FEDERAL COURT OF AUSTRALIA

SZQDT v Minister for Immigration and Citizenship [2012] FCA 969

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal assessed at $3,796.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of a Federal Magistrate delivered on 28 March 2012 (SZQDT v Minister for Immigration and Citizenship [2012] FMCA 224) by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The appellant is a Fijian citizen who was born on 13 August 1973. The appellant visited Australia in 2009 and left after that visit. On 3 April 2010, he returned to Australia and has remained here ever since.

3    On 16 June 2010, the appellant applied for a protection visa. A delegate of the first respondent (the Minister) made a decision to refuse the appellant’s application for a protection visa on 14 September 2010. On 7 January 2011, the Tribunal affirmed the decision of the delegate.

The Appellant’s Claims and the Decision of the Tribunal

4    The appellant claimed to be a homosexual. He claimed that he had been harassed for this reason by his family and by members of the public. He claimed that, in 1999, a friend tried to touch him inappropriately when they were in the friend’s car together. He claimed that, when he reported the incident to the police, he himself was arrested and told that the incident was all his own fault because he had stayed out late.

5    The appellant also claimed that, in 2000, members of the army came to his residence to tell him to lower the volume of the music which he was then playing. These persons also called him names. Further, he claimed that, in 2006, he was stopped by people whom he believed to be plain clothes policemen. He said that these people made him run naked along the beach and perform oral sex on them. By way of illustration that he had been harassed by his family because of his sexuality, the appellant claimed that, in 2008, he met an uncle on the street who threatened to chop off his head because he was “still acting like a girl”. The appellant claimed that homosexuals are frequently insulted on the streets in Fiji.

6    At [67] of its Statement of Decision and Reasons (the Decision Record), the Tribunal said that, based upon the appellant’s written and oral evidence about his sexuality and lifestyle and his demeanour at the hearing, the Tribunal found that the appellant is indeed a homosexual. The Tribunal said that homosexuals are a particular social group in Fiji within the meaning of the Refugees’ Convention (Convention). The Tribunal found that homosexuals comprise a recognisable group within Fijian society which shares a common characteristic and is not defined by the persecution feared.

7    At [68] of the Decision Record, the Tribunal concluded that, after drinking kava, the appellant had been picked up by a married friend who inappropriately touched him. The Tribunal accepted that, at the request of the appellant, the friend took him to the police station and that he was locked in the cell overnight. The Tribunal went on to say:

… Having regard to all the circumstances of the incident the Tribunal does not accept that being locked up in these circumstances constituted serious harm. Nor does it accept that he was locked in the cell because of his homosexuality. It finds it was not persecution within the terms of the Convention.

8    At [69] of the Decision Record, the Tribunal also accepted the appellant’s evidence that, in 2000, the military had asked him to turn his music down and that the members of the military who had attended upon him on that occasion had called him names. The Tribunal said that the conduct of the military on this occasion did not result in serious harm to the appellant and did not constitute persecution within the terms of the Convention.

9    At [70] of the Decision Record, the Tribunal recorded that it also accepted the appellant’s evidence that, in 2006, he was taken to a beach by people he believed to be police officers and forced to strip and run. The Tribunal said that it also accepted that he was told to perform oral sex on those men. The Tribunal said that the country information which it had indicated that there had been no recent reports of people being mistreated simply because of their sexuality. The Tribunal then said:

The applicant did not indicate that he feared the police might perpetrate sexual assault or seriously harm him in the future. There is no evidence that he will be approached by any of those officers again in the future. The Tribunal finds there is not a real chance the applicant will suffer harm of this nature in the foreseeable future if he were to return to Fiji.

10    At [71] of the Decision Record, the Tribunal said that it accepted the appellant’s evidence and the evidence of his nieces that his family has disapproved of his sexuality and that he has been insulted and ostracised by members of his family. The Tribunal said that it also accepted that the appellant’s uncle had threatened to harm him in the past. The Tribunal recorded that, to its observation, the appellant appeared annoyed when he described the incident with his uncle and did not appear to be fearful of his uncle’s threat. The Tribunal said that it was not satisfied that the appellant’s uncle intended to carry out the threat. The Tribunal was not satisfied that the uncle’s threat amounted to serious harm.

11    Insofar as the appellant’s claim that he will have difficulty finding work in Fiji was concerned, the Tribunal found that employment difficulties were being experienced by everyone in Fiji and that these difficulties did not constitute persecution for a Convention reason.

12    At [72]–[73] of the Decision Record, the Tribunal said:

72.    In terms of future harm the Tribunal accepts that the applicant’s family might continue to insult him and ostracise him in the future. The applicant was visibly distressed when he gave evidence about being frightened to make contact with his family if he returns to Fiji because he has not had contact with them for several years and they are generally unaccepting of his sexuality. The Tribunal accepts that this situation is distressing for the applicant. However it finds that being insulted and ostracised by his family does not have any official quality so as to amount to persecution for the purposes of the Convention.

73.    In relation to the applicant’s general claim as a homosexual in Fiji, until February 2010, under the recently superseded Penal Code, homosexual acts between men were illegal in Fiji and those convicted could be imprisoned. The Penal Code has now been replaced by the Crimes Decree 2009 (enacted 1 February 2010), which has decriminalised homosexual acts. The prohibition on discrimination based on sexual orientation contained in the abrogated 1997 Constitution is now contained in the New Human Rights Commission Decree 2009, effective 12 May 2009.

13    At [74] of the Decision Record, the Tribunal recorded that it accepted the public acceptance of homosexuals in Fiji was not widespread and that, in the past, homosexuals had been singled out for ridicule. However, based upon recent country information, the Tribunal did not consider that homosexuals were currently being persecuted by the regime.

14    The Tribunal concluded its Decision with the following paragraphs ([75]–[83]):

75.    Having considered the information provided by the applicant the Tribunal is not satisfied the applicant has a well-founded fear of persecution on account of his membership of a particular social group from the military, police or elements within society whom the authorities are unable or unwilling or to control.

76.     The Tribunal considered the applicant’s claims about his difficulties in securing appropriate employment and his fear that the current government is not fulfilling its promises which has created insecurity and uncertainty in the community. Given the economic and social circumstances in Fiji the Tribunal accepts that if the applicant returned to Fiji he may have difficulty finding work because the current employment market in Fiji is poor due to continuing political and economic problems as set out in the country information.

77.     The Tribunal accepts that the applicant had employment before he came to Australia. It accepts his evidence that he received sufficient income from that employment to save to travel to Australia. It accepts that his employers held his position for him for months, until recently when they employed a substitute live-in babysitter.

78.     The Tribunal does not accept that any difficulty he might experience in finding work is for one of the reasons in the Convention. It finds the dire economic conditions apply to mostly everyone and that he has not been targeted. The independent country information indicates that the economic and social climate in Fiji affects nearly everyone and the Tribunal finds that the economic harm he may suffer on his return is not discriminatory and therefore not persecution or for reasons of his membership of a particular social group.

79.    The Tribunal notes that the applicant believes he has been treated badly by previous employers who have blamed him unfairly. The Tribunal accepts that this might have occurred. However it finds that the conduct has not resulted in serious harm and finds it is not persecution within the terms of the Convention. There is not a real chance that he will suffer serious harm amounting to persecution now or in the reasonably foreseeable future.

80.    The applicant claimed that if he returns to Fiji he will not go out too often. He did not give evidence that he will not go out at all. The Tribunal considered whether the applicant would need to limit going out to avoid the threat of serious harm. The applicant gave evidence that in the past he avoided going out in Ba because people called out at him. His relatives provided written evidence that they have witnessed him being called names. He also gave evidence that there are gay friendly places and gay groups in Fiji, and referred to support for gays in Suva and a bar in Nadi where gays are welcome. The Tribunal accepts this evidence. The country information indicates that homosexuals in Fiji experience some level of societal discrimination but there is no systemic discrimination, and that there are gay friendly places. The Tribunal finds that if the applicant goes out in Fiji he might be subjected to name calling and insults. It appreciates that this experience might be unpleasant for the applicant but it finds it does not constitute serious harm.

81.    Having regard to all the applicant’s claims and the oral and written evidence, the Tribunal finds there is no real chance that the applicant will suffer serious harm from his family, the community or the authorities if he were to return to Fiji. It finds there is no real chance that the incident in 2006 will be repeated. The Tribunal finds that there is no real chance that the applicant will suffer serious harm in the foreseeable future if he were to return to Fiji. Accordingly it is not satisfied that he has a well-founded fear of persecution within the meaning of the Convention as qualified by the Act.

CONCLUSIONS

82.    The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

DECISION

83.    The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

15    At [6]–[18] of the Decision Record, the Tribunal explained the relevant law. This explanation provided an appropriate setting for what followed in the Decision Record.

16    At [13]–[18] of the Decision Record, the Tribunal said:

13.     Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.9 R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14.     Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

15.    Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(l)(a) of the Act.

16.     Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17.     In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.

18.     Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

17    In the proceeding before the Federal Magistrate, the appellant tendered the transcript of the hearing before the Tribunal. At transcript 32 ll 9–14, after telling the Tribunal that, if he were returned to Fiji, he would need to live with his family, the appellant said:

… I rather die than go and stay with my family because I know how they’ve treated me in the past years when I was small.

18    Later during the Tribunal hearing, the appellant said that his family had ill-treated him in the past and that he was fearful of approaching his family.

The Proceedings in the Federal Magistrates Court

19    On 15 April 2011, the appellant filed in the Federal Magistrates Court of Australia an Application for Judicial Review of the Tribunal’s decision. That Application was subsequently amended by way of an Amended Application filed on 24 June 2011. In his Amended Application, the appellant relied upon the following grounds of review:

Treatment by the family

(1)     The Tribunal made jurisdictional error in four ways in assessing whether the applicant has a well-founded fear of persecution by his family members.

Particulars

(a)     The Tribunal made contradictory findings as to whether the treatment that the applicant would be subject to by his family in the future, most specifically insults and ostracism, would constitute serious harm under s.91R(1)(b) of the Migration Act 1958 (“the Act”). The first finding is found in [72] (CB 87) and the second finding in [81] (CB 89). The Tribunal made these contradictory findings since it misunderstood and therefore misapplied what is meant by “serious harm” under s.91R(1)(b) of the Act.

(b)     In considering whether the overall treatment that the applicant would be subject to by his family would constitute serious harm under s.91R(1)(b) of the Act the Tribunal failed to consider two aspects of the harm resulting from his family’s treatment of him. Firstly the possibility of suicide or self harm, because it fitted one of the non-exhaustive, but sufficient, criteria in the statutory definition provided in s.91R(2)(a), being “a threat to the applicant’s life or liberty”. Secondly the possibility of denial of a place to live in Fiji which squarely fell within the criteria in the statutory definition provided in s.91R(2)(e) “denial of access to basic services, where the denial threatens the person’s capacity to subsist”.

(c)     The Tribunal failed to consider the cumulative effect of all the future harm that the applicant may suffer in order to assess whether they may constitute serious harm even if the Tribunal was of the opinion that the harm from different sources may not constitute serious harm on their own.

(d)     The Tribunal applied the wrong test for state protection. Instead of applying the test that it correctly set out in its decision in [13] it applied a wrong test, that is, in [72] (CB 87) it applied the test “Is the harm perpetrated by family members and if so there is no official quality”.

Treatment by the Fijian society

(2)     The Tribunal made jurisdictional error in two ways in assessing whether the applicant has a well-founded fear of persecution by the Fijian society.

Particulars

(a)     In considering whether the overall treatment that the applicant would be subject to by the Fijian society would constitute serious harm under s.91R(1)(b) of the Act the Tribunal failed to consider two aspects of the harm resulting from the Fijian society’s treatment of him. These are, firstly that the applicant may not be able to go out due to fear and secondly the applicant may not be able to use public transport due to fear.

(b)     The Tribunal misunderstood and misapplied what is meant by the phrase “systematic and discriminatory conduct” under s.91R(1)(c) of the Act and thus held that the future treatment that the applicant will be subject to by the society at large is not systematic discrimination. At [80] the Tribunal accepted that there is societal discrimination such as name calling and insults. This is an acknowledgement that the Fijian society deliberately discriminates against homosexuals. Since this is not a random act of the society it is systematic discrimination.

State Protection

(3)     The Tribunal made jurisdictional error in that it made a finding without evidence.

Particulars

There is no evidence to support the following finding in that all the relevant evidence available are contrary to that finding.

Nor does the evidence referred to indicate that the military or police are unwilling or unable to offer effective protection from what might be described as ‘agents of persecution’.

20    The Federal Magistrate made what may fairly be described as “usual directions” in the proceeding on 25 May 2011. Order 5 made on that occasion was in the following terms:

THE COURT ORDERS THAT 

…

5.    Other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit. Evidence of a tribunal hearing is to be presented as a transcript verified by affidavit.

21    Orders were also made dealing with the tendering of sound recordings of the Tribunal hearing.

22    The hearing before the Federal Magistrate took place on 21 March 2012. On that occasion, the appellant was represented by the solicitor/advocate who appeared for him at the hearing before me. Allowing for interruptions by other matters, the hearing appears to have occupied approximately two and a half hours of the Court’s time on that occasion. I note that, as required by the Federal Magistrate in the directions which she made on 25 May 2011, each of the active parties appearing before her had filed and served Written Submissions prior to the hearing.

23    At the hearing of the appeal before me, the appellant tendered a copy of the transcript of that hearing, the sound recording of that hearing, the appellant’s Written Submissions filed in the Federal Magistrates Court for the purposes of that hearing and certain other materials.

24    It will be necessary to return to this material later in these Reasons.

25    In her Reasons, after referring to the legislative framework within which the appellant’s claims were being made, the appellant’s claims, the delegate’s decision and the Tribunal’s decision, the Federal Magistrate proceeded to address the Application for Judicial Review which had been made by the appellant in the Federal Magistrates Court.

26    At [59], the Federal Magistrate commenced dealing with the specific grounds relied upon by the appellant in his Amended Application.

27    Her Honour found that there was no inconsistency in the findings made by the Tribunal as submitted by the appellant in support of ground 1(a) of his Application. At [60], her Honour said that, even if insults and ostracism from his family caused the appellant distress, the Tribunal was not satisfied that those matters were capable of constituting serious harm within the meaning of the Convention. Her Honour said that that was a finding that was open to the Tribunal on the evidence and material before it and for the reasons which it gave.

28    As far as ground 1(b) was concerned, her Honour held that there was no evidence before the Tribunal to the effect that the appellant claimed that he would kill himself if he were required to return to Fiji. The appellant’s advocate had apparently drawn the Federal Magistrate’s attention to the remark made by the appellant at transcript 32 which I have extracted at [17] above. The Federal Magistrate (at [66] of her Reasons) said that she was not satisfied that this remark was anything more than an emphatic expression of a desire not to have to live with his family again.

29    The Federal Magistrate held that the appellant had not made a claim that he will be denied access to basic services threatening his capacity to subsist. The general economic difficulties confronting the people of Fiji were being experienced by all those who lived there. The findings made by the Tribunal in respect of this matter were open to it.

30    For these reasons, the Federal Magistrate rejected ground 1(b).

31    At [73]–[82], the Federal Magistrate addressed ground 1(c). Her Honour found that the Tribunal did consider the claims made by the appellant both individually and cumulatively. Accordingly, the Federal Magistrate rejected ground 1(c).

32    As far as ground 1(d) was concerned, her Honour found that the Tribunal had not needed to consider the issue of State protection as it had found that the appellant’s claims did not amount to “serious harm”. In any event, her Honour concluded that the Tribunal had made a clear finding that it was not satisfied that State protection was not available to the appellant. For these reasons, ground 1(d) was rejected.

33    As far as ground 2(a) was concerned, her Honour concluded that the appellant had not claimed that he would not go out at all. Her Honour noted that the Tribunal had found that there are gay-friendly places in Fiji and that there is no systemic discrimination of homosexuals in Fiji. After reviewing the whole of the transcript of the hearing before the Tribunal, her Honour was not convinced that the appellant had made a separate claim of fear of using public transport and found that claim to be no more than a particular or aspect of his claim that he feared going out altogether. For these reasons, her Honour rejected ground 2(a).

34    Her Honour also rejected ground 2(b) on the basis that the Tribunal had not accepted that any of the harm feared by the appellant amounted to serious harm.

35    As far as ground 3 was concerned, her Honour found that the Tribunal was not obliged to consider State protection as it had not found that the appellant was vulnerable to “serious harm”. For this reason, her Honour held that ground 3 was not made out.

The Proceedings in this Court

36    On 17 April 2012, the appellant filed a Notice of Appeal in this Court seeking to overturn the decision of the Federal Magistrate.

37    On 23 May 2012, the appellant filed an Amended Notice of Appeal. In that Amended Notice of Appeal, the appellant repeated grounds 1(a)–1(d), 2(a)–(b) and 3 which he had specified in his Amended Application in the Federal Magistrates Court. That is to say, in this Court, the appellant seeks to relitigate from scratch, as it were, all of the grounds which he litigated before the Federal Magistrate.

38    The way in which this is done is to reframe those grounds as points or matters in respect of which it is alleged that the Federal Magistrate erred in the decision which she made.

39    In addition to the grounds relied upon before the Federal Magistrate, the appellant relies upon allegations that the Federal Magistrate was actually biased against him or was guilty of apprehended bias for reasons connected with an entirely separate proceeding in the Federal Magistrates Court in which the Federal Magistrate in the present case was the presiding judicial officer and in which the appellant’s advocate in the present case appeared for one of the parties.

40    The grounds of appeal directed to actual bias and apprehended bias in the appellant’s Amended Notice of Appeal are expressed in the following terms:

Apprehended Bias

(4)    Her Honour the Federal Magistrate’s behaviour towards the appellant’s solicitor advocate during the hearing and later the way the decision was made by her Honour has caused apprehension of bias. This apprehended bias on the part of the Federal Magistrate against the appellant is thought to result from the fact that the appellant’s solicitor has made complaints against her Honour to the Chief Federal Magistrate and Former Federal Attorney General as a result of her Honour’s behaviour towards the solicitor advocate in a previous court hearing.

Particulars

(a)    Her Honour was unnecessarily hostile on the Appellant’s Solicitor Advocate in the following ways:

(i)    Put unnecessary impediments to admitting transcripts of the Tribunal hearing into evidence. Straightaway right at the beginning of the hearing without speaking to the Respondents’ Counsel, in a hostile manner, put impediments to admit the affidavit with the transcript of the RRT hearing into evidence insisting for example that there is no translation whereas the hearing was conducted in English demonstrating that in her eagerness to make life difficult for the Solicitor Advocate she did not even check with the Respondents’ Counsel or to inquire check whether a translation was necessary;

(ii)    Although her Honour made orders at the direction hearing that an affidavit with the transcript of the RRT hearing should be filed in court, at the beginning of the hearing refused to admit affidavit with the transcript of the RRT hearing in evidence, even after the solicitor pointed out the specific parts of the transcript that has been referred to in the Final Submissions, first unreasonably making a decision not to admit it and later grudgingly admitting it; and

(iii)    Insisted that an affidavit should be provided the person who made the transcript even though the appellant has sworn an affidavit to the accuracy of the transcript, the affidavit was filed more than 9 months before the hearing and the Respondents had no issue with it;

(iv)    Interrupted the solicitor advocate numerous times; and

(v)    Did not give due courtesy to the solicitor as an officer of the court.

(b)    Her Honour did not appear to make the decision in a fair manner as follows:

Her Honour appears to engineer a negative decision through the use of certain strategies such as (i) deliberately avoiding to deal with major submissions made which had to be overcome (for example under ground 1(a) & 1(b)) (ii) deliberately avoiding dealing with authorities which were vital but contrary to her Honour decision (for example under ground 1(c)).

Bias

5.    The way Her Honour the Federal Magistrate conducted the hearing and later the way the decision was made by her Honour demonstrated that her honour was biased. This bias on the part of the Federal Magistrate against the appellant resulted from the fact that the appellant’s solicitor has made complaints against her Honour to the Chief Federal Magistrate and Former Federal Attorney General as a result of her Honour’s behaviour towards the solicitor advocate in a pervious court hearing.

Particulars

(a)    Right at the beginning or prior to that her Honour decided to give a hard time to the solicitor advocate using the court procedures. Most specifically in relation to admitting the affidavit evidence of the appellant which had the transcript of the tribunal hearing attached to it. Her Honour did not consult the Respondents to get their view in this. Her Honour decided to refuse to admit it unreasonably (Wednesbury unreasonable) in spite of the fact that the appellant’s submissions referred to it and also the decision of the Full Court of the Federal Court WAEE was put by the Respondents against the Appellant to show that evidence did not raise certain claims. Her Honour told the parties that she had read the submissions. Thus it was clear to the Magistrate that the transcript had a major role in the decision because of WAEE and SGKB. Her Honour’s decision was intended to deny the appellant the benefit of the transcript evidence. Her Honour’s decision to admit the affidavit later does not change the situation that bias was already demonstrated.

(b)    Her Honour engineered a negative decision through the use of certain strategies such as (i) deliberately avoiding to deal with major submissions made which had to be overcome (for example under ground 1(a) & 1(b)) (ii) deliberately avoiding dealing with authorities which were vital but contrary to her Honour’s decision (for example under ground 1(c)).

41    I propose to address each of the grounds relied upon by the appellant in turn. However, I shall do so bearing in mind that, for the appellant to succeed in his appeal in this Court, he must demonstrate error on the part of the Federal Magistrate. An appeal in this Court from a Federal Magistrate in a matter such as this does not commence with a clean slate. Rather, the appellant must proceed upon the basis that there is a judgment given by the Federal Magistrate which has determined his case below in respect of which he must demonstrate appellable error. In addition, in determining whether the Federal Magistrate has erred in the present case, I must be mindful that the task with which she was confronted was to determine whether the Tribunal had committed jurisdictional error which needed to be remedied or rectified.

Ground 1(a)

42    In support of this ground, the appellant’s advocate submitted that the Federal Magistrate should have held that the Tribunal had made contradictory findings in relation to harm by family members. The appellant’s advocate made detailed submissions directed to a careful consideration of the specific findings made by the Tribunal.

43    I have referred to and extracted the critical findings made by the Tribunal at [4]–[18] above. In my judgment, a fair reading of the relevant paragraphs of the Tribunal’s Decision Record does not demonstrate that the Tribunal made contradictory findings. The expression “official quality”, when used in [72] of the Decision Record harked back to the Tribunal’s explanation of the relevant law at [6]–[18] of the Decision Record. The expression “official quality” was explained at [13] of the Decision Record.

44    The appellant has failed to demonstrate that the Federal Magistrate erred in not concluding that the Tribunal had made contradictory findings.

Ground 1(b)

45    At the hearing before me, the appellant’s advocate divided ground 1(b) into two important elements. The first, which he described as ground 1(b)(i), was the possibility of suicide or self harm and the second (ground 1(b)(ii)) was the denial of access to basic services, ie, the denial of a place to live where that denial threatens the person’s capacity to subsist.

46    The appellant’s advocate developed ground 1(b)(i) by submitting that the Tribunal had failed to examine in any detail the kind of harm to the appellant that would result from being forced to live with his family. It was submitted that there were aggravating factors present. He was going to have to live with people who did not like him and who treated him badly. His family wanted him to change from being a gay person. There were general economic difficulties in Fiji which would confront the appellant were he compelled to return there. In all of these circumstances, the appellant’s advocate submitted that the Tribunal had failed to consider properly or adequately the possibility of suicide or self harm. That possibility did not merely arise from the remark which the appellant made at the hearing before the Tribunal (as to which see transcript 32) but also arose from all of the above circumstances.

47    The Federal Magistrate held that no claim of self harm or suicide had been made by the appellant before the Tribunal and that no such claim fairly arose on the materials which the Tribunal had before it. Her Honour dismissed the remark made by the appellant at transcript 32 as amounting to nothing more than an emphatic expression of a desire not to have to live again with his family. I agree with her Honour’s reasoning. Her Honour did not err in the conclusions to which she came in respect of the matter now relied upon in support of ground 1(b)(i).

48    As far as ground 1(b)(ii) is concerned, the complaint of the appellant is that both the Tribunal and her Honour failed to see that the appellant’s inability to find work in Fiji is exacerbated because of his homosexuality. The appellant’s advocate submitted before me that the appellant’s survival was unlike other Fijians who have a home and who are not homosexuals. He submitted that there was a necessary nexus to the Convention. It was also submitted on behalf of the appellant that the Tribunal ought to have considered the possibility that the appellant’s family might not be willing to let him live with them, thus resulting in him having no place to live in Fiji, no opportunity to obtain work and every possibility that he might live on the streets.

49    The submissions made at the hearing before me directed to the denial of basic services were more expansive than those which had been made to the Federal Magistrate and indeed to the Tribunal. The Federal Magistrate (at [69]–[71]) held that the appellant had not made a claim to the effect that he would be denied basic services were he compelled to return to Fiji in the proceeding before the Tribunal. I think that that conclusion is correct.

50    For this reason, the appellant has failed to make out ground 1(b)(ii).

Ground 1(c)

51    At [12]–[14] above, I have extracted the critical parts of the Decision Record in which the Tribunal expressed its ultimate conclusions in respect of the various claims to harm made before it. It is very clear, in my judgment, that the Tribunal considered all of the claims made before it, both individually and cumulatively. Once that conclusion was reached, that was the end of the matter. There was no occasion for the Federal Magistrate to go on and refer to MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095.

Ground 1(d)

52    The critical passages in the Decision Record relevant to this ground are to be found at [13], [72] and [75] of that Record.

53    The Federal Magistrate held that the issue of State protection did not arise because the Tribunal found that there was no real chance that the appellant would suffer serious harm from his family. This is a correct statement of the Tribunal’s finding in this respect. That finding was plainly open to the Tribunal on the material before it. For this reason, the question of State protection did not truly arise either before the Tribunal or before the Federal Magistrate. However, the Tribunal did go on to consider whether the appellant could expect to receive appropriate protection from the State were he to be harassed or abused on account of his homosexuality. The Tribunal held that the appellant had failed to establish that appropriate protection from the State would not be forthcoming.

54    I reject ground 1(d).

Ground 2(a)

55    The appellant also split ground 2(a) into sub-elements viz ground 2(a)(i) and ground 2(a)(ii). Before me, the appellant argued that the appellant had claimed that he might not be able to go out due to fear (ground 2(a)(i)) and also had made a separate claim that he might not be able to use public transport due to fear (ground 2(a)(ii)). The appellant complains that the Federal Magistrate failed to deal with the first of these issues properly.

56    The Federal Magistrate found that the appellant had not made a general claim to the effect that he might not be able to go out due to fear. That was plainly a correct finding. At [94] of her Reasons, the Federal Magistrate recorded that the appellant’s claim before the Tribunal was that, if he returned to Fiji, he would not go out “too often”. He had not claimed that he would not go out at all. The Tribunal considered the claim made by the appellant that he would not go out too often and concluded that it did not constitute serious harm.

57    As far as the claim now comprising ground 2(a)(ii) is concerned, her Honour concluded that that claim had not been made separately. That was plainly correct.

58    For all of the above reasons, I reject ground 2(a).

Ground 2(b)

59    The appellant’s advocate submitted before me that the Tribunal made an error of law because it considered “systemic discrimination” instead of “systematic discrimination” which it was required to consider under s 91R of the Migration Act 1958 (Cth) (the Act).

60    At [105] of her Reasons, her Honour held that the Tribunal did not consider “systematic discrimination” in the sense contemplated by s 91R(1)(c) of the Act. Her Honour held that the Tribunal had done no more than find that there was no “systemic discrimination” in Fiji against homosexuals although it accepted that homosexuals might experience some level of societal discrimination. Her Honour concluded that that finding had been open to the Tribunal on the evidence. Her Honour’s analysis of the relevant reasoning of the Tribunal is correct. She made no error in coming to the conclusion to which she did.

61    It appears that the Tribunal used the word “systemic” (rather than “systematic”) at [50] of the Decision Record because that was the word used in the country information with which it was dealing at that part of its Reasons. The issue there being dealt with was whether the societal discrimination against homosexuals amounted to serious harm. There is nothing in this point.

62    I reject ground 2(b).

Ground 3—State Protection

63    The crux of the appellant’s submissions in support of ground 3 is that the Tribunal made a finding at [75] of the Decision Record for which it had no evidentiary basis. The appellant then criticises the Federal Magistrate for failing to uphold the submission made to her to the effect that the particular finding was made without any evidentiary basis. But, as was submitted by Counsel for the Minister, the finding at [75] of the Decision Record was a finding of a lack of satisfaction. The Tribunal stated that it was not satisfied that the appellant had a well-founded fear of persecution on account of his membership of a particular social group from the military, police or elements within society whom the authorities are unable or unwilling to control.

64    Her Honour’s treatment of this submission reveals no error. I reject ground 3.

Grounds 4 and 5—Actual and Apprehended Bias

65    In support of this ground, the appellant read and relied upon an affidavit affirmed by him on 27 July 2012 and an affidavit affirmed by his advocate on 13 June 2012. The Written Submissions made to the Federal Magistrate, the transcript of the hearing before the Federal Magistrate and the sound recording of that hearing all came into evidence before me as exhibits to those affidavits.

66    In addition, the affidavit material disclosed that, at a conference held between the appellant and his advocate in June 2011, the appellant’s advocate had informed the appellant that he (the advocate) had had some conflict with the Federal Magistrate who was to hear the appellant’s case and that he (the advocate) had made formal complaints against her. The appellant’s advocate informed the appellant that, although he was a little bit concerned about whether the appellant would get a fair hearing, her Honour was a senior judicial officer and he believed that she would act fairly.

67    It is clear that a conscious decision was made by the appellant not to ask for the Federal Magistrate to recuse herself from hearing his Application. That decision was made in the full knowledge of the circumstances which the appellant now submits constitute the reasons why the Federal Magistrate was guilty of bias.

68    The matter relied upon is this: In mid February 2007, the appellant’s advocate appeared before the Federal Magistrate at a hearing which took place at that time. This hearing concerned a matter which was entirely separate from the present case and involved a different client. The appellant’s advocate complained at the time to the Chief Federal Magistrate, the Governor-General, the Prime Minister and the Attorney-General. The gravamen of the complaints seemed to be that the Federal Magistrate had been rude to the appellant’s advocate and was not patient with or tolerant of his performance at the hearing in question. I have read the letters of complaint and have found it rather difficult to discern what the specific matter of complaint was. The letters focussed on what the appellant’s advocate described as “rudeness” and the Federal Magistrate’s brusque response to various requests for indulgences put forward by the appellant’s advocate.

69    Each of the formal complaints made by the appellant’s advocate in early 2007 received a response. Of course, no formal process for disciplining a Federal judicial officer beyond removal was in place at that time. The complaints made by the appellant’s advocate at that time certainly did not rise to a level of seriousness which would have justified action of that nature being taken by the appropriate bodies.

70    However, undoubtedly, the appellant’s advocate felt aggrieved at the treatment which he had received at the hands of the Federal Magistrate in early 2007. It was no doubt because of these feelings that he informed the appellant in June 2011 of the circumstances in which he had made the earlier complaints.

71    I have carefully read the transcript of the hearing before the Federal Magistrate and have listened to those portions of the sound recording upon which the appellant’s advocate relied as demonstrating bias.

72    Whilst it is true that, in the early part of the hearing before her, the Federal Magistrate frequently interrupted the appellant’s advocate in a way which an objective independent observer might have thought was verging on the discourteous, the exchanges which took place do not indicate that the Federal Magistrate had determined on a course of action which involved pressuring the appellant’s advocate in a way which was inappropriate or uncalled for. There was some debate between the Bench and the appellant’s advocate about the relevance to the issues in the proceeding in the Federal Magistrates Court of the transcript of the hearing before the Tribunal. I have to say that I have some sympathy for the Federal Magistrate in respect of this particular matter. She had endeavoured to ascertain from the appellant’s advocate the reasons why he wished to tender that transcript and the relevance of that transcript to the case before her. It appears to me that the appellant’s advocate was struggling to explain the relevance of that material. Confronted with his somewhat unsatisfactory attempts to explain the relevance of that material, the Federal Magistrate appeared to become a little frustrated. However, in the end, the transcript of the hearing before the Tribunal was admitted into evidence before the Federal Magistrate. Further, after an initial testy period as between the Bench and the appellant’s advocate, the appellant’s advocate was permitted a reasonable and fair opportunity to make the submissions which he sought to make.

73    In my judgment, the conduct of the Federal Magistrate at the hearing does not manifest actual bias nor, in my judgment, does it provide a satisfactory basis for a finding of apprehended bias.

74    The submissions before me in support of the appellant’s bias case concentrated on the conduct of the hearing although some reliance was placed on the fact that certain submissions made by the appellant’s advocate to the Federal Magistrate had not been dealt with specifically in her Reasons for Judgment. Having considered the Written Submissions made by the appellant in the Court below, the transcript of the hearing in that Court and the Federal Magistrate’s Reasons, I am firmly of the view that there is nothing apparent on the face of the Reasons for Judgment of the Federal Magistrate whether looked at in isolation or in combination with any of the other relevant materials that bespeaks bias—actual or apprehended.

75    The relevant principles are clear. In order to support a claim that a judicial officer was actually biased against a litigant, there must be compelling evidence that demonstrates that the judicial officer has firmly set his or her mind against the litigant in question and that the judicial officer is not prepared to deal with the litigant’s case according to his or her oath of office and according to law.

76    There is no evidence in the present case of actual bias.

77    As far as apprehended bias is concerned, the plurality which were in the majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] (p 345) articulated the relevant principle as follows:

8     The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

78    In the present case, the appellant has not established or articulated any logical connection between the fact that he had formally complained about the Federal Magistrate’s conduct in an entirely different context some years before and the risk of apprehended bias in the case at hand.

79    In Kumaragamage v Rallis No2 [2001] NSWSC 710, Austin J rejected a contention that the mere fact that a litigant’s solicitor had made complaints about a judicial officer gave rise to a reasonable apprehension of bias. At [21], his Honour said, after rejecting that contention:

… otherwise a litigant could disqualify a judge simply by making a complaint about that judge to the Judicial Commission. A judge is capable of putting such allegations out of his or her mind in the further determination of the case …

80    In the present case, despite the initial abruptness with which the Federal Magistrate dealt with the appellant’s advocate, the fair minded lay observer would not consider that the exchanges which took place during the hearing before the Federal Magistrate demonstrated apprehended bias on the part of the Federal Magistrate. Robust interaction between Bench and Bar is a commendable feature of modern courtroom processes. Judicial officers should not be unrealistically curtailed in the challenges which they may place in front of the advocate, provided always that appropriate respect, courtesy, demeanour and language are maintained vis-à-vis both practitioners and litigants alike. It is readily apparent that the exchanges between the Bench and Counsel for the first respondent during the course of the hearing before the Federal Magistrate could also fairly be described as robust.

81    For all of the above reasons, I am not persuaded that the appellant has made out his allegations of actual bias nor has he made out his claim that the Federal Magistrate was guilty of apprehended bias.

Conclusions

82    In light of all of the above matters, the appeal must be dismissed with costs. The first respondent claims a fixed sum for his costs in the amount of $3,796.00. The appellant’s advocate has informed my Associate that, should I make an order for costs against the appellant, he (the advocate) has been instructed to consent to those costs being assessed in that amount. In light of the appellant’s advocate’s acceptance of that amount as being reasonable in all of the circumstances of the present case, I propose to order that the costs be fixed in the amount sought by the first respondent.

83    There will be orders accordingly.

Associate:

Dated:    5 September 2012