BTJ16 v Minister for Immigration and Border Protection

The claim made for a visa 8 The learned primary judge offered, at [6] and [7], a succinct summary of the basis upon which the appellant claimed the visa. This I gratefully adopt: 6. … The Applicant claimed that he might be killed in Albania by family members and relatives of a girl with whom he had been in a relationship. He claimed they have threatened him on several occasions. He claimed that he had met the girl in September 2010 and started a discreet love affair with her. Five months into their affair, the girl told him she was engaged to marry another man. In June 2012, the cousins and the girl's brothers saw the Applicant and girl kissing in a car. The man's family broke off the engagement. This triggered a "blood feud" between the Applicant's family and the girl's family. The girl's family rang the Applicant's father and told him they were going to kill the Applicant. They wanted revenge. The next day the Applicant was approached by three men at a petrol station. One of the men hit the driver side window. The Applicant drove off and the men followed him to his house. They could not catch him before he entered his house. The Applicant claimed he "was hiding for 8-9 months and hardly left the house" and on one occasion when he did, going to his uncle's house, at his uncle's house, "someone started firing gunshots..." 7. ... The delegate noted the Applicant's claims for protection as set out in his application for the visa and in a more detailed written statement provided to the delegate at interview. The Applicant also made claims during the interview with the delegate which included, as set out in paragraph 57 of the Tribunal's Statement of Decision and Reasons…, that other members of his family were scared for their safety; that his brother had stopped going to school; and his father only goes out at night. In support of his claims the Applicant submitted a copy of a certificate issued by the Committee of Nationwide Reconciliation (CNR) on 18 June 2013 and signed by Mr [Y] stating that there is a blood feud between the Applicant's and the girl's families. He also submitted several documents relating to the work of the CNR. The delegate found the Applicant to be "not a credible witness. I find that his claims are made up." Additionally, the delegate did not accept any of the documentary evidence submitted by the Applicant. The delegate stated in his decision record "The Department has credible information that the Chairman of the NRC, Mr [Y], ran a 'document mill' providing fraudulent certificates for false asylum seekers and criminals. It appears that Mr [Y]'s activities have long been of concern to the UNHCR and other governments." [emphasis in original] 9 As s 425 of the Act required, the Tribunal offered the appellant the opportunity of a hearing in respect of his claim. He took up this opportunity. Originally the hearing was to occur in February 2016 but had to be postponed because of an apparent suicide attempt by the appellant. In the result and after another postponement due to the unavailability of an interpreter, the hearing took place on 29 March 2016. He then advanced a further basis for his claim for the visa. Details of that further claim, what transpired at the hearing and what the Tribunal made of the appellant and, related to that, of his various bases of claim for the visa were also helpfully summarised by the learned primary judge. In this respect also, I gratefully adopt his Honour's summary (at [10] - [13]). The passage concerned, which includes quotes from the Tribunal's reasons (termed, "Decision Record" by his Honour), though lengthy, is desirably set out in full, given the grounds of appeal and the way in which those grounds were developed: 10. … The Tribunal recorded in paragraph 39 of its Decision Record:- "The applicant appeared lucid and answered all the questions the Tribunal had, except in relation to the adverse information raised by the Tribunal pursuant to s.424A." 11. At the hearing on 29 March 2016, the Applicant raised a new claim. He claimed that a member of the Albanian Parliament had argued with the Applicant's family over a fishing dispute and had shot several members of the Applicant's family at a police station. After considering this new claim, the Tribunal decided to schedule a second hearing for the Applicant to attend on 20 April 2016. However, at that rescheduled hearing the Applicant appeared before the Tribunal and stated that he was unable to give evidence because he was too unwell. The hearing did not proceed further and the Tribunal wrote to the Applicant on 21 April 2016. As reported in paragraph 41 of the Decision Record:- "It put all the remaining questions it had in writing and gave the Applicant until 17 May 2016 to answer the questions and to respond to adverse information. The adverse information included the matters raised orally at the hearing on 29 March 2016 under s.424AA of the Act as well as other adverse information." 12. The entirety of that correspondence from the Tribunal to the Applicant is in evidence before the Court as contained in Court Book pages 229 to 234 inclusive. Relevantly, the correspondence is as follows:- ...The Tribunal has an obligation to invite you to appear before it, under s.425 of the Act. You already attended a hearing on 29 March 2016. At that hearing you appeared to be lucid and able to give evidence, present arguments and participate meaningfully. You were invited to a second hearing on 20 April 2016. You came to the Tribunal on that date, but you indicated that you were too unwell to give evidence and present arguments. You asked the Tribunal to give you a list of questions in writing, rather than to wait for your mental health to improve so that you can come to a second oral hearing. The Tribunal takes this to mean that you consent to the Tribunal deciding the review without the applicant appearing before it under s.425(2)(b). On 20 April 2016, the Tribunal was also expecting to receive a response to the adverse information raised at the first hearing. In order to avoid any confusion, the Tribunal has included the s.424A information again, as well as some further s.424A information together with a list of questions. As discussed on 20 April 2016, in terms of the mental health evidence before it, the Tribunal has two letters from Dr Ngo and the discharge summary sheet from the emergency department from 15 February 2016. Dr Ngo's first letter from 10 February 2016 diagnosed you with depression and anxiety disorder. The second letter from 19 April 2016 - with post-traumatic stress disorder. In emergency, in February, you were diagnosed with depression and "Situational crisis with suicidal ideation", although at the time of your discharge you were said not to be a risk to yourself. Both on 29 March 2016 and on 20 April 2016 you said you were taking medication for your mental health issues, but you did not remember what it was. At the hearing on 29 March 2016 you said you would contact your representative after the hearing and tell him what medication you are taking, but you did not do so. Neither letter from Dr Ngo mentions any medication. The discharge summary from emergency states that you would sometimes take painkillers, but no other medication is mentioned. The Tribunal would like further clarification, within the time provided to respond to the other written questions about (1) your diagnosis given that the two letters from Dr Ngo contain two different diagnoses; and (2) what, if any, medication you have been taking other than painkillers since you first came to Australia. You are invited to provide this information in writing, within the same time period as the responses to the s.424A adverse information. New Issue - Mr X The only issue the Tribunal wanted to discuss with you on 20 April 2016 relates to Mr [X]. On 29 March 2016 you told the Tribunal that a member of Parliament (or Deputy) called [X] had had an argument with members of your family [who] were threatened and injured by this MP. The Tribunal's own research shows that these incidents did in fact take place. However, country information also indicates that Mr [X] has been charged in relation to these alleged offences. The Tribunal has been unable to find any information which indicates that Mr [X] or anyone associated with him has threatened, harassed or harmed in any way any member of your family since the night of 4-5 September 2015. Country information indicates that Mr [X] was detained after this incident and stripped of his parliamentary immunity. He was charged with illegal possession of a firearm, causing serious injury and making death threats ... The Tribunal's questions are as follows: 1. Do you have reason to believe that Mr [X] or anyone associated with him has threatened, harassed or harmed in any way any member of your family since the night of 4-5 September 2015? 2. If you believe so, on what evidence do you base your belief e.g. phone calls to relatives, emails, letters, newspaper articles? Please provide as much detail and supporting evidence as possible. 3. Given that Mr [X] was arrested, stripped of his parliamentary immunity and charged with various criminal offences, why do you fear harm from Mr [X] or anyone associated with him, if you were to return to Albania? ... Part 2: Adverse Information In conducting its review, the Tribunal is required by the Migration Act 1958 to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review. Please note, however, that the Tribunal has not made up its mind about the information set out at (1) and (2) below. (1) Mr [Y] At the first hearing the Tribunal put adverse information to you for comment pursuant to section 424AA. The Tribunal is putting the information to you for comment pursuant to s.424A. The particulars of the information are as follows: In 2011 Mr [Y], head of the National Reconciliation Committee, was arrested and charged with fraud for providing false attestation letters in exchange for payment. Albanian television program Fiks Fare filmed Mr [Y] with a hidden camera accepting 300 euros in exchange for issuing an attestation letter and creating a 'vendetta file' for a woman he had just met, and telling the woman that her brother must say during a hearing that he has proof he is still in danger. The documents were subsequently used by the woman's brother to seek asylum in the United Kingdom. According to the Committee of Nationwide Reconciliation which issued a "Report of the National Assembly of Reconciliation Missionaries and the Committee of Nationwide Reconciliation about the Annual Expedition of Reconciliation Missionaries for the Unconditional Freedom of Isolated Women and Children", dated 7 July 2012, people traffickers together with corrupt police and politicians have been seeking to tarnish the reputation of Mr [Y]. In another letter, the National Reconciliation Committee claimed that money charged to the woman filmed in Fiks Fare was charged to cover logistics costs. In May 2012 the Albanian authorities confirmed that no criminal proceedings were continuing against Mr [Y]. However, in 2014 it was reported that an arrest warrant had been issued against [Z], resident of Durres and head of the National Assembly of the Missionaries of Nationwide Reconciliation of Albania and the Committee for Reconciliation for the District of Durres and two others for active corruption in the private sector and forgery of documents. It was also reported that 12 people were arrested in Shkoder in 2014, including the local secretary of the National Reconciliation Committee for issuing false attestation letters. The IRBC found that the National Reconciliation Committee is the organisation most frequently mentioned by sources consulted in Albania as being linked to accusations of corruption and issuing false attestation letters. In 2012, the Immigration and Asylum Chamber of the Upper Tribunal (UK) found that the National Reconciliation Committee and Mr [Y] are wholly unreliable and that no weight can be placed on the attestation letters they produced. If the Tribunal accepts this information, it may find that the correspondence from Mr [Y] contains false claims. This may lead it to find that your claims of past harm are fabricated that you have never been involved in a blood feud. It may also lead the Tribunal to find that you are not a credible witness and that you do not fear harm on return to Albania. The information, if accepted, would be the reason or part of the reason for affirming the decision of the Department of Immigration. There is other adverse information that the Tribunal wanted to discuss at the Tribunal hearing on 20 April, which information, if accepted, would be the reason or part of the reason for affirming the decision under review. (2) Mr [X] and the events of 4-5 September The particulars of the information are: You claim that your family, including your brother [W] and your father, is involved in a blood feud and they remain inside the house, because they may be killed if they go outside. However, according to a press release by the Prosecutor General from December 2015 your family operates a bar. In addition, on the day of the "attack" by Mr [X], your brother [W] was at the bar. When an argument between [W], your cousin [V] and Mr [X], your brother called your father on the phone and asked him to come immediately to the bar where the argument happened. Your father got in his car and attempted to drive to the bar... Further, Mr [X] was detained after the incident on 4-5 September 2015, stripped of his parliamentary immunity, charged with illegal possession of a firearm, causing serious injury and making death threats... The information is relevant because it is inconsistent with the claim that the family was in hiding. In the Tribunal's opinion it would be extremely difficult, if not impossible to operate a bar while in hiding in one's house. Furthermore, your brother was at the public bar on 4 September and on the same day when he contacted your father, your father left the house and attempted to drive to the bar. If the Tribunal accepts the above information is correct, it may find that your brother and your father are moving freely around their town and that you have made up the family feud claims. In addition, the Tribunal may find that after 4-5 September 2015, Mr [X] has not presented a threat to any member of your family and therefore you have made your up claim to fear harm from him or people associated with him on return to Albania. As a consequence of relying on the above information, the Tribunal would reject your protection claims on credibility grounds and affirm the decision to refuse you a visa. You are invited to give comments on or respond to the above information in writing... [emphasis in original] [footnote references omitted] 13. The Applicant's migration agent responded to the Tribunal's request on the Applicant's behalf by firstly, seeking an extension of time within which to reply, which was granted by the Tribunal, and thereafter by a series of emails comprising submissions from the Applicant's representative together with information and news articles. The Tribunal received no further material from the Applicant himself. 10 The Tribunal's reasons reveal that it was not satisfied that the appellant met the visa criteria specified in either s 36(2)(a) of the Act or 36(2)(aa) of the Act because it was not satisfied as to his credibility. The Tribunal went so far as to conclude that his claims in relation to the girl's family to have been fabricated. The Tribunal pointed to the appellant's failure to mention either in the visa application or in a detailed statement furnished by him for the purposes of the hearing that he travelled to Greece in March-April 2013, to his acknowledged return to Albania in April 2013 notwithstanding his claim to have been in hiding because of the blood feud and to the absence of any harm on and from 2015 to any of his relatives remaining in Albania notwithstanding that feud as reasons why it did not accept his visa claim as credible. 11 In reaching its conclusion, the Tribunal also quoted extensively from, and relied upon, country information concerning claims in respect of "blood feuds" in Albania: [Blood feud claims] are claims which British officials say are almost always bogus - or at the very least, not what they appear to be. Waiting for an appointment outside Mr [Y]'s office is a case in point - Bajram Cani, a retired labourer tells how his daughter, Drita, murdered her husband and both her parents-in-law after they tried to force her into "immoral acts". She later killed herself too. That was in 1996. For the last 20 years, Mr Cani, 77, has technically been in a "blood feud", although he candidly admits that no-one is immediately threatening to kill him and that the family of his former in-laws - most of whom are now dead - are living just a few doors down from his current home. "I am not afraid for my life, but I am hoping that Mr [Y] can provide me with a paper confirming that I am in a feud situation before I migrate to Germany," he says. "The paper will help me when I get to Germany. I need to go for my health; it is too hot here for me." Such blood feud "certificates" have flooded the European asylum system, officials say, to the point where the published Home Office guidance to UK asylum tribunals warns that such or attestation letters "should not in general be regarded as reliable evidence of the existence of a feud". Nicholas Cannon, Britain's ambassador to Albania, has gone even further, using a 2013 speech to accuse local government officials and NGOs of developing "a business in so-called blood feud certificates" that feeds off the outdated Balkan stereotype of Albania as backward and dangerous. "There is no reason for any Albanian to seek asylum in any EU country - not for political or security reasons," Saimir Tahiri, the interior minister in Albanian's Socialist Party-led government, told The Telegraph. Despite an Albanian government crackdown, Mr [Y] - who was himself investigated by police for selling forged certificates in 2014 before all charges were dropped after he successfully argued the charges were politically motivated - remains in business, and defiant. Asked about Mr Cannon's criticisms, he says. "He doesn't know what he's talking about - in fact, as an ambassador, he couldn't find the tail on a donkey." As for the interior minister, Mr [Y] is equally scathing. "The minister just repeats the party line; he says all that stuff because he wants the British ambassador to believe him and because that is what Europe wants to hear - so they can make Albania a member of the EU." … As we drive, we ask Mr [Y] about the case of Mr Cani, the old labourer who wants to move to Germany with his wife. Mr [Y] - unaware that Mr Cani has already explained he is not in fear of his life - tells a rather different story to the old man. "Sure he's frightened for his life. They are hunting him to kill him," he said, before adding he will give a letter supporting the case. 12 The learned primary judge concluded that the Tribunal had complied with the requirements of the Act in relation to the review it conducted and had done nothing more than reach a factual conclusion, absence of satisfaction, reasonably open to it on the material before it.

Grounds of appeal 13 As pleaded, the grounds of appeal are: 1. The learned Federal Circuit Court judge erred by failing to find that the tribunal did not conduct a proper review in accordance with Part 7 of the Migration Act 1958; 2. The learned Federal Circuit Court judge erred by failing to find that the tribunal misinterpreted and/or misapplied s 36 of the Migration Act 1958. 14 With all due respect to their author, these grounds conceal more than they reveal about the errors allegedly made by the primary judge. Such is their generality, I doubt whether either ground meets the specification in r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) that a notice of appeal must state, "briefly but specifically, the grounds relied on in support of the appeal" (emphasis added). 15 Particularity was, however, supplied by Mr Boccabella of counsel in his written submissions, which were engagingly developed on the hearing of the appeal. With consummate fairness, the Minister, by his counsel, Mr Yuile, did not quibble with the adequacy of the pleading of the grounds of appeal but instead chose to meet on the merits the way in which the grounds can to be particularised in the appellant's submissions.

Did the tribunal become a contradictor? 16 The way in which the Tribunal was said not to have conducted a "proper review in accordance with Part 7" of the Act was that the member constituting the Tribunal had, on the whole of the evidence concerning the proceedings in the Tribunal, become a contradictor. 17 There was no dispute between the parties as to governing principles concerning the proper role of the Tribunal, only as to how they fell for application in the circumstances of the present case. 18 Thus, the parties were as one that the core function of the Tribunal was to review the decision of the Minister's delegate: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129, [25] (SZIAI). It was accepted that, though this was the Tribunal's core function, SZIAI also established that jurisdictional error might be found in the circumstances of a particular case if the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained. Also common ground was that the Tribunal was not obliged to accept uncritically either the evidence tendered or the submissions made to it by the appellant: as to this, see, for example, recently: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91, at [88]. 19 Save in the respects which I now detail, the case for the appellant was not that the Tribunal had failed to make an inquiry but rather that, when one had regard to inquiries which the Tribunal did make and viewed them in context, what was revealed was that the Tribunal had stepped outside its statutory remit of review and, instead, become a contradictor. This was said to be evident from the following: (a) [The Tribunal] [c]arrying out out its own investigation prior to the hearing and not supplying the material it found to the appellant prior to the hearing; (b) It relied on material supposedly from other tribunals about the credibility of one [Mr Y] without seeking to obtain the original material on which adverse inferences were drawn; (c) The Tribunal was asked to receive evidence from Mr [Y]; this was ignored; (d) On key issues the Tribunal drew adverse inferences without considering there might be a positive or innocent explanation: (i) The Tribunal was incredulous that the young girlfriend would have sex with the appellant when she had been promised to another man who she didn't want to marry, yet an obvious explanation is that she wanted to sabotage that marriage; (ii) The tribunal was incredulous that the shooting attempt would occur around the nearby uncle's house rather than at the appellant's house, not recognizing that the assailants don't have to lie in wait - they can be opportunistic; (iii) Similarly with the return from Greece briefly to see his sick mother, a person could risk a short visit and be very careful but it is the day to day long term risk which is what needs to be assessed; (iv) The Tribunal misunderstood the appellant's case. As the appellant was the person who had sexual relations with the daughter in another family, inevitably he would be the main target, not his father or brothers (see paragraph 113 of the tribunals reasons AB 370); (v) The tribunal's statement that the girlfriend … did not exist has insufficient reasoning attached to it; (vi) The tribunal cited adverse material but not the positive material eg quoting the adverse aspects of the Daily Telegraph article but ignoring that the article concluded that there was a 'kernel of truth' in these blood feuds. [sic] 20 As developed in submissions, the impropriety on the part of the Tribunal was that, by its conduct of the review and its reasons, an apprehension of bias was evident. That the conduct of a review by a Tribunal might give rise in particular circumstances to an apprehension of bias was accepted in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. That an apprehension of bias might conceivably be found in the language employed by the Tribunal in its reasons was allowed in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (SZJSS), although none was found in the circumstances of that case. 21 The riposte by the Minister to this alleged impropriety included these submissions: (a) The Tribunal was acting entirely within the statutory procedural fairness requirements, notably s 424AA of the Act, in putting adverse material orally to the appellant in the course of the hearing. (b) Section 424AA aside, more than once during the hearing the Tribunal explained to the appellant that it was open to him to seek an adjournment to respond to the adverse material which it put to him. (c) The appellant did not seek an adjournment. Instead, what occurred was that, after the hearing, the Tribunal reiterated in a letter the adverse material it had put to the appellant in the hearing (as is apparent in the excerpt quoted above) and the appellant responded in writing to the Tribunal in relation to this material. 22 These submissions of the Minister should be accepted. 23 The Tribunal was entitled to make its own inquiries (s 424 of the Act), and so to do in advance of the hearing. It is a moot point as to whether all of the fruits of those inquiries, which were not just about Mr Y or even just about the National Reconciliation Committee constituted "information" which gave rise to an obligation under either s 424AA or s 424A but the course adopted by the Tribunal of putting all that the Tribunal considered potentially adverse both at the hearing and thereafter hardly contravened that obligation. The Tribunal's conduct would have met any general procedural fairness obligation which, these provisions apart, would otherwise have attended its use of the material for the purposes of the review. 24 It is also necessary to remember that the Tribunal is not bound by the rules of evidence: s 420 of the Act. That the information before the Tribunal, including that gathered by it, contained some hearsay rather than firsthand information did not mean that the Tribunal could not act upon hearsay. The weight to give particular items of information, including weight in light of a hearsay quality attending particular information, was a matter for the Tribunal. The Tribunal's obligation was to act on material logically probative of its conclusions. As Crennan and Bell JJ stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at [131]: If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 25 The Tribunal was entitled to look to the way in which other tribunals, including those abroad, had remarked upon Mr [Y], the National Reconciliation Committee and its certificates and general information about the position in Albania with respect to blood feuds. Of course, the Tribunal could not abrogate its review role of reaching its own conclusions on the material before it, but that is not what the Tribunal did. It put potentially adverse material to the appellant. He responded to that. The Tribunal then explained in its reasons why, taking all of the material before it into account, it was not satisfied that the appellant's claim was credible. The appellant's submission as to adverse inferences drawn by the Tribunal is really a solicitation to repeat the kind of error found in SZJSS, namely of the Court substituting its own evaluation of the material for that of the Tribunal and characterising this as jurisdictional error. Sometimes the apparent harshness of an administrative evaluation, especially if, as occurred in the present case, that point is attractively presented by an aggrieved visa applicant's counsel, can have Siren-like qualities in terms reaching a judicial conclusion as to the jurisdictional error of unreasonableness. But, as I have cause to remember, to succumb to the cries of that Siren is to be shipwrecked on the rocks of impermissible merits review: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. 26 These conclusions assist in the disposal of the apprehended bias allegation. The Tribunal could, conceivably, have put some of the material it had gathered to the appellant by email (by his migration agent) in advance of the hearing but it was not obliged to do this. Neither was the Tribunal obliged to seek out Mr Y or, by taking up the appellant's post-hearing offer, receive evidence from him. For the Tribunal itself to seek out and take evidence from him was not an obvious inquiry easily ascertained of the kind referred to in SZIAI. The appellant was entitled to support his case as best he could and chose. It was open to him to have made arrangements for Mr Y to have given evidence at the hearing via telephone. 27 Further, even if, as the appellant invited, one considers the propositions found in its reasons for a failure to be satisfied as to the bases of the claim in conjunction with the Tribunal's conduct before, during, and after the hearing, all that emerges, in my view, is the conduct of a review according to law and the reaching of conclusions reasonably open on the material before the Tribunal for reasons which are logically explained. It is just nothing to the point that, perhaps for reasons set out by the appellant in the eloquent submissions of his counsel, I might have reached a more benign view of the facts overall any more than it is nothing to the point that I might have reached the same view as did the Tribunal for the same reasons. More particularly, considered from the perspective of a reasonable bystander acquainted with its conduct and reasons, the Tribunal's conduct and reasons do not reveal it to have acted as a contradictor. Bias, actual or apprehended, is not to be found in the emphatic disagreement of a party with a tribunal's factual evaluation reasonably open on the material before it and logically explained.

Alleged misconstruction or misapplication of s 36 of the Act 28 An error on the part of the Tribunal, and a related error on the part of the primary judge, in understanding the meaning and effect of s 36(2)(a) or s 36(2)(aa) of the Act was said by the appellant to be found at [113] of the Tribunal's reasons: 113. The Tribunal considers that if the family was involved in a blood feud, it would have been too dangerous for the applicant's brother and father to leave the house, even if they were often accompanied by other relatives. If the extended family could provide such level of protection to other members of the applicant's family, he himself could have remained in Albania. 29 The appellant submitted that his claim was not that those perpetrating the blood feud were maintaining a 24 hour watch on him. Rather, it was that those perpetrating the blood feud would take an opportunity, as it arose, to harm him. That claim, it was submitted, aligned with the "real chance" explanation of the criterion found in s 36(2)(a), given in Chan v Minister For Immigration And Ethnic Affairs (1989) 169 CLR 379 (Chan) and also with the notion of "real risk" found in s 36(2)(aa) of the Act. 30 But this submission depends on a premise, namely, acceptance of the credibility of the appellant in relation to the existence of any blood feud as claimed, which is contrary to the conclusion reached by the Tribunal. 31 Further, to read [113] of the Tribunal's reasons in isolation is to commit a vice against which the High Court counselled in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal's understanding of what amounted to a well-founded fear of persecution was stated in the opening part of its reasons, at [13]: A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of being persecuted for a Convention stipulated reason. 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. 32 This statement is obviously derived from Chan. It exhibits a correct understanding of the criterion found in s 36(2)(a). Reading the reasons fairly and as a whole, as one must, it was this understanding, and the explained absence of satisfaction as to the appellant's credibility, which informed the Tribunal's conclusion, at [124] of its reasons, that it was not satisfied that the appellant had a well-founded fear of persecution. 33 In turn, that absence of satisfaction as to the appellant's credibility informed the separate consideration by the Tribunal of the criterion found in s 36(2)(aa) of the Act. In that consideration the Tribunal, correctly, as [127] and [128] of its reasons reveal, looked to whether there was a real risk of significant harm to the appellant. Unsurprisingly in light of its absence of satisfaction, the Tribunal found there was no real risk. 34 There is, therefore, no merit in this alternative ground of challenge. Instead, the learned primary judge was correct to reject the ground of review which sought to raise such errors.

Disposal of appeal 35 For the reasons given above, the learned primary judge was not in error in ordering the dismissal of the appellant's judicial review application. The appeal must be dismissed, with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.