Reasoning
21 The applicant's primary submission was that the Tribunal had failed to make findings in respect of his central claims. The applicant submitted that there was a failure to observe procedures required by the Act to be observed in connection with the decision (s 476(1)(a) of the Act) when the Tribunal failed, in accordance with s 430(1) of the Act, to set out its findings on material questions of fact and its reasons for its decision. The applicant referred to Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 where the Full Court said at 480:
"If there is a failure to prepare any statement at all, then s 476(1)(a) is enlivened. In principle the same result should follow if a statement purporting to be in conformity with s 430 is prepared, which does not satisfy the requirements of the section. If the statement is said not to comply with s 430(1) because it fails to set out findings on a question of fact which a court holds to be material (but which the RRT did not), then the decision could be set aside under s 476(1)(a) for want of procedural compliance.
As the Full Court observed at 480, the Tribunal:
"…must make findings on questions of fact that are central to the case raised by the material and evidence before it."
22 The applicant submitted that no finding was made by the Tribunal on his claim that he had a subjective fear of persecution if he returned to Jordan. The applicant accepted that the Tribunal may be taken to have rejected his claim that he had such a subjective fear if it had clearly refuted the applicant's case: Rajadurai v Minister for Immigration and Multicultural Affairs [1999] FCA 125. The applicant submitted that the Tribunal had not refuted his case but rather made a finding that the applicant had in fact been detained. However, if the Tribunal had made a finding that there was no well‑founded basis for any subjective fear that the applicant might have had, it would not have been necessary to make a specific finding as to that subjective fear: Wang v Minister for Immigration and Multicultural Affairs [1999] FCA 1464 at [14].
23 It is a misunderstanding of the Tribunal's reasoning process to say that it made a finding that the applicant had been detained or that there was a well‑founded objective basis for any subjective fear of persecution. It is true that in the passage to which I have referred in par 12 above the Tribunal said:
"Consequently it is not implausible that the applicant could have been detained." (emphasis added)
That statement was made in the context of the immediately preceding finding that the Jordanian Police and Security Agency did not have a good reputation. All the Tribunal was saying was that for that general reason the applicant "could" have been detained but it did not make a finding that the applicant "had" been detained. Indeed the Tribunal had made a finding to the contrary when it found earlier:
"It is implausible that, armed with this information, they would detain him five times release him without charge then fail to notice that he was making arrangements to leave the country."
24 As the Tribunal directly addressed the issue whether there was an objective basis for any fear of persecution and found that the applicant had not been detained, it did not become necessary to determine whether the applicant had a subjective fear of persecution. I adopt, with respect, the observations of Sackville J in Rajadurai v Minister for Immigration and Multicultural Affairs (supra) at [19]:
"For myself, I think that there is much to be said for the view that the RRT commits no error of law by rejecting the objective element of an applicant's claim, without making any express finding as to whether the applicant has a subjective fear of persecution if returned to his or her country of nationality. Although it will often be sensible to consider at the outset whether the applicant has a fear of persecution on Convention grounds, it may simply be unnecessary in a particular case to address that question having regard to the findings made on the objective element of the test."
25 The applicant submitted that the Tribunal failed to make findings whether the applicant was a supporter or perceived supporter of the Liberation Party or the Muslim brotherhood and that this was a critical finding because the applicant claimed that the reasons for his detention were because of such support. The applicant contended that this failure was a significant flaw in the Tribunal's reasons, in circumstances where it had found that the applicant's detention was not implausible. However, the need for such a finding was removed once the Tribunal found that the applicant had not been detained as he had claimed.
26 As I have already observed, the applicant's analysis of the Tribunal's finding of the plausibility of his detention is misconceived. The Tribunal, in fact, did not make any finding that the applicant had been detained but rather found that although it was not implausible that he could have been detained, having regard to the general conduct of the Jordanian police and security agencies, the particular circumstances claimed by the applicant were implausible and were rejected by the Tribunal. It is apparent from the passage in the Tribunal's reasons to which I have referred in par 12 above that the Tribunal's ultimate conclusion was that it rejected the applicant's claim that he had been detained. The applicant submitted that if the Tribunal's finding was that his detentions, as claimed, were not prolonged then there was an inconsistency between the country information to which the Tribunal later referred which indicated that persons could be detained for up to twenty‑five days without being charged. However, according to the applicant's claim, he was not detained and then charged, but was rather detained and then released. There is therefore no inconsistency between the applicant's claim and the country information that people were detained for extended periods before formal charges were laid.
27 The applicant submitted that although the Tribunal found that it was not satisfied he was as outspoken as he had claimed, nor was it satisfied that he was a known leader of a Cell group or very active in distributing pamphlets on behalf of the Al‑Tahrir party or other opposition groups, the Tribunal did not set out the reasons why it was not so satisfied. The conduct which the Tribunal was addressing at this point involved a determination of the applicant's degree of involvement in such activities. What the Tribunal was saying was that it did not accept the applicant's evidence as to his degree of involvement.
28 I approach this part of the Tribunal's reasons with the admonition of the majority of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in mind at 272:
"… the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleamed from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision‑maker upon proper principles into a reconsideration of the merits of the decision."
Further, as Kirby J pointed out at 291:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision‑maker with a fine appellate tooth‑comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."
29 It is apparent that the Tribunal reached the conclusion that it did not accept the applicant's evidence as to his degree of involvement with political parties having regard to its view of the applicant's credibility. This is made clear by its observation:
"Other reasons for this dissatisfaction are discussed in the following paragraphs."
What then appears in the paragraphs following that comment are the Tribunal's reasons why it did not accept that the letter from the doctor was authentic and that the warrants were genuine. Although not articulated as clearly as it might have been, I am satisfied that it is apparent from the Tribunal's reasons that the reason why it was not satisfied that the applicant was as outspoken as he had claimed, nor was it satisfied that he was a known leader of a cell group or very active in distributing pamphlets on behalf of the Al‑Tahrir party or other opposition groups, was that it did not accept the applicant as credible on those issues.
30 The applicant then submitted that the Tribunal had fallen into an error of law in the manner in which it approached the question whether the applicant had a well‑founded fear of persecution. The appellant criticised the manner in which the Tribunal approached the issue whether the applicant was prosecuted because of his conduct. The applicant accepted that the Tribunal correctly identified the manner in which it was required to determine whether the applicant had a well‑founded fear of persecution but submitted that the Tribunal had not adopted the correct approach in practice. It was submitted that the Tribunal did not ask whether the detention of the applicant was for a Convention reason and that the Tribunal accepted that it was not improper for the applicant to be detained under a law of general application but that it did not turn its mind to whether the particular detention of the applicant was for a Convention reason. It was put that the Tribunal closed its mind to the issue of the legitimacy of the detention and that the Tribunal had inverted its consideration by finding that if the applicant was detained, it was not improper for him to be detained under a law of general application.
31 This analysis involves a misreading or misunderstanding of the Tribunal's reasoning. The Tribunal looked at the applicant's claim in relation to his association with political organisations and found that it was not improper for the Jordanian State to detain him if he was suspected of being associated with organisations involved in acts of terrorist violence. Such a finding did not involve any error of law. In Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225, McHugh J said at 258:
"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution."
32 I do not consider that the Tribunal made a finding that if the applicant had an association with the banned political parties, the Jordanian State was entitled to detain him under a law of general application and that it was not therefore necessary to consider the particular circumstances of his detention. On a fair reading of the Tribunal's reasons it determined that, as a matter of principle, it was not improper for the Jordanian State to detain the applicant if he was suspected of being associated with an organisation which resorted to terror. The Tribunal added the caveat:
"although that detention should accord with proper and just legal processes and treatment."
However, the Tribunal thereafter considered the applicant's claims to have been detained on five occasions and made specific findings in relation to them, namely that he had not been detained. The Tribunal did not commit any error of law in its reasoning process or in its analysis in relation to the issue of whether the applicant had been detained as he had claimed.
33 The applicant further submitted that the Tribunal had also fallen into an error of law by failing to engage in reasonable speculation of the type contemplated in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Wu Shan Liang v Minister for Immigration and Ethnic Affairs (supra). This has been colloquially described as the "what if I am wrong" consideration. In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, Sackville J said at 241:
"In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had 'no real doubt' (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well‑founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued."
The applicant submitted that the Tribunal should have considered the possibility that its findings of fact might not be correct because of the manner in which it approached its reasoning. The applicant pointed to the fact that in a number of passages the Tribunal expressed the view that certain circumstances were plausible. For example, the Tribunal said that it was not implausible that the applicant could have been detained and that it was plausible that the applicant had attended lectures given by Leith Shubeilat, a well‑known and outspoken critic of the government. Nevertheless, in the context in which these observations were made it is clear from the Tribunal's reasoning that it reached clear findings and did not have any real doubt that its findings on material questions of fact were correct. The Tribunal was therefore under no obligation to consider the matter on the basis that its findings of fact might not be correct. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said at 576:
"If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well‑founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong."
This passage demonstrates that the Tribunal did not fall into error and was not required to consider whether its findings might be wrong.
34 The applicant challenged the Tribunal's consideration:
"whether the general context in Jordan is one where a real chance of persecution of the Applicant, or people of his ilk, is plausible."
It was said that the Tribunal thereby treated the applicant as the same as other citizens of Jordan in its consideration of his chances of future persecution and did not give him the benefit of the doubt. However, this observation was made after the Tribunal had made findings, and reached its conclusion, that it rejected the applicant's particular claims as to persecution, namely his periods of detention. The Tribunal did not fail to take into account the applicant's particular circumstances.
35 The grounds of review relied upon by the applicant are not made out. The application will be dismissed with costs.
36 I wish to record the indebtedness of the Court to counsel for the applicant who appeared pro bono. Counsel presented substantial written and oral submissions which assisted the Court in defining and resolving the issues for determination. The community in general, and litigants in particular, are well served by counsel who appear pro bono and counsel are to be commended for their participation in the Court's pro bono scheme.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.