FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578

MIGRATION – application for protection visa – visa applicant without nationality – application of Article 33 of Refugees Convention – visa applicant had not been accorded effective protection in the country of former habitual residence – whether visa applicant had been accorded effective protection in a third country and is able to return to third country – whether Refugee Review Tribunal failed to comply with s 430 of Migration Act 1958 (Cth) – extent of obligation imposed by s 430 – whether failure to comply with s 430 gave rise to ground of review under s 476(1)(a) of Act.

MIGRATION - application for protection visa – visa applicant without nationality – application of Article 33 of Refugees Convention – visa applicant had not been accorded effective protection in the country of former habitual residence – whether visa applicant had been accorded effective protection in a third country and is able to return to third country – whether Tribunal failed to address factual question necessary to determine if visa applicant had effective protection in third country – whether failure to do so constituted error of law under s 476(1)(e) of Act.

Migration Act 1958 (Cth) ss 36(2), 430, 430(1)(a), 476(1), 476(1)(a), 476(1)(d), 476 (1)(e), 476(3)(d), 476 (3)(e), Pt 7 Div 4

Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 applied

Rajendran v Minister for Immigration and Multicultural Affairs (von Doussa, O’Loughlin & Finn JJ, 4 September 1998, unreported) applied

Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 applied

Al-Sallal v Minister for Immigration and Multicultural Affairs [1999] FCA 369 applied

Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] FCA 1332 applied

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 applied

Logenthiran v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 639 applied

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 applied

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 applied

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 applied

Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 applied

Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 applied

Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 applied

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 applied

Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 considered

Minister for Immigration and Ethnic Affairs v Prathapan (1998) 86 FCR 95 considered

Re The Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham [2000] HCA 1 applied

Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 considered

Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508 applied

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 considered

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 considered

Pettit v Dunkley [1971] 1 NSWLR 376 referred to

Collins v Repatriation Commission (1980) 48 FLR 198 referred to

Dornan v Riordan (1990) 24 FCR 564 referred to

Davies v Australian Securities Commission (1995) 59 FCR 221 referred to

Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 referred to

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v SAMEH

N 645 OF 1999

MATHEWS, TAMBERLIN & MANSFIELD JJ

12 MAY 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay to the respondent costs of the appeal to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of a judge of the Court granting judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) given on 12 February 1999 refusing the respondent (“Mr Sameh”) a protection visa.

2                     Mr Sameh arrived in Australia on 16 October 1998 and promptly applied for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  Section 36 (2) of the Act prescribes as a criterion for the grant of the visa that the applicant be a person to whom Australia has protection obligations under the Refugees Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  The relevant provision of the Convention is Article 1A(2) which relevantly defines a refugee as any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     Mr Sameh is a person who has never had a nationality.  He is described as a “Bedoon”, which the learned primary judge identified to be the Arabic word for “without” and can be used as an abbreviation for the phrases “without nationality” and “without citizenship”.  He was born in Kuwait in 1963.  He lived there until 1992, when he was deported to Iraq.  In December 1994, he left Iraq for Jordan.  He mainly remained in Jordan until he left for Australia in late 1998, apart from periodic visits to Yemen to renew his temporary Jordanian visa.

4                     Before the Tribunal, Mr Sameh claimed that he was unable or, owing to a well founded fear of being persecuted for various Convention reasons, unwilling to return to either Jordan, Iraq or Kuwait.  As Mr Sameh has no nationality, the Tribunal first addressed which of Kuwait, Jordan and Iraq was the country of his former habitual residence, and then whether he was unable or unwilling to return to that country for a Convention reason.  It found that Kuwait was the country of Mr Sameh’s former habitual residence.  It was also satisfied that he held a well founded fear of being persecuted by reason of his membership of a particular social group, namely the Bedoon, if he were to return to Kuwait.

5                     The Tribunal then addressed whether, even if neither Jordan nor Iraq was the country of his former habitual residence, either of those countries were countries to which Australia might return Mr Sameh in circumstances in which Australia would not be in breach of one of the operative Articles of the Convention, in particular Article 33.  Article 33 of the Convention provides:

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

6                     If Mr Sameh has been accorded effective protection in a third country, and is able to return there, then Australia would not have protection obligations towards him under Article 33 of the Convention:  Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 (“Thiyagarajah”) and Rajendran v Minister for Immigration and Multicultural Affairs (von Doussa, O’Loughlin & Finn JJ, 4 September 1998, unreported).  In Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9, 2 March 2000, the High Court allowed an appeal from the Full Court’s decision in Thiyagarajah.  It did so only upon the basis that the appropriate orders, once the Full Court had determined that Australia did not have protection obligations towards the visa applicant, were to allow the appeal and to dismiss the application for review.  It was not asked to reconsider the Full Court’s reasoning about the operation of Article 33 of the Convention.

7                     In addressing Article 33 the Tribunal considered whether Mr Sameh could lawfully re-enter those countries or either of them without his life or freedom being at risk, and whether those countries would properly consider any claim by him for refugee status.  If he would be refused entry, or upon entry simply be returned to Kuwait, then he would not have effective protection in that third country under Article 33 of the Convention.  Australia would then, having regard to the findings of the Tribunal that Mr Sameh could not safely turn to Kuwait as his country of former habitual residence for a Convention reason, owe Mr Sameh protection obligations.

8                     The Tribunal noted that Mr Sameh claimed to have had problems in Iraq, where he lived between December 1992 and December 1994, in that he was unable to work, drive, get married and access health services.  He also claimed to have been detained and harassed by the Iraqi authorities.  Mr Sameh claimed that he had therefore travelled to Jordan on a false passport and then lived in Jordan until he left for Australia.  The Tribunal accepted that Mr Sameh may have had some difficulties in Iraq, due to his lack of documentation, and that he may have procured a false Iraqi passport to enable him to travel to Jordan.  However, it was not satisfied that the harassment he received in Iraq was sufficient to amount to persecution, nor that that harassment was for a Convention reason.  It noted that general country information about Iraq did not suggest that Bedoons suffered persecution in Iraq, and that Iraq was generally appreciative of Bedoons for their support during the Gulf War.  Those vulnerable to persecution in Iraq were persons suspected of opposing the governing regime.  There was no suggestion that Mr Sameh fell into that group.  Accordingly, the Tribunal found that Mr Sameh did not have a well founded fear of persecution if he were to return to Iraq.

9                     The Tribunal then found that Mr Sameh could return to, and remain in, Iraq.  It referred to Iraqi legislation providing for persons such as Mr Sameh to enter and reside in Iraq, and to country information which showed that Iraq had received many Bedoons and had been generous with asylum seekers.  It also found that there was no risk that Iraq would return Mr Sameh to Kuwait.  Thus, it concluded that Mr Sameh has effective protection in Iraq so that Australia did not owe him protection obligations.

10                  The Tribunal also accepted that Mr Sameh had had some problems whilst living in Jordan.  He was paid less than Jordanians, and was stopped by police on occasions because he had overstayed his visa but was released after paying a fine.  It concluded, however, that those problems did not amount to persecution for a Convention reason.  It concluded that Mr Sameh did not have a well founded fear of persecution for a Convention reason if he were to return to Jordan.

11                  It also found that Mr Sameh could return to Jordan and reside there.  Its findings were in the following terms:

“Jordanian legislation provides avenues for people like the applicant to enter and reside in Jordan (see pp26-31).  In addition, there is considerable evidence that tens of thousands of people have sought protection and reside in Jordan where they can apply for refugee status, where they are treated leniently if they enter clandestinely, lack documents as the applicant would, or overstay their visas (pp26-32).  In relation to the second consideration, the applicant has not claimed and the evidence does not indicate that there is a risk that Jordan would return the applicant to Kuwait.  On the contrary, the evidence clearly indicates that Jordan has given asylum to Kuwaiti Bedoons, that immigration authorities have treated them leniently and that their claims for asylum fall under the scope of the UNHCR statute.”

12                  It also found, therefore, that Mr Sameh has effective protection in Jordan (as well as in Iraq).  That finding provided an alternative reason why Australia did not owe him protection obligations under the Convention.

13                  Mr Sameh’s application for judicial review was determined on a discrete point.  The learned primary judge found that neither Jordan nor Iraq were parties to the Convention.  His Honour followed his earlier decision in Al-Sallal v Minister for Immigration and Multicultural Affairs [1999] FCA 369, 8 April 1999 to the effect that a country could not be a “safe third country”, that is a country to which Mr Sameh could enter and remain and receive effective protection under the Convention unless that country was a party to the Convention.  As neither Iraq nor Jordan are parties to the Convention, his Honour found that the Tribunal had erred in law in finding that Australia had no protection obligations towards Mr Sameh by reason of his ability to return to, and remain in, and receive effective protection in Jordan and Iraq.  Consequently, his Honour concluded that, as the Tribunal had accepted that Mr Sameh had a well-founded fear of being persecuted for a Convention reason if he were to return to Kuwait, the Tribunal should have found that Australia owed Mr Sameh protection obligations.  He found that the Tribunal’s failure to do so amounted to an error of law.  That conclusion was not altered by the fact (as found by the Tribunal) that Mr Sameh could infact return to and remain safely in either Jordan or Iraq.

14                  The learned primary judge set aside the decision of the Tribunal of 30 June 1999, and referred the application for review of the decision of the delegate of the Minister for further consideration.  His Honour did not address the other grounds upon which judicial review of the Tribunal’s decision had been sought.

15                  The Minister appealed from that decision on 13 July 1999.  On 29 October 1999, the Full Court of the Court in Minister for Immigration and Multicultural Affairs v Al-Sallal [1999] FCA 1332 (“Al-Sallal”) upheld an appeal from his Honour’s decision at first instance.  The Full Court held that refoulement to a third country, which is not party to the Convention, means that Australia does not have protection obligations to that person under the Convention provided that that person may enter and remain in that third country without risk of persecution for a Convention reason.  Mr Sameh formally submits that the Full Court’s decision is incorrect, and that the decision of the primary judge is correct.  However, he does not contend that the Full Court decision in Al-Sallal is clearly wrong so that this Court should not follow it.  Consequently, consistently with the Full Court decision in Al-Sallal, this appeal must also succeed unless the decision of the primary judge is upheld on other grounds.

16                  Mr Sameh does seek to have this Court uphold the decision of the primary judge on other grounds.  They are grounds which were included in his amended application for review, and are the subject of a notice of contention on this appeal.  Those grounds were not addressed by the learned primary judge, as his Honour determined the application for review on the one ground referred to above.

17                  The grounds of contention are that:

(a)                the Tribunal failed to comply with a procedure required for the making of the decision:  s 476(1)(a), by failing to set out its reasons and findings on material questions of fact and by failing to refer to the evidence or other material on which the findings of fact were based for its decision as required by s 430 of the Act in respect of the following matters:

(i)                  whether Mr Sameh had a well founded fear of persecution for a Convention reason if he were to return to Iraq by reason of his illegal departure from Iraq;

(ii)                 whether Mr Sameh was able to travel to Iraq so that he could gain access to the effective protection which the Tribunal found was available to him in Iraq; and

(iii)               whether Mr Sameh was able to re-enter Jordan without a valid passport or travel document;

(b)               the Tribunal had erred in its interpretation of the applicable law relating to effective protection for a refugee in a third country so as to enliven s 476(1)(e) by:

(i)                  failing to address the question whether there was a real chance that Mr Sameh would be unable to get access to the effective protection which the Tribunal found was available to him in Iraq (this ground was argued in conjunction with ground (a)(ii) above); and

(ii)                 failing to address properly the particular circumstances of Mr Sameh.

Consideration of contentions

18                  The appellant (“the Minister”) first submitted that the grounds of contention as expressed did not, in reality, identify any ground of review available under s 476 of the Act.

19                  It was argued that the essence of Mr Sameh’s complaints amount simply to the complaint that the Tribunal failed to take into account relevant considerations; or that the Tribunal took into account irrelevant considerations.  In respect of the ground of review available under s 476(1)(d) of the Act, s 476(3)(d) and (e) exclude the failure to take into account relevant considerations and the taking into account of irrelevant considerations from those matters which may otherwise fall within its compass.  It does not follow that s 476(3)(d) and (e) limit the scope of the proper operation of ss 476(1)(a) or s 476(1)(e).  Those provisions are explicitly limited to their application to s 476(1)(d).  It is necessary to consider Mr Sameh’s contentions to be satisfied that they truly do fall within the range of errors which ss 476(1)(a) or 476(1)(e) make reviewable.

20                  The Minister also submitted that the Tribunal’s failures to comply with s 430 of the Act, as contended for Mr Sameh, do not give rise to the ground of review under s 476(1)(a) in any event.  Section 476(1)(a) was said to be limited in its operation to the procedures contained in Pt 7 Div 4 (ss 423 – 429A) of the Act.  Section 430 is in Pt 7 Div 5 of the Act.

21                  There have been a number of decisions of the Full Court of this Court that the failure to comply with s 430(1) of the Act does amount to a failure to observe procedures required by the Act to be observed in connection with the making of a decision under s 476(1)(a):  Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24; Logenthiran v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 639; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182; Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811; Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 (“Addo”); Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740; Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 (“Yusuf”).  The Minister has been granted on 11 February 2000 special leave to appeal to the High Court against the decision in Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 and in Yusuf on that issue.  The majority judgment of Whitlam and Gyles JJ in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 (“Xu”) appears to have reached an opposite view; R D Nicholson J in that case reached a similar result but for more confined reasons and did not need to resolve the question to determine the appeal (par 93).

22                  In Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 Burchett J considered the ratio decidendi of the decision in Xu as being based upon a consideration of the facts in that case, and that the observations of the majority on the question whether the failure to comply with s 430 may constitute a failure to comply with a procedure required by the Act to be followed in connection with the making of a decision under s 476(1)(a).

23                  In our judgment, the Court should follow the earlier decisions of Full Courts of this Court that a failure to comply with s 430 does give rise to the ground of review under s 476(1)(a) until the question has been determined definitively by the High Court or by a Full Court of this Court comprised of a bench of five justices.  It would not usefully add to the consideration of this appeal to refer in detail to the reasons which have led those several Full Courts to reach that conclusion.  We do not consider that those various Full Court decisions are plainly wrong (cp. Minister for Immigration and Ethnic Affairs v Prathapan (1998) 86 FCR 95 at 104).

24                  The extent of the obligation imposed on the Tribunal under s 430 was recently addressed by McHugh J in Re The Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”).  His Honour refused to make orders nisi for prerogative relief against the Minister because no arguable case of jurisdictional error was made out.  One ground upon which the prerogative relief was sought was that the Tribunal had erred in law in failing, contrary to s 430(1)(c) of the Act, to set out its findings on material questions of fact.  On that contention, his Honour referred with approval to the observations of the Full Court of this Court in Addo in the following terms at par 64:

“Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based.  Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made.  Accordingly, there was no failure to comply with s 430(1) of the Act.

…

It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”

25                  His Honour said that that passage correctly sets out the effect of s 430(1)(c) and (d) of the Act.  He then added at par 65:

“However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.  But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.”

The illegal departure from Iraq

26                  Mr Sameh made the claim at an early stage that he feared being mistreated in Iraq if he were to return there because he had left illegally.  He said that he had purchased a false Iraqi passport when he left Iraq in December 1994.  That passport was in his name to avoid him getting confused when his identification was checked.  It appears, therefore, that he may have left Iraq through normal channels.  The Tribunal accepted that Mr Sameh had left Iraq on a false Iraqi passport.

27                  The Tribunal has not referred in its reasons to the specific claim that Mr Sameh would face persecution for a Convention reason if he returned to Iraq by reason of his departure from Iraq on a false passport.  It does not appear that the Tribunal expressly considered that claim.  It gives rise to questions about whether Mr Sameh ran any risks upon his return to Iraq by reason of having left Iraq illegally, and if so whether those risks would result from the normal application of Iraqi criminal law or from some form of persecution directed at Mr Sameh for a particular Convention reason.

28                  Counsel for Mr Sameh referred to the Department of Foreign Affairs and Trade, Country Information Report dated 31 October 1997, available to the Tribunal.  It indicated that the meting out of punishment for breaching exit conditions from Iraq depended upon the ability of the Iraqi authorities to monitor the movements of all its residents, and that “opinions vary … as to the repercussions for individuals or family members if ‘found out’.”  Counsel for Mr Sameh also referred to the information in that Report that the application of Iraqi laws is somewhat arbitrary, and that many Iraqis faced “what is defined as ‘disproportionate punishment on return’”.

29                  In that material there is nothing which could indicate that Mr Sameh would be targeted for attention for having left Iraq illegally by reason of him being a Bedoon, nor for any other Convention reason.  In Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at 258-259, McHugh J explained that sanctions must be targeted at persons for reasons of race, religion or nationality, or for reasons of political opinion or the membership of a particular social group, if such conduct is to constitute persecution.  The material relied upon does not point to one of those reasons being the reason for Mr Sameh’s fear in this regard.

30                  Moreover, the Tribunal has made findings pertaining to that concern, albeit in the context of Mr Sameh’s reasons why he did not regularise his status in Jordan for fear that he might, in that endeavour, be returned to Iraq.  He was then in Jordan on the basis of a false Iraqi passport.  The Tribunal found:

“However, the applicant had not had (sic) been persecuted in Iraq where, the Tribunal has found he has effective protection, and the only evidence to indicate that there is a risk of refoulement from Jordan to Iraq, with the possibility of persecution to follow, indicates that this relates to people suspected to be dissidents in Iraq (p32 and evidence provided by the applicant on p12) which the applicant is not.”

31                  That material demonstrates that the Tribunal did consider the consequences to Mr Sameh if he were to be returned to Iraq from Jordan (and by inference at least from Australia, through Jordan, to Iraq).  It is not suggested on his behalf that the position is different because his return would be from Australia through Jordan to Iraq.  It cannot be said that the Tribunal therefore simply failed to address a central plank of Mr Sameh’s claim.  Nor can it be said that the Tribunal failed to give reasons for its conclusion that, if Mr Sameh were to return to Iraq from Jordan, he would not be the subject of persecutory conduct for a Convention reason.  Its reasons are brief, but they contain its findings and the reference to the material relied upon.

The ability to travel to Iraq

32                  The Tribunal noted Mr Sameh’s claim that, if he were to return to Iraq, he would need to go through Jordan because of the United Nations embargo, and that “there are some concerns about returning people to Iraq through Jordan although, there is no mention of what those concerns are.”

33                  In the section of its reasons headed ‘Findings and Reasons’, the Tribunal first dealt with the claim concerning Kuwait.  Then the Tribunal dealt with Mr Sameh’s claims in respect of being returned to Iraq, and alternatively to Jordan.  As noted earlier, it found that Mr Sameh has effective protection in Iraq and in Jordan.  In our judgment, it did not, in that part of its reasons, address the question whether Mr Sameh could obtain access to the effective protection which it found was available to Mr Sameh in Iraq.  To do so, it was necessary to consider whether he was reasonably able to get to Iraq:  Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508 (“Koe”), per Black CJ, Foster and Lehane JJ at 522.  No specific finding was made that that access would have to be through Jordan, but the Tribunal may have implicitly accepted that fact.  There was no evidence brought to the attention of the Court in submissions to suggest any other way in which Mr Sameh could reasonably get to Iraq.

34                  Despite the Tribunal’s comment that there was no mention of what Mr Sameh’s concerns were about getting to Iraq through Jordan, there was quite extensive material on the topic, which the Tribunal itself sought.  In its references to independent evidence, the Tribunal referred at some length to parts of that material.

35                  The Tribunal’s reasons indicate that, when considering whether Mr Sameh had effective protection in either Jordan and Iraq, it invited Mr Sameh to comment upon copies of relevant legislation regulating the situation of stateless persons and of persons in refugee-like situations, as well as inviting his comments upon information provided by the United Nations Human Rights Commission.  That legislation, in relation to Jordan, indicated that the Jordanian authorities tend to give a reprieve in respect of the strict application of immigration laws to persons such as Bedoons who have entered Jordan clandestinely, not in possession of any passport or document.

36                  The Tribunal noted the response (inter alia) that Mr Sameh would not gain re-admission to Jordan without a valid passport.  That response was based upon a facsimile from the UNHCR dated 23 October 1998 to which the Tribunal expressly referred in its reasons for decision.  The facsimile was in the following terms:

“UNHCR is not aware of any specific legislation or administrative measures in Jordan dealing with stateless persons.  It has been the policy of the Jordanian authorities to allow all Arab nationals holding valid national passports leave to enter and remain for up to six months without visas.  After the expiry of this period, such persons are in principle subject to deportation to their countries of origin, unless appropriate Immigration arrangements have been made.

In the case of your client, it would appear that he would not gain re-admission to Jordan, absent possession of a valid national passport.  It is likely, therefore, that he would be returned to his port of embarkation were he to attempt to enter Jordan now.  By the same token, it would appear that he cannot return to Kuwait, both for lack of valid national passport and because of the present policy of non-return for Bedoons.”

37                  The reference to “your client” is not to Mr Sameh.  The facsimile was in response to an inquiry concerning a different visa applicant.  In fact, the Tribunal raised with the UNHCR the accuracy of the contents of its facsimile.  On 14 December 1998, the Tribunal sought further written information from the UNHCR in the light of its having obtained an extract from Jordanian legislation (also from a UNHCR database) suggesting to the contrary of the advice given in the facsimile of 23 October 1998.  UNHCR responded on 16 December 1998 but did not then deal directly with that issue.  It confirmed that the majority of Bedoons expelled from Kuwait in the aftermath of the Gulf War have been issued with the Iraqi “Arab ID Card” which enables them to take up legal employment and to enjoy freedom of movement within Iraq itself.  That reply indicated that further information would be provided if it became available.  The Tribunal again pursued the question with UNHCR by inquiry dated 11 January 1999 in the light of the apparently conflicting information on the question.  Its further response of 19 January 1999, referred to the Jordanian ‘Law of Residence and Foreigners’ Affairs’ as dealing incidentally with issues related to stateless persons, and to persons in “refugee-like situations”.  The response continued:

“In general, all foreigners possess valid travel documents and visas before entering Jordan.  Where an individual enters Jordan with false documentation or in a clandestine manner with the intention of seeking asylum, the Jordanian authorities require such persons to regularise their immigration status before a determination of refugee status can take place.  Where the asylum-seeker has approached Government authorities, s/he is usually referred to UNHCR.  Where an asylum-seeker is recognised as a refugee under UNHCR’s mandate, the Jordanian authorities usually allow entry on the condition that such persons be resettled in a third country.

We do not believe that any of the foregoing contradicts the information contained in our fax dated 23 October 1998 nor the cable from DFAT dated 12 October 1998.”

38                  It is unclear what view the Tribunal formed about that material or what use it made of it.

39                  When considering the independent evidence in relation to Bedoons in Jordan, the Tribunal referred to the UNHCR information of 23 October 1998, and later to that provided on 19 January 1999, although in neither case was the final paragraphs of those two documents (as set out in pars 35 and 36 above) quoted.  Mr Sameh also referred to the information provided by the Department of Foreign Affairs and Trade on 26 October 1997 to the following effect:

“We have been advised that very few Iraqis who seek refugee status in countries such as the UK and Canada (without first going through the system in Jordan), are returned to Iraq.  We were advised that the Jordanian authorities are very reluctant to transit through Jordan those Iraqis who have sought refugee status overseas, and are being forced to return.  On the very few occasions when this has occurred, the Iraqis in question have not only breached their visa conditions but also committed certain crimes in their adopted country.”

40                  The issue which, in our judgment, the Tribunal has failed to address is how Mr Sameh can reasonably travel to Iraq to access the effective protection which the Tribunal found was there available to him.  It is not sufficient for the Tribunal to have found that Iraq would have admitted Mr Sameh within its boundaries if he is not reasonably able to reach those boundaries.  The Tribunal found that he would be admitted to Iraq, but did not address how he might reasonably travel to those boundaries.  In the particular circumstances of Mr Sameh’s claim, that was a matter which the Tribunal was obliged to address.  It was one of a series of critical factual matters which the Tribunal had to address to determine whether Mr Sameh has effective protection in Iraq.

41                  In Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 (Spender, North and Merkel JJ, 9 March 1999) the Full Court observed that:

“… the inquisitorial and non-adversarial function of the RRT and the combined effect of the provisions governing the exercise of its inquisitorial powers (ss 414(1), 420, 425, 426, 427, 428 and 430) are such that the RRT is required to determine the merits of the case and in doing so each of the material issues raised by the material and evidence before it.  That duty, in our view, is a fundamental incident of the statutory function of the RRT.  In determining those issues the RRT must make findings on the questions which are central to the case raised on the material and evidence before it: see also Calado v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998) at 21-22; Buljeta v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 4 December 1998) at 13-14; and Logenthiran at 13 per Wilcox and Lindgren JJ and 1-2 per Merkel J.  The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.

42                  Similar views were expressed in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (Wilcox, Hill and Madgwick JJ, 19 March 1999) and the cases discussed at pars 21-23 of their Honours’ reasons.  As that consideration indicates, the failure to address all the substantial matters which might bear on whether an applicant for a protection visa meets the Convention requirements of a refugee amounts to a constructive failure to exercise its jurisdiction.  Such a decision will be one “not authorised by the Act” within the meaning of s 476(1)(c) of the Act, and may involve an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found within the meaning of s 476(1)(e) of the Act.  The extent of the obligation to set out the findings on any material questions of fact, and to refer to the evidence or other material on which those findings of fact were based, under s 430(1)(c) and (d) was explained by McHugh J in Durairajasingham.  His Honour was not there dealing with a circumstance such as the present where the Tribunal had made no finding at all on a fact material to its determination whether Mr Sameh has effective protection in Iraq.

43                  In our judgment, that fact was one which as a matter of law the Tribunal was obliged to address in the particular circumstances to properly consider whether Mr Sameh had effective protection in Iraq.  Its failure to do so indicates that its decision involved an error of law, being either an incorrect application of the applicable law by failing to appreciate that in the circumstances that fact was one which the applicable law required to be addressed, or an incorrect application of the law to the facts as found by the Tribunal by being satisfied upon those facts that Mr Sameh had effective protection in Iraq without the need to address that additional fact.  We are also of the view that, because the applicable law required in the particular circumstances that fact to be addressed, the Tribunal has failed to comply with s 430(1)(c) by not setting out its finding on that material fact or with s 430(1)(d) by not referring to the evidence or other material on which such finding of fact was based.  For the reasons expressed earlier, a failure to comply with s 430(1)(c) and (d) amounts to a failure to observe a procedure required by the Act to be observed in connection with the making of the decision so as to give rise to the ground of review available under s 476(1)(a).

The ability to re-enter Jordan

44                  This ground of review was limited to the claim based upon s 476(1)(a) and s 430(1)(c) and (d).

45                  The Tribunal’s conclusions are set out in par 10 above.

46                  The Tribunal made a finding on the question in issue.  It found that Mr Sameh would be able to enter, and remain in, Jordan.  In reaching that conclusion, it identified the material upon which it relied and explained how, in its view, that material enabled it to reach that conclusion.  Included in that material was the country information from the Department of Foreign Affairs and Trade that:

“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

59                  For the reasons given, in our judgment this appeal should be dismissed.  The orders made by the learned judge at first instance should stand, albeit for the reasons now given.  The Minister should pay to Mr Sameh his costs of this appeal to be taxed.

Associate:

Dated:              12 May 2000