FEDERAL COURT OF AUSTRALIA MZXGH v Minister for Immigration & Citizenship [2007] FCA 344 MZXGH AND MZXGI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL VID1336 OF 2006 JESSUP J 19 MARCH 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID1336 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXGH First Appellant MZXGI Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 19 MARCH 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The name of the first respondent as shown in the title to the proceeding be amended to Minister for Immigration and Citizenship. 2. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID1336 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXGH First Appellant MZXGI Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 19 MARCH 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 17 November 2006 dismissing an application for an order that the respondents show cause why a remedy should not be granted in the exercise of that court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ('the Act') with respect to a decision of the Refugee Review Tribunal ('the Tribunal') made on 12 December 2005, and handed down on 20 December 2005, to affirm the decision of a delegate of the respondent Minister not to grant a protection visa to the appellants pursuant to the Act. 2 The appellants are husband and wife, and are nationals of Kyrgyzstan. It was the appellant husband who claimed to be a refugee within the meaning of Article 1A(2) of the Refugees Convention. The appellant wife did not make any distinct claim to be a refugee in her own right, but relied upon the claims of her husband. I shall refer to the husband as "the appellant". 3 The appellant arrived in Australia on 4 June 1997, and applied for a protection visa on 24 August 1998. An earlier decision by the Tribunal was set aside by the Federal Magistrates Court, and the proceeding in the Tribunal to which the present application in that court related commenced in May 2005. Considerable material was placed before the Tribunal by the appellant, in addition to which the Tribunal had access to a deal of country information which it had obtained from other sources. The appellant appeared at an oral hearing before the Tribunal on 9 September 2005. 4 Before the Tribunal, the appellant claimed to have a well-founded fear of being persecuted for reasons of race, membership of a particular social group and political opinion. On the matter of race, the appellant claimed that his mother was Jewish, and that his own part-Jewish ethnicity was the cause of the persecution which he feared. On the matter of membership of a social group, the group which he identified consisted of Russian-speaking citizens of Kyrgyzstan, and that that circumstance too gave rise to the persecution which he feared. On the matter of political opinion, the appellant claimed that certain opinions would be imputed to him by reason of his work in the service of particular government agencies involved in what was described as the "Mass Privatisation Program" undertaken in Kyrgyzstan in the mid-1990s. Although this third aspect was relevant in the appellant's application in the Federal Magistrates Court, he had made nothing of it in his appeal to this court. The only dimensions of the proceeding in which he claims that the Federal Magistrate made appealable errors are those relating to the appellant's Jewish ethnicity and his membership of the group of Kyrgyzstanis who speak Russian. 5 The first point made by Mr Hamilton, who appeared on behalf of the appellant, related to the Tribunal's compliance with s 424A of the Act. To understand this point it is necessary to set out a passage from the Tribunal's decision: Similarly, the Tribunal does not accept the applicant would face a real chance of persecution for reason of him being a Russian speaker or belonging to a particular social group 'Russian-speaking nationals in Kyrgyzstan'. The Tribunal notes when it asked the applicant if he had experienced any problems because he was a Russian speaker, he claimed that when he was an interpreter with consultants who worked with agricultural reform, people in a position of power and official representatives of the government he met in regional areas, would refuse to talk claiming they needed a Kyrgyz interpreter despite the fact that they could speak good Russian. The Tribunal does not accept the trouble the applicant experienced during the course of his responsibilities as an interpreter constituted persecution. The applicant did not claim to have experienced any other difficulties or trouble due to him being a Russian speaker. Although, subsequent to the hearing before the Tribunal, the Tribunal sent the appellant a letter stating its concerns, in purported reliance upon s 424A of the Act, that letter said nothing about the circumstance that the applicant had provided no evidence of other difficulties which he had encountered by reason of being a Russian speaker. Mr Hamilton submitted that the Tribunal was obliged so to proceed pursuant to its obligations under that section. 6 In dealing with what constituted "information" for the purposes of s 424A, in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, 477, Finn and Stone JJ said: The word does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … With the agreement of Weinberg J, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, 222, Allsop J said that it was necessary "to exercise care" in applying what was said by Finn and Stone JJ about identified gaps, defects or lack of detail or specificity. His Honour said (at 264): If the tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision. As the facts in SZEEU demonstrated, in some contexts a "gap" in statements made by, or in information provided by, an applicant might, because of its inconsistency with statements or information later made or provided, qualify as "information" for the purposes of the section. In such a case, the information would not be the gap as such, but rather the circumstance that the applicant did not previously make the statement, or provide the information, later relied on. 7 In order to understand the way the Federal Magistrate approached this question, it is necessary to consider how the matter was put to his Honour. I was not provided with a transcript of the hearing before the Federal Magistrate, but Mr Hamilton tendered, without objection, a copy of his client's Contentions of Fact and Law in the Federal Magistrates Court (which was marked as Exhibit A). Those contentions referred to the passage in the Tribunal's decision which I have set out at par 5 above, and asserted that the Tribunal had not given the appellant particulars of information constituted, apparently, by its conclusion that he would not face a real chance of persecution by reason of being a Russian speaker. If this was the thrust of the way the matter was put to the Federal Magistrate in submissions, the way his Honour dealt with the point is understandable. His Honour said: Further criticism was made of the Tribunal's reference to country information when dealing with discrimination towards Russians or Russian speakers. It was submitted on behalf of the Applicant that the country information concerning this issue ought properly have been part of the s 424A letter. The First Respondent submitted that the reference to that country information was clearly not included in the s 424A letter and does not attract the attention of that section in circumstances where the information is not specifically about the Applicant. Hence, it was submitted s 424A(3)(c) [sic – should be (a)] applies. I agree with that submission as clearly the country information is not specifically related to the Applicant. In any event, I am otherwise satisfied that there could not be any denial of procedural fairness in circumstances where, during the course of the hearing, the Tribunal put to the Applicant the content of that country information and received an appropriate response. From these reasons, it is apparent that the Federal Magistrate considered that he was dealing with a submission that "country information" should have been the subject of a notice under s 424A of the Act. If that were the submission then made on behalf of the appellant, it would manifestly have been answered by subsection (3) of the section, par (a) of which makes subsection (1) inapplicable to information that is not specifically about the applicant before the Tribunal. 8 However, in the way the matter was put to me, it was the concluding sentence of the passage which I have set out in par 5 above that constituted information for the purposes of s 424A(1) of the Act, namely, the absence of a claim by the appellant to have experienced other difficulties or trouble due to being a Russian speaker. If that deficiency constituted "information" for the purposes of s 424A, it was specifically about the appellant, and thus not excluded by par (a) of subsection (3). 9 For my own part, I consider that no failure to comply with s 424A(1) is disclosed by the Tribunal's decision in presently relevant respects. First, I consider that, in the last sentence of the passage set out in par 5 above, the Tribunal was going no further than to indicate that, in the discussion which went before, it had referred to all of the instances in which the appellant claimed to have experienced difficulties or trouble due to being a Russian speaker. It was not holding that the omission gave rise to a contrariety or inconsistency in the appellant's story, the result of which might be to cast doubt upon other evidence which might be favourable to the appellant, or to sully the appellant's credibility generally. The omission could not, therefore, be regarded as "information" in the sense explained by Allsop J in SZEEU. 10 Secondly, it is necessary to observe the procedural context in which the Tribunal expressed that part of its decision that I have set out in par 5 above. It is evident from earlier parts of the Tribunal's decision that the Tribunal was here referring to an interchange between the appellant and itself at the oral hearing. What the appellant said about the attitude of people in positions of power, and official representatives of the government, was conveyed to the Tribunal by the appellant himself in the course of that hearing. When the Tribunal added its final observation to the effect that the appellant did not claim to have experienced any other difficulties or trouble due to him being a Russian speaker, it was, I consider, stating no more than that, at the hearing, the appellant went no further than as previously indicated. If the appellant's omission to go further should (contrary to what I have held above) be regarded as "information" for the purposes of s 424A(1), I consider it to have been information given by the appellant for the purposes of his application within the meaning of par (b) of subsection (3), and thus excluded from the operation of subsection (1). 11 In the circumstances, although my reasons are different from those of the Federal Magistrate (possibly because the matter has been put to me with a different emphasis), ultimately I would not hold that his Honour was in error in ruling that the Tribunal's treatment of the appellant's claim to have encountered difficulties as a result of being a Russian speaker was not infected by any failure to comply with s 424A of the Act. 12 Mr Hamilton's second point was that the Tribunal erred by placing reliance on outdated information. He commenced by referring to the following passage in the early part of the Tribunal's decision: 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. Mr Hamilton submitted that the Tribunal properly instructed itself in this respect, but proceeded to disobey that instruction. The appellant was last in Kyrgyzstan in 1997, and much of the material – written and oral – which he placed before the Tribunal related to his own experiences, and things which he observed, in the period leading up to his departure. Notwithstanding that this material was advanced by the appellant himself, and relied upon to establish that he had a well-founded fear in the Convention sense, Mr Hamilton submitted that the Tribunal made a jurisdictional error by relying on that material, or (in what may have been a slightly more sophisticated way of putting it) by according to that material a significance which was no less than that accorded to evidence of more recent events. He relied upon Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351, in which McHugh, Gummow and Hayne JJ referred to Craig v South Australia (1995) 184 CLR 163, 179 as exemplifying the kind of errors that would be jurisdictional. 13 One does not find any specific reference to this point in the reasons of the Federal Magistrate, and it does appear to have been covered, at least in substance, in the written contentions then filed on behalf of the appellant. Mr Knowles, who appeared for the respondent Minister, proposed that the point was covered by the following paragraph in the Federal Magistrate's reasons: It is noted that the Applicant's submissions to a large event, in my view, seek to challenge the fact-finding process and in a sense join issue with the Tribunal's findings in what effectively may be regarded as criticism of the weight given to certain material and the rejection of the Applicant's claims. The criticisms made in the Applicant's submissions seek effectively to reagitate factual issues which, upon judicial review, is impermissible. The assessment of the material and the weight given to it by the Tribunal, albeit resulting in adverse findings for the Applicant, does not reveal any jurisdictional error. At least as they were articulated before me, I do not believe that it would amount to a fair description of the appellant's submissions to say that they sought to go no further than to reagitate factual issues. In at least the more absolute form of the submissions, I understand Mr Hamilton to have gone so far as to say that the applicant's own evidence of his experiences in Kyrgyzstan in the period leading up to 1997 were irrelevant, and should not have been taken into account by the Tribunal. Given that it was the appellant himself who put those matters before the Tribunal, and asked the Tribunal to have regard to them, this submission had a certain heroic aspect to it; but it would not be correct to describe the submission as no more than an attempt to reagitate issues of fact. 14 There is a further dimension to this submission on behalf of the appellant to which I should refer. The submission was not merely that recent and contemporaneous events were very much more relevant to the question of refugee status than events which occurred many years ago: the submission had what Mr Hamilton urged was particular significance, and more than ordinary force, in the circumstances of this case. According to country information which was before the Tribunal, in March 2005 the President of Kyrgyzstan was effectively forced to flee the country by what was described in some reports as a "revolution". That event was, it seems, accompanied by a deal of civil unrest, some looting of property and other unlawful and disorderly behaviour. In addition to the country information, the appellant informed the Tribunal that his father's art studio was set on fire on 20 April 2005, and that his mother was attacked by unidentified people on 25 March 2005, at which time she was injured. 15 Some of the country information which was before the Tribunal involved claims (which, as the Tribunal pointed out were not first-hand claims) that the position of Jews and Russian speakers in Kyrgyzstan had become perilous since the events of March 2005. It was implied, if not directly stated, that the government now in office in Kyrgyzstan would be much less inclined to protect the position of the Jewish and Russian-speaking minorities than had been the administration of the ousted President. 16 The events of March 2005 in Kyrgyzstan were both recent and topical at the time when the Tribunal considered the appellant's application. It had regard to a deal of country information, which it located by its own researches, with respect to the uprising and the change of government generally, and to the circumstances of the Jewish and Russian-speaking sectors of the population in particular. From my reading of its decision, the Tribunal was keenly aware of the reliance which the appellant placed upon these recent events, and obtained a deal of information from independent, apparently credible, sources with respect to the concerns which the appellant expressed. As I have indicated above, the appellant accepted that the Tribunal properly instructed itself with respect to the time frame within which it was required to ask the questions presented by the Refugees Convention. There is, in my view, no substance in the suggestion that the Tribunal did not take recent events into account. It is apparent that the appellant does not concur with the Tribunal's assessment of those events, but that is a circumstance which does not establish jurisdictional error. 17 I would reject the proposition that, as a matter of law, the Tribunal was not entitled to take into account events which occurred many years ago. Those events were, after all, put before the Tribunal, and relied upon, by the appellant himself. As submitted by Mr Knowles, had the Tribunal not taken those events into account, it might rightly have been accused of not giving the appellant a fair hearing. It was not suggested that the Tribunal had relied upon the pre-1997 events to the exclusion of contemporary events. Rather, it was said that the Tribunal should have ignored the evidence of the pre-1997 events, or at least depreciated the significance of that evidence to a point where it effectively had no impact upon the Tribunal's determination. As a matter of law, I consider that this submission is quite without foundation. Jurisdictionally, it would be necessary for the appellant to make good the proposition that the pre-1997 events were wholly irrelevant to the Tribunal's determination of the matter before it. That proposition is not made good merely by observing that the ultimate question of a "well-founded fear" must be decided on the facts as they exist at the time of the decision, and into the foreseeable future. A decision with respect to those facts will, I consider, almost inevitably be better-informed, and more safely made, if the decision maker builds his or her deliberations upon at least some background material constituted by events of the past. 18 I also consider that, when properly analysed, this point of the appellant's involved something of a non-issue. The Tribunal dealt with the pre-1997 events not because, independently of the exertions of the appellant, it considered that those events provided evidence adverse to the appellant's claims. In the present case, the Tribunal dealt with those events because they, or other events of that time, were advanced by the appellant in support of his claims. It was the appellant's own claims which made the events relevant in the proceedings before the Tribunal. The Tribunal was dealing with those claims. Far from being beyond its jurisdiction to proceed in this way, I consider that the Tribunal was legally obliged by the common law requirements of procedural fairness (which applied in the circumstances of this case) to do so. 19 Mr Hamilton's third point was that the Tribunal overlooked country information to the effect that the police in Kyrgyzstan were severely under-resourced and the Interior Ministry was corrupt. In this respect he submitted that the Tribunal failed to have regard to relevant material. The point was made in the context of the Tribunal's findings as to the authorities' response to certain intimidatory or criminal behaviour. The Tribunal referred to a report that, in March 2002, a Mosque had broadcast calls for violence against Jewish persons over loudspeakers in Bishkek, but noted that the authorities provided adequate protection by investigating the incident and having the Mosque leaders apologise to the local Jewish Cultural Society. The Tribunal also referred to the attack on the appellant's mother on 25 March 2005, in which she sustained an injury. The appellant himself had provided a statement, with translation, of a certificate from the Interior Ministry office, certifying that the appellant's mother had lodged a complaint about that attack. The Tribunal accepted that the appellant's mother may have been subjected to this assault, at the time of the violence and upheaval associated with the "revolution", but found that she was afforded adequate state protection since she was able to lodge a report with the criminal investigation department in the Interior Ministry office. 20 The material upon which the appellant relies was provided to the Tribunal under cover of a statutory declaration declared by the appellant on 30 November 2005. One item was a publication of an organisation called "Institute for War and Peace Reporting", and referred to serious under-resourcing of police in Kyrgyzstan in the context of the problem of organised crime, to which the article referred as "the mafia". Another item was a short extract from the website of an organisation called "Radio Free/Radio Liberty", in which the Prosecutor-General of Kyrgyzstan warned that the country could plunge into "total lawlessness if authorities don't take measures against rising criminality and religious extremism". He warned that organised crime groups were merging with terrorist and religious extremist groups, which he said were spreading. He said that some members of the state law enforcement agencies were working with criminals. 21 Although the Tribunal did not refer specifically to this material in its decision, it referred to the correspondence from the appellant in which the material was referred to, and in which copies were enclosed. It described this correspondence as a "detailed response to all the issues identified" in its letter sent to the appellant in accordance with the requirements of s 424A of the Act. There is no basis upon which I should not assume that the Tribunal read and considered the material, for such value as it had in the disposition of the appellant's claim. The ground of jurisdictional error constituted by ignoring relevant material (see Craig, 184 CLR at 179) is not, I consider, made good merely by pointing to a particular piece of evidence presented by a party and to the absence of any ostensible reference to that evidence in the reasons of the Tribunal. Particularly in a case such as the present, where the Tribunal has referred to the circumstance that it received the evidence in question, the court should not readily assume that the evidence was overlooked. I do not make that assumption. 22 For my own part, I could understand that the Tribunal might consider that the materials forwarded by the appellant in November 2005 were equivocal in the context of the application before it. The first item to which I have referred was concerned with organised crime and, although it undoubtedly complained of a deficiency in police resources, the subject matter of the item was not self-evidently responsive to the proposition accepted by the Tribunal that the circumstance that the interior Ministry had recorded the fact of the appellant's mother's complaint of assault tended to indicate that the authorities in Kyrgyzstan would, at least within their capability, treat such conduct as criminal. In this respect, it should be remembered that the question which arises under the Refugees Convention, is not whether the law enforcement authorities of the country in question are generally effective in dealing with criminal behaviour: it is whether those authorities are so systematically and selectively ineffective in relation to criminal or like behaviour which is directed to persons having the attribute referred to in the Convention as to justify the conclusion that a fear of persecution on the relevant ground is well-founded. It may be that the first article provided by the appellant in November 2005 was not concerned with matters relevant to the Convention at all, but it sufficient for me to conclude, as I do, that it was not so obviously relevant that the Tribunal's failure to mention it should be regarded as jurisdictional error. 23 The second item provided by the appellant in November 2005 is a little closer to the sphere of operation of the Convention, in that it refers to the coalescence of criminal gangs with religious extremists. There is, however, nothing in this brief note which is so clearly indicative of the existence of systemic religious or racist persecution for it to constitute a jurisdictional error that the Tribunal did not refer to it in terms in its decision. Besides, the note purports to be of an expression of concern by the Prosecutor-General of Kyrgyzstan himself, a circumstance which might, for all the court knows, have left the Tribunal with the impression that the problems of which the appellant complained were recognised by the authorities in Kyrgyzstan as an issue with which they had to deal. 24 Another difficulty with the appellant's point is that the Tribunal should be held to have failed to take into account a relevant consideration only if it could be shown that the Tribunal was required by law to take it into account: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39 and 55. In the present case, the relevant question was whether the fear of persecution, which the Tribunal assumed the appellant to have, was well-founded. How the Tribunal approached its treatment of the evidence which related to that question was essentially a matter for the Tribunal. Part of the evidence on which the appellant relied was that his mother had been subjected to an assault in March 2005. The Tribunal recognised that circumstance, but noted that the authorities had, apparently, recorded the fact of the assault as criminal behaviour. The appellant rejoined with the propositions that the police were under-resourced, and that there was corruption in the relevant ministry. The Tribunal noted that it had received the correspondence in which the appellant made that rejoinder and, as I have said, there is no apparent basis upon which I should not assume that the Tribunal took that correspondence into account for such value as it had. Manifestly, the absence of any overt reference to the questions of under-resourcing or corruption in the Tribunal's reasons does not sustain the proposition, as a matter of administrative law, that the Tribunal failed to take into account a relevant consideration. 25 Although I have dealt with this point on the merits, the point was not raised by the appellant in the proceedings in the Federal Magistrates Court. Necessarily, that court was not in error in presently relevant respects. No application was made on behalf of the appellant to rely upon the point but, at the same time, no objection was raised on behalf of the respondent Minister to my dealing with the point on the merits. 26 Mr Hamilton's fourth point was that the Federal Magistrate had failed to refer at all to so much of the appellant's jurisdictional challenge to the Tribunal's decision as related to its treatment of the matter of his Jewish ethnicity. The Magistrate's reasons make no reference to that aspect of the challenge, and it appears that the matter was agitated by the appellant in his contentions filed in the Federal Magistrates Court. Mr Knowles contended that the Magistrate dealt with this aspect in the paragraph of his reasons which I have set out in par 13 above. It is possible that the Magistrate did so proceed, since the relevant parts of the appellant's contentions before him were to the effect that the Tribunal's conclusion was not supported by recent country information, and that no reasonable person could reach such a conclusion. However, I am prepared to consider this point upon the basis that it was something put to the Federal Magistrate, but which he did not decide. 27 According to his Contentions of Fact and Law in the Federal Magistrates Court, the appellant's first submission on the matter of his Jewish ethnicity was that the Tribunal's conclusion that he would not face a real chance of persecution on that account was "clearly not supported by recent country information such that no reasonable person could make such a decision". Having read the Tribunal's decision – including quite lengthy extracts from country information that were germane to this point – I consider that there is no substance in the submission made on behalf of the appellant. I also agree with the implicit view of the Federal Magistrate that, in this respect, the appellant was seeking to re-argue matters of fact that had been determined by the Tribunal. 28 The second submission made by the appellant with respect to this point was that the material – particularly that relevant to the appellant's own experience in Kyrgyzstan – upon which the Tribunal relied was out of date and, therefore, irrelevant. I have dealt with this submission above, and there is nothing I would add in the particular context of the Magistrate's omission to deal with the appellant's Jewish ethnicity. 29 The third submission in support of this point was that the Tribunal did not understand how low was the threshold of fear which would qualify as being "well-founded" within the context of the Convention. That was, effectively, the fifth general point raised by Mr Hamilton, and I shall turn to it presently. Subject to what I conclude in relation to that point, I take the view that, if the appellant is correct in his contention that the Federal Magistrate did not deal with so much of his contentions as related to his Jewish ethnicity, having considered the matter for myself, I am unable to find any relevant error of jurisdiction on the part of the Tribunal. 30 Mr Hamilton's fifth point involved a kind of amalgam of the established jurisprudence with respect to what constitutes a "well-founded" fear and the rule as to Wednesbury unreasonableness. Mr Hamilton commenced by referring to the following passage in the Tribunal's decision: Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective 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 a 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 it well below 50 per cent. Mr Hamilton accepted that the Tribunal had properly instructed itself in this regard, but contended that its conclusion that there was not a real chance of the appellant being persecuted upon his return to Kyrgyzstan was, given the state of the authorities in this area, so unreasonable that no reasonable Tribunal could have reached it. He relied particularly upon the observation by McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429 that "an applicant for refugee status may have a well-founded fear of persecution although there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted." He submitted that it was plainly beyond the bounds of normal reason to contemplate that the appellant would not have something greater than a 10 per cent chance of encountering the kind of persecution which he claimed to fear. 31 Having, as Mr Hamilton accepted, correctly identified the approach which it should take to the question whether an assumed fear was "well-founded", the Tribunal consistently took that approach in assessing the evidence and other material which was before it, and, with respect to each of the dimensions of the appellant's claimed fear of persecution, expressed the conclusion that it was not satisfied (or that it did not accept) that there was a real chance that the appellant would face persecution if he returned to Kyrgyzstan. I cannot hold that these conclusions were so unreasonable that they would never have been reached by a reasonable Tribunal properly instructing itself. It is not the court's function to reconsider the factual material before the Tribunal, and I do not understand Mr Hamilton to have invited me to do so. The Tribunal's written decision is lengthy and apparently comprehensive. Far from giving rise to jurisdictional concerns of the kind for which Mr Hamilton contends, the Tribunal's decision strikes me as being both reasonable and, in the context of the material before it, somewhat unsurprising. 32 For the above reasons, I propose to dismiss the appeal. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 19 March 2007 Counsel for the Appellant: J R Hamilton (Pro Bono) Counsel for the Respondent: R Knowles Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 March 2007 Date of Judgment: 19 March 2007