"Asylum-seekers who claim to be Bedoons and have entered Jordan clandestinely. This category of applicants will not usually be in possession of any passport or document that will provide a legal presumption as to original nationality. As lack of a passport often impedes verification of original nationality, the Jordanian authorities tend to accord this category a reprieve in respect of strict application of immigration laws."
47 Mr Sameh's complaints relate to the failure of the Tribunal to deal with evidence and other material which supported a contrary conclusion. Counsel referred to material from the UNHCR in its document dated 31 October 1997 that those Iraqis who are caught at the Iraq/Jordan border without proper documentation are returned to Iraq. He also referred to the information provided by the UNHCR in the exchange of correspondence referred to in pars 35 and 36 above. That information is capable of showing that Mr Sameh would not gain readmission to Jordan. The Tribunal made no finding about that particular evidence. It gave no reasons for rejecting it. Mr Sameh also contends that the Tribunal's reasons demonstrate that it failed to address Mr Sameh's actual position. It is not whether, having arrived in Jordan, he will receive effective protection there. It is whether he would now be readmitted to Jordan from Australia, in circumstances where he does not have a valid passport or other travel documents.
48 The Tribunal specifically referred to his claim that he will not gain readmission to Jordan without a valid passport, and that he does not fit into any of the categories of Bedoons arriving in Jordan with claims under the UNHCR status as he would not be arriving in a legal manner with an Iraqi or Kuwaiti passport nor would he be arriving clandestinely.
49 It referred to country information about Jordan, including the UNHCR advice of 23 October 1998 that, without a valid national passport, Mr Sameh would not gain readmission to Jordan but would be returned to Australia. It also referred to the Department of Foreign Affairs and Trade information identifying Bedoons arriving in Jordan in three groups: those arriving from Kuwait in a legal manner, those holding Iraqi passports arriving in a legal manner who are treated as Iraqis, and those who enter Jordan clandestinely (who the Jordanian authorities tend to treat sympathetically). It noted that recognised refugees are allowed to stay in Jordan for six months only.
50 The Tribunal also referred at length to an unofficial translation of Jordanian "Law No 24 of 1973, The Residence and Foreigners' Affairs Law" consolidated to 1987. It requires foreigners to hold valid travel documents issued by Jordan to enter or leave Jordan. It then referred to arrangements for Iraqis "who make it into Jordan", who may apply for a three month residency. Other than to politically active Iraqis, that residency is generally granted.
51 That material has no focus upon the particular circumstance of Mr Sameh. He is in Australia, and the real question is whether he can return to Jordan. If he can, as the Tribunal found, he will be given effective protection there. The only passage in the Tribunal's reasons which might be seen to deal with that question is the first sentence of that passage cited in par 45 above: Jordanian legislation provides avenues for people like the applicant to enter and reside in Jordan. The Tribunal did, however, also reject the applicant's claim that he was concerned that the Jordanian authorities whilst he was in Jordan would notice that his passport was forged. Earlier in its reasons the Tribunal had noted Mr Sameh's claim that his Iraqi passport had expired in early 1998 and he had destroyed it. He then purchased a false Kuwaiti passport, in another name, to leave Jordan and come to Australia, and he destroyed that passport before his arrival in Australia. It made no findings on those claims.
52 It is important that the Court ensure that applications for review of decisions of the Tribunal be confined to the grounds of review available under s 476(1) of the Act. The Court has no power to review decisions on the merits. However, as a matter of law, the Tribunal was obliged to consider whether Mr Sameh would be accepted into Jordan if he were returned there by Australia, so that he may enjoy the effective protection available to him once he is in Jordan: Koe. In our judgment, the Tribunal has not addressed that fact. The Tribunal might have been expected to determine the basis upon which Mr Sameh would now be admitted to Jordan. That might involve a decision as to whether he holds a passport which would be accepted by the Jordanian authorities. Such matters are for the Tribunal to address. It has not apparently done so. However, the Tribunal has addressed one aspect of that question by reference to the Jordanian legislation. The pages the Tribunal refers to are those pages which contain the information from the Department of Foreign Affairs and Trade, the exchange of information from the UNHCR, and the Jordanian legislation, all of which is noted in pars 35-38 and 48-49 above.
53 It was the information from the UNHCR which prompted the Tribunal to draw to its attention the legislation, and what the Tribunal regarded as an apparent inconsistency between the information provided by the UNHCR and the legislation. The Tribunal has evidently, for reasons it has not expressed, preferred the legislation as the more reliable indicator of the ability of Mr Sameh to regain entry to Jordan. Given the efforts of the Tribunal to explore that apparent inconsistency, it is very unlikely that it has simply overlooked the question.
54 In its laconic finding on the question, the Tribunal has set out its decision and its finding on the material questions of fact: s 430(1)(a) and (c). It has referred to the material on which that finding was based: s 430(1)(d). It is difficult to decide how in the circumstances, the legislation enabled that conclusion to be reached. The written submissions for the Minister sought to put Mr Sameh into the category of persons who have entered Jordan clandestinely, but that is not his current status. He will be returned to Jordan from Australia. Those submissions also appear to accept that Mr Sameh does not now have a valid passport. The Tribunal has made no findings about whether Mr Sameh still has either of the passports to which he referred in his evidence. It has not explained why it has rejected the views of the UNHCR that Mr Sameh would not now gain admission to Jordan without a valid passport, or at least one which previously was accepted by Jordan as a valid passport. In our judgment, the "one line" finding in the circumstances does not satisfy the requirements of s 430(1)(b) of the Act. To adopt the words used by McHugh J in Durairajasingham, the circumstances were such as to require the Tribunal to provide reasons for its decision by indicating that it has rejected evidence going to a material issue in the consideration of the claim for a protection visa. Such a judgment must be one of degree in all the circumstances. It must be made in the light of the issues relevant to determination of the claim, and the nature and substance of the material touching upon those issues. It will not require a "line-by-line" refutation of all the evidence, but here the Tribunal itself by its inquiries indicated the significance of the issue and of the material from the UNHCR touching upon that issue. But the object of such provisions as s 430 is to enable the parties to understand why a particular decision has been made: see Pettit v Dunkley [1971] 1 NSWLR 376, Collins v Repatriation Commission (1980) 48 FLR 198 at 211-212; Dornan v Riordan (1990) 24 FCR 564 at 568; Davies v Australian Securities Commission (1995) 59 FCR 221; Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 (reversed on other grounds: (1994) 50 FCR 345).
55 In accordance with the decisions of the Full Court of the Court referred to above, that failure we conclude amounts to a failure to observe a procedure required by the Act to be observed in connection with the making of the decision: s 476(1)(a).
56 It may be accepted that the Tribunal did not refer to other material available which pointed to a contrary conclusion. It is not a breach of s 430(1)(c) to have failed to do so. As McHugh J explained in Durairajasingham, the real question is whether the reasons for decision of the Tribunal satisfy s 430(1)(b). That will depend upon the nature of the material issue which the reasons of the Tribunal must address and the nature of the evidence or other material which supports its findings in determining that issue and the nature of the evidence or other material which is inconsistent with those findings.
Mr Sameh's particular circumstances
57 The submission on behalf of Mr Sameh was, in this respect, really an alternative way of putting matters already considered. Mr Sameh's particular circumstances, as identified, were that he had left Iraq for Jordan and had then left Jordan for Australia. In our judgment, to the extent that those circumstances were relevant to the Tribunal's determination, they concern the question of whether Mr Sameh may reasonably gain entry to Jordan, or to Iraq through Jordan. They are relevant to whether he has effective protection in Jordan or in Iraq. Those matters have already been addressed earlier in these reasons.
58 We did not discern in the submissions on behalf of Mr Sameh any other matters under this heading which would attract a ground of review available under s 476(1) of the Act.
Conclusion