FEDERAL COURT OF AUSTRALIA SZQSV v Minister for Immigration and Citizenship [2013] FCA 1405 Citation: SZQSV v Minister for Immigration and Citizenship [2013] FCA 1405 Appeal from: SZQSV v Minister for Immigration and Anor [2012] FMCA 442 Parties: SZQSV v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number(s): NSD 807 of 2012 Judge(s): GREENWOOD J Date of judgment: 19 December 2013 Catchwords: MIGRATION – consideration of an appeal on the footing that the primary Judge fell into error by failing to find jurisdictional error on the part of the Refugee Review Tribunal in reaching the relevant state of satisfaction for the purposes of s 36(2)(a) and s 65 of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 65, 411, 414, 415, 430 Cases cited: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [12] Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594 Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration v Yusuf (2001) 206 CLR 323 Commissioner for Police v Ryan (2007) 70 NSWLR 73 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Date of hearing: 2 August 2012 Date of last submissions: 2 August 2012 Place: Brisbane via video-link to Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 49 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Emily Baggett, DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 807 of 2012 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA (FORMERLY THE FEDERAL MAGISTRATES COURT OF AUSTRALIA) BETWEEN: SZQSV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: GREENWOOD J DATE OF ORDER: 19 DECEMBER 2013 WHERE MADE: BRISBANE VIA VIDEO-LINK TO SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the costs of the first respondent of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 807 of 2012 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA (FORMERLY THE FEDERAL MAGISTRATES COURT OF AUSTRALIA) BETWEEN: SZQSV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: GREENWOOD J DATE: 19 DECEMBER 2013 PLACE: BRISBANE VIA VIDEO-LINK TO SYDNEY REASONS FOR JUDGMENT 1 These proceedings are concerned with an appeal from the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia) by which the primary Judge dismissed an application for the issue of the constitutional writs in the exercise of judicial supervisory review on grounds of jurisdictional error under s 75(v) of the Constitution of a decision of the Refugee Review Tribunal (the "Tribunal") affirming a decision of the delegate of the Minister for Immigration and Citizenship that the Minister's delegate could not be satisfied that the applicant appellant was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol for the purposes of s 36(2)(a) and s 65(1) of the Migration Act 1958 (Cth) (the "Act"). 2 Before explaining the circumstances giving rise to the appeal and the grounds of appeal, a number of propositions based upon the relevant provisions of the Act need to be kept in mind. 3 Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol as those terms are understood for the purposes of the Act. Section 65(1)(a) provides that after considering a valid application for a visa the Minister is to grant the visa if satisfied of four matters. They are the relevant health criteria; other criteria prescribed by the Act or regulations made under the Act; the circumstance that the grant of the visa is not prevented by operation of the Act; the payment of any amount of visa application charges payable in relation to the application. Section 65(1)(b) provides that if the Minister is not so satisfied, the Minister is to refuse the grant of the visa. 4 A decision to refuse the grant of a protection visa, in the circumstances of this case, is an RRT-reviewable decision under s 411(1) of the Act. If a valid application is made to the Tribunal, the Tribunal must review the decision in discharge of its "core obligation" under s 414 of the Act (Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [12]; Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594 at [19]), and in doing so, the Tribunal exercises all of the powers and discretions that are conferred by the Act upon the Minister: s 415(1) of the Act. The Tribunal may affirm or vary the decision or set aside the decision and substitute a new decision: s 415(2) of the Act. Section 422B provides for an exhaustive statement of the natural justice hearing rule. 5 The critical feature of the statutory regime as it applies to this case is whether the Tribunal, standing in the shoes of the Minister, in discharge of its core function of review, could be satisfied of the relevant factual matters upon which the exercise of its jurisdiction depended having regard to its reasons for the decision given under the Act and taking into account the elements of s 430(1) of the Act, although of course, the reasons are not to be scrutinized in an over-zealous fashion (Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Citizenship v SZMDS & Another ("SZMDS") (2010) 240 CLR 611 per Gummow A-CJ and Kiefel J at [35]). If, in seeking to reach that state of satisfaction upon which the exercise of the power to grant or refuse the grant of a protection visa rested, the Tribunal identified the wrong issue or asked itself the wrong question; ignored relevant material; relied upon irrelevant material, failed to follow mandatory statutory procedures; failed to consider the applicant's claims as made; demonstrated actual or apprehended bias or reached a decision which relied upon inferences drawn from primary facts which were not open, then, the Tribunal will have fallen into jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179-180; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 351. 6 The questions in issue in this appeal do not involve questions concerning the exercise of a discretion. The proceeding is concerned with the exercise of a statutory power conditioned upon a state of satisfaction of the decision-maker. 7 The issue is whether the Tribunal fell into jurisdictional error in reaching the state of satisfaction required under the Act, standing in the shoes of the decision-maker. In this sense, the term "satisfy" means that the applicant appellant meets the requirement that Australia has protection obligations to him and the second sense in which the statute uses the term, is that the decision-maker accepts or is content that the applicant answers or meets that requirement or condition: SZMDS per Gummow A-CJ and Kiefel J at [2]. Of course, it is axiomatic that the privative provisions of the Act do not protect decisions involving jurisdictional error: Plaintiff S 157/2002 (2003) 211 CLR 476 per Gaudron, McHugh, Gummow, Hayne and Kirby JJ at [83] and thus the writs of prohibition and mandamus are available. 8 Where the jurisdictional fact is a state of satisfaction or opinion to be reached or formed by the decision-maker in the exercise of the statutory power, the decision might be stigmatized as one exhibiting jurisdictional error where the decision-maker reaches the state of satisfaction or forms the relevant opinion in terms which are arbitrary, capricious or irrational apart from any question of exhibiting non-bona fide features in their decision-making: SZMDS at [23]; Commissioner for Police v Ryan (2007) 70 NSWLR 73 per Basten JA at 85; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 per Latham CJ at 432. 9 The background circumstances are these. 10 The appellant is a national of the People's Republic of China (the "PRC"). He arrived in Australia on 8 December 2007 as the "student guardian" of his son who came lawfully to Australia as the holder of a student visa. The appellant's son returned to the PRC in January 2011 to represent the appellant after the death of the appellant's brother. The appellant told the Minister's delegate and the Tribunal, which the Tribunal accepted, that his brother had died in January 2011 in police custody. 11 The appellant gave evidence before the Tribunal that he remained in Australia because he feared for his own safety arising out of the events which led to his brother's death in police custody having regard to events concerning gatherings in his home town in the PRC at which the Christian faith was practised, attended by the appellant, the appellant's family and the appellant's brother. 12 It is not necessary to recite in detail the factual considerations weighed and recited by the Tribunal in its reasons for decision (except for one matter to which I will turn shortly). 13 However, it is important to note some of the findings reflected in the reasons of the Tribunal. These findings were favourable to the appellant. Some brief background to the findings ought, however, to be mentioned. 14 At the Tribunal hearing the appellant told the Tribunal that he practised as a Christian in China in the town where he was born. He later moved in 2003 to another town with his family where he also practised as a Christian. Between 2000 and 2007, he was living and working in Guangzhou. He there practised as a Christian and worshipped in Churches of the "Three Self Patriotic Movement". The appellant's wife resided in another town where she continued to worship and practice the Christian religion. On occasion, the appellant would return to his home town and would attend gatherings of worshippers if gatherings were taking place. 15 The appellant gave evidence to the Tribunal that on one occasion he and his brother had returned to their home town to visit family on 2005. They were present at a Church gathering when it was interrupted by police who accused those present of being members of an "underground church". The police alleged that these worshippers were "shouters". The appellant and his brother managed to escape. The appellant said that they did not return to their home town after that time. The appellant's brother did not return until January 2011 and he did so because their father was not well. The appellant gave evidence to the Tribunal that his brother was identified by police in his home town and the day after his arrival the police came for him. The appellant gave evidence that his brother was arrested and he died in police custody the same day. The appellant gave evidence to the Tribunal that his family understands that his brother died as a result of a bashing whilst in custody. The appellant contended that the police had alleged that his brother took his own life having used his own clothes to strangle himself. 16 Having regard to these contentions of fact and other evidence given by the appellant, the Tribunal made these findings: 88. The Tribunal accepts that the applicant and his brother as well as other members of the family were present at a religious gathering [in the identified town] in 2005. It accepts that police came in and accused those gathered of being part of an unregistered church. The Tribunal accepts that the applicant and his brother were both able to escape and they left [the town]. The applicant stated and the Tribunal accepts that he did not return to [the town]. At the same time the Tribunal notes the applicant's evidence that family members were asked questions after this incident. Nevertheless, his family members still living in [the town] still believe in Jesus Christ and have continued to practice their faith as Christians since that time and without further incident. 89. The Tribunal accepts that the applicant's brother died in January 2011. The applicant's evidence about the circumstances of his brother's death is based on what he has been told by his family. … The Tribunal is prepared to accept that the circumstances surrounding the death of the applicant's brother in [the town] are as he has claimed. The Tribunal accepts that for this reason the applicant is fearful of returning to [his home town] himself. [emphasis added] 17 The Tribunal acknowledged that the appellant had given evidence at the hearing that he practised his religion as a Christian within the Three Self Patriotic Church and had been practising his religion whilst living in a particular town away from his home town, since 2003. The Tribunal found as a fact that the appellant "did indeed worship as part of the Three Self Patriotic Church of his own volition" in the relevant town from 2003 and also in Guangzhou. At para 91, the Tribunal made this finding: … [The Tribunal] accepts that on one occasion in 2005 when he was in [his home town] local police interrupted a gathering at which the applicant was present. It accepts that the police indicated that in their view the gathering was one of underground Christians. The Tribunal accepts that the applicant managed to escape. It accepts that he has not returned to [his home town] since that time and it accepts that he is genuinely fearful of doing so particularly in view of what happened to his brother who died in police custody in [their home town] in January 2011. The Tribunal accepts that there is a real chance that the applicant will face serious harm amounting to persecution if he returns to [his home town], for the reason that he is imputed to be a member of an underground Christian church and on the basis of his relationship with his brother who was likewise considered to be a member of an underground Christian church. [emphasis added] 18 At para 92, the Tribunal accepted that the appellant has practised as a Christian within the Chinese congregation of the Anglican Church in Australia in Campsie and the Tribunal found that the appellant practises his faith "because he genuinely believes in Jesus Christ and his attendance is not conduct which he has engaged [in] for the purpose of strengthening his claim to be a refugee". The Tribunal found "no reason to disregard that conduct" (para 92). 19 At para 93, the Tribunal asked the appellant how he would practice his faith should he return to China. The appellant gave evidence before the Tribunal that he is afraid to return to the PRC because of the things that happened to his brother. At para 93, the Tribunal observed that it "acknowledges that the applicant is fearful". The Tribunal then notes that it discussed with him at length at the hearing the fact that the appellant has lived in another town (other than his home town) where he has practised his religion since 2003 and has not encountered "problems". Also, the Tribunal noted at para 93 that the appellant has lived and worked in Guangzhou for periods in the years between 2000 and 2007 and has practised his religion in Guangzhou. The Tribunal also notes that the appellant told the Tribunal that in both Guangzhou and in his town of principal residence (away from his home town) he has practised his religion within the Three Self Patriotic Church. 20 At para 93, the Tribunal made this finding: 93. The Tribunal finds that if he returns to China the applicant can continue to practice his Christian religion within the Three Self Patriotic Church in [his town of residence] where his wife and sons live and where according to the applicant his wife practises her religion as a Christian and undertakes cleaning duties at her Church. The applicant did not indicate to the Tribunal that he has any objection to worshipping as part of the Three Self Patriotic Church in the future in China. The Tribunal finds that he can do so in [his town of residence] or in Guangzhou as he has done in the past. [emphasis added] 21 The Tribunal noted that the applicant had contended that the police from his town of residence (M), and Guangzhou, and his home (P) town are all police from the same (PSB) authority and the appellant had expressed concern that they would find him in China should he reside in one of those three places. The Tribunal observed that there was no evidence before the Tribunal that the police from the appellant's home town had sought to pursue or locate him in his town of residence or in Guangzhou since the incident in 2005 (when the appellant and his brother fled from the police who had invaded the meeting). At para 94, the Tribunal made this finding: The Tribunal does not accept that he is or will be sought by police in [his town of residence] or in Guangzhou because he is believed to be a member of an unregistered church or because of an association with his late brother. 22 At para 95, the Tribunal observes that later in the course of the hearing before the Tribunal the appellant sought to contend that when he returned to the town of his principal residence from Guangzhou he did so "late at night and in secret". Plainly enough, the Tribunal was inferring that the emergence of this factual contention later in the course of the hearing suggested some degree of recent invention. No doubt, that led to the Tribunal's observation at para 95 that it "does not accept that [returning late at night and in secret] is the case". The Tribunal also noted that in the application for a protection visa, the appellant had given his address (in his town of residence at M) as his "residential address in China". The Tribunal also found that the appellant's "household register" is also in that same town of M. The Tribunal found that the appellant had "lived there previously" and his wife and family live there. The Tribunal found that the appellant owns his home in the particular town of M. The Tribunal found that the appellant can practice his Christian religion as he wishes to do so in the town of M as described by the appellant. 23 In consequence, the Tribunal concluded that there is not a "real chance" that in practising his Christian religion in the town of M he would come to the "adverse attention of the PSB (the Police Authority)". 24 In the result, the Tribunal found that the appellant does not face a real chance of persecution if he returns to the PRC now or in the reasonably foreseeable future for the reason of the practice of his Christian faith and thus it followed for the Tribunal that his fear of Convention related persecution should he return to China is not a well-founded fear. 25 These findings of fact led to the result that the Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and thus the appellant did not satisfy the criterion required by s 36(2)(a) of the Act and the Tribunal could not be satisfied for the purposes of s 65 of the Act that the appellant satisfied s 36(2)(a) of the Act. 26 Before the primary Judge, the appellant contended that the Tribunal fell into jurisdictional error on three grounds and they were these: 1. The second respondent [the Tribunal] made legal errors in making the decision. 2. The second respondent failed to consider [that] the applicant had a well founded fear of persecution. 3. The second respondent failed to address the full content of the applicant's claim for a protection [visa]. 27 None of these grounds were supported by any content. The appellant failed to identify the legal errors on the part of the Tribunal or the matters the Tribunal had failed to take into account in reaching a decision on the merits about whether the appellant held a well-founded fear of persecution. Moreover, the appellant failed to identify any content to the contention that the Tribunal had failed to address the "full content" of the appellant's claim for a protection visa. 28 At [19], the primary Judge observed that without any particulars of these three contentions, the primary Judge was unable to identify "any arguable legal or other jurisdictional error". At [20], the primary Judge said this: I consider it clear that the Tribunal did consider all the applicant's evidence and claims to be a refugee and, as I have noticed, it has assessed the applicant and his evidence very favourably in relation to his credibility. Its decision turned upon its assessment of the future risks arising from the history which it accepted. There is no reason to conclude that it misunderstood the "real chance" test which was obliged to apply to the assessment. I consider that its assessment was open to it, notwithstanding that it differed from the applicant's own assessment of his risk of persecution and his genuinely held fears of returning to China. 29 At [21], the primary Judge notes the applicant's contention of an inconsistency between the Tribunal finding a real chance of persecution of the appellant should he return to his particular home town, on the one hand, and the Tribunal finding that there was no real chance of the appellant coming to the adverse attention of the PSB should he return to the town of his residence in China at M (being the nominated town in the documents referred to by the Tribunal and the place of residence of his wife and family). The primary Judge did not accept that there was any inconsistency in the findings. The primary Judge at [21] observed that the findings had been explained by the Tribunal in the context of the evidence before it. The primary Judge also observed that the explanatory reasoning was not only open but could not be criticised as being illogical or unreasonable in the process of reasoning leading to the conclusions of fact. The primary Judge also noted that this question of inconsistency had been the subject of an affidavit of the appellant. The primary Judge also noted that that affidavit contains a restatement of the appellant's claims of a well-founded fear of persecution for reasons of the practice of his religion should he return to China and it sets out his "current fears in terms that are far more eloquent that were ever presented to the Tribunal". At [22], the primary Judge makes this observation: 22. [The appellant's affidavit] concludes with a criticism of the Tribunal's assessment of his risk of persecution, with which many minds might find sympathy. As the applicant told me, [his town of residence M] is in the same province and in relatively close proximity to [his home town P]. It is not obvious to me how the Tribunal arrived at its confidence that the applicant could live safely in that location undisturbed by the PSB, taking into account the very recent events [of 2011] involving his older brother. 30 The primary Judge also said this at [23]: 23. However, as I have explained to the applicant, I am unable to identify in his concerns a basis in law for setting aside the Tribunal's decision and remitting the matter. I must therefore dismiss the application. [emphasis added] 31 At [24], the primary Judge concluded with this observation: 24. I have informed the applicant that he should take further advice on whether there are applications he can make to the Minister to obtain a further consideration of his refugee status or other decision to enable him to remain in Australia. It is in his interests for him to seek the best professional or other assistance to present such applications to the Minister without delay. 32 The final observation of the primary Judge at [24] reflects the primary Judge's concern that "the applicant has not obtained any legal assistance in presenting his case to this Court, and the people who have helped him have been unable to formulate any ground of jurisdictional error with meaningful particulars". The final observations of the primary Judge at [23] and [24] reflect a concern that the appellant's case had not been put as comprehensively as it might, especially in the context of the many findings of the Tribunal favourable to the appellant. The primary Judge also quoted extensively from a strongly supportive reference submitted on behalf of the appellant from Reverend Tan of the Anglican Church at Campsie. 33 In the appeal to this Court, the grounds of appeal are these: 1. The Refugee Review Tribunal failed to address the full content of the applicant's claim for a protection visa. 2. The Refugee Review Tribunal made legal errors in making the decision. 3. In para 91 of the RRT decision, the Tribunal member accepts there is a real chance that I will face persecution. 4. In para 95 of the RRT decision, the Tribunal member does not accept that I will face persecution. 34 The grounds of appeal do not seek to identify appellable error on the part of the primary Judge. Rather, the four grounds of appeal to this Court identify, in general terms, contended failures on the part of the Tribunal on the inferential footing that the primary Judge fell into appellable error by failing to find jurisdictional error on the part of the Tribunal. 35 As to the first and second grounds, the Tribunal's reasons identify the claims upon which the appellant contends he satisfies the criteria applicable to the grant of a protection visa. To the extent that the appellant contends that his claim was not properly considered or the Tribunal fell into legal error amounting to jurisdictional error because the Tribunal did not conduct a reasoned evaluation of whether the appellant faced a "real chance" of persecution due to the practice of his religious beliefs should he return to China, the position is this. The Tribunal considered the evidence of the appellant given at the Tribunal hearing and listened to the recording of the interview with the Minister's delegate. The Tribunal also took into account the reference from Reverend Tan and other documents. The Tribunal made many findings of fact favourable to the appellant on almost all aspects of the appellant's claims. However, on the evidence before the Tribunal, the Tribunal attached weight to the following particular factors. 36 First, during the period since 2005 (that is, from the date of the police raid) there was no evidence that the police from P had sought to pursue or locate the appellant in either M or Guangzhou. Although the absence of any evidence of actual police pursuit of the appellant by police personnel from P is only one factor, the appellant did not contend that he had experienced any problem with the police during his periods in M or Guangzhou since 2005. 37 Second, in his application for a protection visa, the appellant had given as his residential address in China, his address in M. The Tribunal observed that the appellant has lived there without pursuit by the police since 2005 and his wife and family live there. He owns his own house in M. The Tribunal did not accept the appellant's evidence that he found it necessary to enter M from Guangzhou at night and in secret. The Tribunal also noted that the appellant's "household register" records his "household" as the M address. 38 On the footing of these two factors, the Tribunal could not be satisfied that the appellant faced a real chance of persecution in practising his Christian religion in M should he return to the PRC. 39 The Tribunal acknowledge and accepted that the appellant was fearful of returning to China because of the events that happened to his brother in P in January 2011 (para 89). The Tribunal accepted that the appellant was fearful of returning, in particular, to P (para 89). Once the appellant's evidence of the circumstances surrounding the death of his brother in January 2011 in P while in police custody was accepted by the Tribunal, it followed for the Tribunal in its reasons as at 9 September 2011 (the Tribunal's decision date), thus giving rise to the Tribunal's "acknowledgement", that the appellant was fearful of a return to P himself. That led to the Tribunal's lengthy discussion with the appellant at the hearing about his life in M where he practised his religion. The Tribunal noted that the appellant had been able to do this without encountering any "problems" of police contact or engagement. 40 The Tribunal also noted that between 2000 and 2007 (that is, over a period of approximately eight calendar years) the appellant lived and worked for periods in those years in Guangzhou, and according to the appellant's evidence, he practised his Christian religion during all those periods. The appellant gave evidence that in both M and Guangzhou he practised his religion within the Three Self Patriotic Church. These considerations, taken in conjunction with the two other matters I have already mentioned, led the Tribunal to conclude that the appellant could return to M where his wife and sons live and he could continue to practice his religion in M at the Three Self Patriotic Church in M where his wife also works. 41 All of these things taken together caused the Tribunal to fail to reach the state of satisfaction required by s 36(2)(a) and s 65 of the Act. The Tribunal was not satisfied that the appellant held a well-founded fear of persecution should he return to M and practice his religion, because the fear he held was not one of a "real chance" of persecution should he return to M, for the reasons earlier discussed. 42 There was nothing arbitrary or capricious or illogical in the Tribunal's exposed reasons for failing to reach the necessary state of satisfaction. 43 As to grounds 3 and 4, these grounds are in truth, one ground and re-agitate the inconsistency point argued before the primary Judge. The contention is that there is necessarily inconsistency (and thus, it is said, illogicality giving rise to jurisdictional error) in the finding at para 91 that the appellant faced a "real chance" of "serious harm" amounting to "persecution" should he return to P, by reason, firstly, of his "imputed" membership of an underground Christian Church, and secondly, by reason of his relationship with his late brother who was also thought to be a member of an underground Christian Church, on the one hand, and the finding at para 95 (but actually paras 93 to 95) on the other hand, that the Tribunal could not be satisfied that the appellant would face a real chance of serious harm amounting to persecution should he return to M or Guangzhou. 44 There is no inconsistency between these two positions on the evidence, for the reasons explained by the Tribunal, concerning the factors informing a fear of a return to P and the factors relevant to a return to M or Guangzhou in the Tribunal's view. 45 At para 37, the Tribunal notes that it asked the appellant how long it takes to travel from P to M. The appellant said that the journey was a complicated one and it could take two to four hours. The Tribunal notes the appellant's evidence that before he came to Australia, he had to take ferries to make the journey but now there is a new bridge and so it is possible to make the trip by public transport. This evidence suggests that the journey between the two towns is probably something less than four hours. 46 This factual circumstance might be thought to have been weighed more heavily in the balance by the Tribunal in determining whether there was a real chance of persecution by police from P in travelling to and accessing M should the police authorities become aware of the appellant's presence and residence in M. Nevertheless, the Tribunal has weighed these circumstances in the balance in the context of the evidence overall. 47 Neither the Federal Circuit Court of Australia nor the Federal Court of Australia has jurisdiction to grant the constitutional writs in relation to an administrative decision that does not exhibit jurisdictional error, irrespective of where either Court might think the merits might lie should either Court be making a decision on the merits itself. The distinction between impermissible merits review and error on the part of the administrative decision-maker of a jurisdictional kind in making a finding of jurisdictional fact as to the state of satisfaction of the decision-maker remains a critical distinction: SZMDS per Gummow A-CJ and Kiefel J at [16] – [41]. 48 Accordingly, the appeal must be dismissed because the appellant has failed to identify any error on the part of the primary Judge and to the extent that the appellant seeks to contend, as a matter of inference, that the primary Judge fell into error by failing to find jurisdictional error on the part of the Tribunal, no jurisdictional error is demonstrated. 49 The orders will be that the appeal is dismissed with an order that the appellant pay the costs of and incidental to the appeal. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 19 December 2013