between the Oriles and Icebar incidents. But that sort of confusion is hardly surprising during a hearing whose purpose is to relieve precisely just such confusions. In any event, it is just as plain that his Honour’s preparation of the matter had gone as far as being quite familiar with the contents of the Appellant’s statement before the Tribunal. In our opinion, there is no basis whatsoever for a suggestion that his Honour had not properly prepared for the matter.
81 Secondly, the Appellant submitted that his Honour engaged in merits review during the course of the hearing. There is no substance to this curious complaint either. A review of the transcript merely shows that by using the Appellant’s actual statement before the Tribunal his Honour was unable to see deficiencies in the Tribunal’s analysis of that material. For a judge to make such statements during a hearing is entirely unexceptional.
82 Thirdly, the Appellant complained that Judge Street had usurped the role of counsel for the Minister. Again, there is no substance in this. It is true that counsel for the Appellant received the most of his Honour’s attention; it may even be said that the questioning of counsel for the Appellant was robust. But these matters do not approach what is needed to make good a case of apprehended or actual bias.
83 Fourthly, complaint was made that Judge Street had not referred to all of counsel’s arguments or the cases he had referred to. His Honour was under no such obligation.
84 There were then lastly a collection of short points such as that his Honour’s reasoning process was ‘untenable’ or that he did not give ‘careful consideration’ to the Appellant’s arguments. None of these arguments raises any issue of substance and none establishes any case of apprehended or actual bias.
85 It will follow that none of the arguments advanced in relation to ostensible bias or actual bias succeeds considered in isolation. It is useful to consider whether some different result obtains when they are considered not as individual integers but, instead, as part of a conglomerated whole. However, even looking at the matter that way we can apprehend no difference in outcome.
86 For those reasons, grounds 1 and 2 should be dismissed.
4. Result
87 The appeal should be allowed with costs. The orders made by Judge Street on 16 March 2016 should be set aside and orders should be made as follows:
1. The appeal be allowed.
2. The orders made by the Federal Circuit Court of Australia on 16 March 2016 be set aside and in lieu thereof it be ordered that:
(a) Order absolute in the first instance for a writ of certiorari directed to the Second Respondent setting aside its decision in case number 1413961 made on 24 September 2015.
(b) Order absolute in the first instance for a writ of mandamus directed to the Second Respondent in case number 1413961 requiring that it determine according to law the Applicant’s application for a review of the decision made by the delegate on 23 July 2014.
(c) Direct that the Second Respondent be differently constituted for that purpose.
(d) The First Respondent pay the Applicant’s costs as taxed or agreed.
3. The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.
I certify that the preceding eighty-
seven (87) numbered paragraphs
are a true copy of the Reasons for
Judgment herein of the Honourable
Justices Perram, Robertson and Wigney.
Dated: 27 April 2017
[14] Regarding the January 2013 incident in Suva, [the Appellant] told me he was at a nightclub with a lesbian friend in Suva called Oriles (which is homophonic with “O’Reilly’s”). He described Oriles as a “straight” or mainstream, but more or less “gay-friendly”, nightclub. He said that gay people feel safe there, and having reviewed all the evidence in this case I give that particular fact some weight. [The Appellant] told me he used to go to Oriles once a month for about three years. He later said that he went there three or four times a year over the same period, and only stopped going there because he moved to Nadi to look after his aunt and became less able to afford nightlife.
[15] [The Appellant] claimed that on the night of 2 January 2013 he and two gay friends left Oriles around 2:00am, happy and laughing, and walked towards a bus stop. He said a police patrol vehicle passed by. He said that he and his friends were laughing and oblivious to the police vehicle. He claimed to me and to the Department that the police yelled out “You Qauri. Shameless bastards. Go home.” I understand from [the Appellant], he and his friends did not go home. [The Appellant] told me he called back to the police telling them to “shut up”. He also claimed to the Department that he told the police to mind their business, whereupon the police stopped their car and chased [the Appellant] and his friends, caught them and made them kneel on the ground. He said the police demanded they say, “I am a shameless Qauri and I ask for mercy for my bad behaviour.” [the Appellant] claimed that he refused to say this and was slapped so hard his ears rang. He claimed he agreed to say what he was told to say, after which the police told them to run off, which he said was exactly what he and his friend then did.
