RRT decision
10 The Tribunal set out the text of Art 1A(2) of the Convention and a brief summary of principles established by High Court and Federal Court decisions. Then the RRT discussed the concept of effective protection in a "safe third country" and in particular the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543. The RRT observed:
"In determining whether an applicant has effective protection in a third country relevant considerations will be: whether the applicant has the right to reside in, enter and re-enter the third country; whether there is a risk that the third country will return the applicant to a country where he claims to fear persecution; and whether the applicant has a well-founded fear of persecution in the third country itself. These matters must be addressed with care."
11 In our view this is a correct statement of the law.
12 The Tribunal then discussed the evidence. It noted that the appellant had entered Jordan on his Article 17 passport and had been given a six months visa but that he had not renewed it. He gave contradictory explanations as to this and as to why he did not apply for refugee status in Jordan. These included that he did not carry Jordanian documentation, that he wanted to stay in Jordan as a way of obtaining refugee status in another country, that he did not know about obtaining refugee status in Jordan, that his passport had expired, that he had destroyed his passport after arriving in Jordan, that his passport had been taken from him on leaving Kuwait.
13 The Tribunal accepted that conditions would be "difficult" for the appellant in Kuwait but whether current conditions for Bedoons in Kuwait amounted to persecution was "debatable".
14 The Tribunal noted that the appellant did not claim persecution in Saudi Arabia and left that country voluntarily for Jordan.
15 The Tribunal said that it did not propose in the circumstances of the appellant to make a finding as to whether he could reasonably be expected to return to either Kuwait or Saudi Arabia. Instead the Tribunal considered that he had found effective protection from the harm he feared in Kuwait in Jordan.
"… where he and his family have lived for the past five years and where independent evidence shows that Arabs and asylum seekers are treated liberally."
16 On the authority of Thiyagarajah and subsequent decisions the Tribunal therefore held that the appellant was not a person to whom Australia had protection obligations under the Convention.
17 The Tribunal observed that since the appellant had lived and worked in Saudi Arabia without encountering harm, and went voluntarily from there to Jordan, that it was reasonable to infer that his decision to go to Jordan was based on knowledge that general conditions in Jordan suited him better than those of Saudi Arabia and that he would find safety from the prospect of being returned to Kuwait
18 The Tribunal referred to independent evidence on conditions in Jordan. The Jordanian Law No 24 of 1973 provided by Ch 1 Art 4(a) "that a foreigner should be authorised to enter or leave Jordan provided he holds a valid passport or travel document issued by his country". Article 4(c) provided that international laissez-passers shall be issued to, amongst others, stateless persons and persons with no established nationality. Chapter 3 Arts 20 and 23 provided for the grant of renewable residence permits.
19 The Tribunal said that that this information was supported by other independent evidence that Jordan's legislative assurances in these matters were applied in practice, that considerable leeway was given to visa overstayers who were allowed to stay on and work off whatever fees they might have amassed and that tens of thousands of foreign Arabs lived and worked in Jordan under the system even if they did not choose to apply for refugee status. The Tribunal then referred to Department of Foreign Affairs cables and World Refugee Survey and Amnesty International Reports. The Tribunal then said:
"Given the above independent evidence, the Tribunal considers that the applicant has found effective protection from the harm he feared in Kuwait in Jordan, against which he has made no claims, and where he and his family have been living for the past five years."
20 The Tribunal was satisfied that Jordan would not refoule the appellant to Kuwait.
21 The Tribunal also considered that the appellant had fabricated aspects of his evidence in order to boost a claim that he could not stay in Jordan and was in need of protection in Australia. It rejected his claim that he did not know of Jordan's residency visa provisions.