SZHRZ v Minister for Immigration
[2006] FMCA 1066
•19 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHRZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1066 |
| MIGRATION – RRT decision – Jordanian applicant – claimed persecution due to political membership – disbelieved by Tribunal – no jurisdictional error – adjournment to obtain transcript not granted. |
| Migration Act 1958 (Cth), ss.91R, 91R(3), 474(1), 483A Judiciary Act 1903 (Cth), s.39B |
| Applicant: | SZHRZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3504 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 19 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr El-Hanania |
| Solicitors for the Applicant: | Slattery Thompson |
| Counsel for the First Respondent: | Mr T Riley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3504 of 2005
| SZHRZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 30 November 2005 under s.483A of the Migration Act 1958 (Cth) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 19 October 2005 and handed down on 8 November 2005. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act and Acts Interpretation Act 1901 (Cth), s.8).
The Court's powers under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but they are subject to limitations under Part 8 of the Migration Act which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claim should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in February 2005 on a visitor's visa and made an application for a protection visa on 22 March 2005. In his application, he explained why he sought protection in Australia so that he did not have to return to his country of nationality, Jordan. His statements written in the form of application were diffuse, but were given some details in an attached handwritten statement. The Tribunal summarised the effect of that statement in its reasons, and I consider that its summary was adequate:
The applicant claims that:
• He has been arrested and imprisoned in the past because of his political views.
• He has been prevented from working at different times because of his political views.
• He came to be of adverse interest to the Jordanian authorities in 1999 when he was preparing to travel to Saudi Arabia. He was interrogated before he went there and when he returned in relation to where he went and whom he met. When he returned he was detained for five days.
• He was interrogated and detained on several other occasions when he returned to Jordan from travels abroad.
• He did not apply for refugee status in Australia in 2000 or in Sweden in 2001 because he thought that the situation in Jordan would improve.
• He joined the Hezb ut-Tahrir in 2002.
• In May 2002 he had to report to the intelligence services and was questioned every day for a week. He was then arrested and imprisoned for a week.
• In March 2003 he was detained for fourteen days when he attended a demonstration against Jordan’s support of the American occupation of Iraq. He was released after he signed a statement agreeing to stop his political activities.
• He would be imprisoned if he returned to Jordan because the authorities believe he has returned to political activities and have arrested colleagues in the Hezb ut-Tahrir.
Evidence before the Tribunal was that the Hezb ut-Tahrir is a "radical Islamic political movement" that seeks "implementation of pure Islamic doctrine" and the creation of an Islamic caliphate in central Asia. The group has members throughout the Islamic regions, and the country information before the Tribunal indicated that its members were the subject of repression by state authorities in countries including Jordan.
It is only necessary for me to extract from the applicant's handwritten statement the passage in which he referred to his travels in 2001, obtaining a new passport, and becoming a member of this "secret party":
From May 2001 til 2003 in Oct I been unemployed during that time I travelled to Europe to look for new opportunity out of Jordan. I travelled to Sweden through Amsterdam, also I visit Germany all that after 11 of September in USA. I travelled in Oct 5 and back 30 of Oct 2001, I have many friend in Sweden and Germany, Palestinian and Jordanian asked me to apply for Protection (Refugee). I refuse that because I think the situations in Jordan will be better after new King and government arrived, but after that nothing changed till that minute after that I back to Jordan the situations not bad as will happen later to me. In the first year of 2002 I want to renew my passport, the Immigration told me I must check the intelligence I can’t issue the new passport without check them. I spent more than week to issue it after one week of keep checking with intelligence Dept, keep question for my public opinion and opinion against the government political. Then later on I apply for Liberation party in Jordan 2002. I met with other member. It was secret party but the government and intelligence now something that there are many parties against the government one of it our party and Mah ‘D Army Party and Islamic Party.
A delegate refused the application on 7 April 2005, and the applicant appealed to the Refugee Review Tribunal on 1 June 2005. His application did not appoint an agent or authorised recipient, but on
29 August 2005, Mr Saba El-Hanania notified the Tribunal that he had been authorised to act for the applicant. Mr El-Hanania has acted for the applicant in all his subsequent proceedings in the Tribunal and in this Court, and appeared today to present the applicant's case.
The applicant did not present further supporting material to the Tribunal prior to attending a hearing held by the Tribunal on 31 August 2005. The applicant was accompanied by Mr El-Hanania and another member of his firm. A transcript of the hearing has not been presented to the Court. I shall refer to below to a belated application at today's hearing for an adjournment to allow a transcript to be presented. I refused that application for reasons I shall explain.
The evidence of what was said at the hearing is therefore to be found in the statement of reasons of the Tribunal. The Tribunal set out extensive questioning of the applicant about his travel from Jordan before travelling from that country on his visitor's visa to come to Australia in 2005. The applicant indicated that he had travelled out of Jordan in June 1999 and again in 2003 and 2004 to work in Saudi Arabia, and said that he had "also visited Syria a few times". The Tribunal also said:
The applicant stated that he had been issued with passports on three occasions.
The applicant told the Tribunal about a visit in 2000 to Australia for the Olympic Games, and a visit to Sweden and the Netherlands in 2001.
The Tribunal received further evidence from the applicant concerning his membership of the Hezb ut-Tahrir. In particular the Tribunal recorded:
The applicant claimed that after he returned to Jordan he was unemployed and was banned from travelling for the next two years. He claimed that during this time he was an activist working with political parties and other organisations. The applicant stated that he was a member of a club which was close to a refugee camp and that he was a member of the Hezb ut Tahrir. He claims that he was prevented from travelling for this reason and was also oppressed because of his association with this party.
I asked the applicant when he became active with the party. The applicant stated that he became active in 2000 or 2001. He stated that he became more active after he returned to Jordan from Sweden. He stated that there is no formal membership of the party and that the party does not provide any document saying that a person belongs to the party.
The Tribunal also questioned the applicant about his involvement with that party in Australia. He told the Tribunal that he had last attended a meeting three weeks prior to the hearing. The Tribunal said:
The applicant stated that he first went in March, indicating that he was not involved in any party activities for the first two months subsequent to his arrival in Australia. He claimed that he could not approach them when he arrived in Australia because of his financial and psychological condition. The applicant indicated that he had not approached Hezb ut-Tahrir until he had lodged his protection visa application.
The applicant was asked to give details about his being detained in Jordan on three occasions. The applicant first described a detention in November 1999:
He stated that he was detained for five days, including the interrogation period. The applicant claimed that he was detained because the Jordanian authorities wanted to know why he had travelled to Saudi Arabia and what he had done there. He claimed that they said that he had developed political activities in the refugee camp. He stated that they were aware he was involved in other political organisations.
I asked the applicant why he was released after five days. He stated that they wanted information from him. The applicant claimed that he was very seriously tortured while in detention. He stated that they beat him with sticks, belts and with a metal cable. The applicant claimed that he was told that he had to confess or that he had to report. The applicant stated that he did do either of these things. I asked the applicant why, in this case, he was released. He claimed that they could not substantiate anything and wanted him to report for them. The applicant stated that he did not do so and that he told them that he wouldn’t be an informant.
I asked the applicant whether he received medical treatment after he was released from detention. The applicant stated that he went to the doctor. He also stated that they used torture which leaves no marks. I put to the applicant that there are such methods, but that this was not the case if he was being beaten with sticks, belts and cable. The applicant then stated that he had psychological damage. He indicated that he was beaten on different parts of body, but the marks were not severe and would disappear after four or five days.
The applicant described a second time in detention in June 2000, in which he was detained for two days, interrogated and placed under surveillance in the course of his employment at a hotel.
The applicant then described a third detention in March 2003, after his return from Europe and before he travelled to Saudi Arabia. He claimed to have been arrested after participating in a demonstration in which numerous people were arrested. The demonstration was opposing the support of the Jordanian government for the American-led war in Iraq. The applicant described this detention:
The applicant claimed that he was in detention for fourteen days and was accused of being an organiser. He claimed that they couldn’t establish anything. He claimed that it was a “random” arrest and he was not taken to court. He stated that they could not charge him because they could not establish that he was a party member. The applicant stated that there was pressure on the government from human rights activists. The applicant claimed that he was tortured and deprived of food and drink for the fourteen days he was detained. The applicant claimed that he was beaten with cables and was raped. The applicant indicated that after he was released restrictions were imposed on him requiring him not to leave.
The Tribunal described various matters of concern to it, which it put to the applicant.
On 21 September 2005, pursuant to leave given by the Tribunal at the hearing, Mr El-Hanania forwarded to the Tribunal written submissions, and also enclosed a report by a clinical psychologist giving opinions about the applicant's mental state. It is unnecessary for me to examine that report since it does not feature in any of the grounds of review.
Mr El-Hanania’s letter said:
We enclose herein our submissions for the Applicant, namely file number N05/51416. Furthermore enclosed is a psychologist report by Dr Jacmon assessing that Applicant on 5 September 2005.
We request that you peruse through these documents prior to determining the final outcome.
Moreover, as requested by the Member at the hearing, a copy of both Passports of the applicant is also enclosed herein.
If there are any queries, please contact Mr Saba El-Hanania the person giving legal assistance or Mr Harry Chand migration agent in charge of this matter.
Enclosed with that letter were the written submission, the clinical psychologist's report, and copies of pages two passports in the name of the applicant, one issued on 30 August 1997, and a second passport issued on 3 January 2002. I shall refer below to one part of the contents of the submission.
In its statement of reasons, the Tribunal, referred to all the above material, and identified country information about Hezb ut-Tahrir and its outlawing in Jordan in 1957. The Tribunal noted:
Hizzb ut-Tahrir was outlawed in 1957 when the late King Hussein banned political parties. … The group is the only one in Jordan not to have applied for an official licence when political parties were legalised in September 1992 after a 35 year ban, because it does not recognise Jordan's Constitution….
Under the heading 'Findings and Reasons', the Tribunal presented its conclusion at the start. It said:
I accept that the applicant is a Jordanian national. I am of the view that significant aspects of his claims were internally inconsistent and implausible. I do not accept that the applicant is a credible witness.
The Tribunal referred to four points explaining that conclusion which I shall address below, and then made a general finding:
Overall, I do not accept that the applicant was associated with Hezb ut-Tahrir in Jordan. I do not accept that the applicant was detained or mistreated for this reason. I do not accept that the applicant was otherwise of adverse interest to the Jordanian authorities for reasons of his political opinion or for any other reason at the time he left Jordan or currently. I do not accept that the applicant was banned from travel or from employment. I am of the view that the applicant fabricated his claims to be of adverse interest to the Jordanian authorities in an attempt to create for himself the profile of a refugee. I am not satisfied that the applicant has a well-founded fear of persecution arising from his claims concerning political activity in Jordan.
The Tribunal considered the implications of the applicant's claim to have attended Hezb ut-Tahrir gatherings in Australia. It referred to s.91R(3) of the Migration Act, and made a finding:
I accept that the applicant has attended Hezb ut-Tahrir gatherings in Australia. However, in my view, the applicant has done so in order to strengthen his claims for refugee status. In view of this finding, section 91R(3) of the Act requires that the applicant's conduct in this regard be disregarding in determining whether he has a well founded fear of persecution for a Convention reason. In any event, I do not accept that the applicant has any genuine commitment to Hezb ut-Tahrir or that he would be involved with the party if he returned to Jordan.
The Tribunal's application of s.91R was the subject of two unclear grounds of review in the amended application before me. These were clarified by Mr El-Hanania who argued that the Tribunal’s application of s.91R was vitiated by an erroneous factual finding, which I shall address further below.
It was not contended that the above paragraph revealed any misapprehension as to the legal effect of s.91R(3), and in my opinion, it did not reveal any material error. The terms of that provision did not require the Tribunal to arrive at a positive finding as to the purposes for which the applicant had engaged in his conduct in Australia, since the section places an onus on the applicant. However, plainly the Tribunal was not satisfied by the applicant that “the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol”, within s.91R(3)(b).
The Tribunal then addressed, and rejected, the consideration that the applicant might be persecuted if he returned to Jordan because he had Palestinian ethnicity. It is unnecessary for me to examine its reasons in this respect.
The Tribunal also rejected a claim that the applicant faced persecution because he had applied for asylum in Australia. The Tribunal said it did not accept that claim because:
There is no independent evidence before me suggesting that failed asylum seekers face persecution in Jordan.
The Tribunal also said that it had no reason to conclude that the applicant's protection visa application was known to Jordanian authorities or would become known to them.
The Tribunal noted the psychologist’s report, but said that it was not satisfied that any mental illness suffered by the applicant arose as a result of his being persecuted by reasons of his political opinion or any other Convention reason. That conclusion is not under challenge before me.
The Tribunal summarised its conclusions at the end of its reasons:
In summary, I do not accept that the applicant was involved in Hezb ut-Tahrir or any other political group in Jordan which brought him to the adverse attention of the Jordanian authorities. I do not accept that the applicant has been detained or otherwise mistreated because of his political opinion. I do not accept that the applicant has been banned from employment or from travelling for this reason. I do not accept that the applicant was of adverse interest to the Jordanian authorities prior to his departure from Jordan or that he is of adverse interest to the Jordanian authorities currently. I consider that the applicant fabricated these claims in an attempt to create for himself the profile of a refugee.
I accept that the applicant has attended some Hezb ut-Tahrir gatherings in Australia. However, I do not accept that the applicant would become involved in the organisation if he returned to Jordan. I am not satisfied that his attendance at meetings in Australia gives rise to a well-founded fear of persecution for a Convention reason in Jordan and even if this were not so, section 91R(3) of the Act requires that the applicant’s conduct in attending Hezb ut-Tahrir while in Australia be disregarded for the purposes of determining whether he has a well-founded fear of persecution for a Convention reason. I am not satisfied that the applicant has a well-founded fear of persecution because he is Palestinian or because he has applied for refugee status in Australia.
Mr El-Hanania addressed an amended application filed on 20 June 2006, which contains a broad contention that:
The second respondent's findings as to the credibility of the applicant's claims was not supported by any probative evidence and was so unreasonable that no reasonable Tribunal could have so found.
The arguments in support of this contention challenged three of the four separate reasons given by the Tribunal in support of its adverse credibility finding, and I shall deal with each of these separately.
The Tribunal's first reason was:
The applicant claims that he is of ongoing adverse interest to the Jordanian authorities because of his involvement with the Hezb ut-Tahrir. I reject the applicant’s claim in this regard. Firstly, if the applicant had been an Hezb ut-Tahrir activist, as he claims, it is implausible that he would have been able to obtain a passport on three occasions. The independent evidence before me confirms that Hezb ut-Tahrir does not recognise the Jordanian constitution and remains illegal in that country. In my view, the applicant’s ability to obtain a passport and travel in and out of Jordan on a number of occasions is inconsistent with the independent evidence before me relating to the treatment of Hezb ut-Tahrir supporters in Jordan.
Mr El-Hanania argued that it was not open to the Tribunal to base this reasoning upon a finding of fact that the applicant was "able to obtain a passport on three occasions", nor that he had been able "to obtain a passport and travel in and out of Jordan on a number of occasions" after becoming a supporter of Hezb ut-Tahrir. He argued that the applicant’s written statement in fact had suggested that he first became a member in 2002, after he had obtained the second passport shown to the Tribunal and had returned from Sweden.
However, I cannot be so satisfied that there was no evidence permitting the Tribunal’s findings. As I have set out above, according to the Tribunal’s statement of reasons, the applicant’s evidence to the Tribunal included evidence that "he had been issued with passports on three occasions" and that “he became active” in the Hezb ut-Tahrir party "in 2000 or 2001". The applicant also told the Tribunal that he subsequently travelled both to Europe and Saudi Arabia before travelling to Australia on his last visit. I therefore do not consider that the factual bases of the Tribunal's reasoning in relation to its first reason have been demonstrated to have been without any evidentiary support.
The Tribunal’s third reason for finding against the credibility of the applicant's claim was:
Thirdly, the applicant’s behaviour is inconsistent with his claim to have been mistreated by the Jordanian authorities. Even though the applicant claims that he had been detained and seriously mistreated in 1999 and 2000, the applicant nevertheless returned to Jordan from his trips to Australia and Sweden. In my view, if the applicant had faced serious harm because of his political activities as he claims, it is implausible that he would return to Jordan and not apply for protection while outside that country. In my view the applicant advanced no cogent reason for his failure to apply for protection when he had the opportunity to do so. In addition, although the applicant obtained an Australian visa on 31 August 2004 prior to his return to Saudi Arabia, he returned to Jordan prior to travelling to Australia. The applicant explained that he had to return to Saudi Arabia to work out his contract. However, this does not explain why the applicant returned to Jordan – where he claims to have a history of serious mistreatment – rather than travel directly from Saudi Arabia to Australia. In my view, the applicant has not advanced any cogent reason for his return to Jordan in November 2004.
Mr El-Hanania contended that the Tribunal's reasoning was premised upon an opinion that "the applicant claims that he had been detained and seriously mistreated in 1999 and 2000", and that this was incorrect as a matter of fact.
However, here too, I am not satisfied that its factual opinion was not open to the Tribunal on the evidence before it. I have set out above what the Tribunal said it was told by the applicant as to the nature of his mistreatment in relation to his three detentions. It is plain, in my opinion, that it was open to the Tribunal to make a finding that the applicant had claimed that the 1999 detention was accompanied by "serious mistreatment" as a result of his political activities or suspected political activities. I therefore do not consider that any error of fact occurred in this paragraph, nor that it supports the contention of a general absence of factual foundation for the Tribunal's adverse conclusion on credibility.
The Tribunal's fourth reason for finding against the credibility of the applicant was:
Fourthly, the applicant’s behaviour once he arrived in Australia is not consistent with his claim to be Hezb ut-Tahrir activist who has faced serious mistreatment for this reason. The applicant’s evidence indicated that he did not approach the local Hezb ut-Tahrir group until he had been in Australia for some two months and after he lodged his protection visa application. In my view, if the applicant had been a person committed to Hezb ut-Tahrir, he would have sought the fellowship of others associated with the party at the earliest opportunity. I do not consider that the applicant has advanced any convincing reason for his failure to make contact with Hezb ut-Tahrir members when he first arrived in Australia.
It was not contended that there was no factual basis for the Tribunal's conclusion that in fact the applicant did not approach the local Hezb ut-Tahrir group until he had been in Australia for two months. However, it was contended, in effect, that the applicant's explanation given to the Tribunal should have been accepted. The Tribunal's adverse inference was then argued to have been incorrect.
However, I do not consider that the criticisms made of the Tribunal’s adverse inference were able to identify any error of fact which could provide jurisdictional error. Indeed, I consider that on the evidence before the Tribunal it was open to it to reject the applicant's explanation, and to give adverse significance to his evidence about his actions in Australia. I therefore reject the grounds of the application which sought to establish error in the Tribunal's fourth reason for rejecting the applicant’s general credibility, and also the contention that its conclusions in relation to s.91R(3) were tainted by the same error of fact.
At the start of his submissions, Mr El-Hanania's attention was drawn to the absence of a transcript before the Court which could allow it to reach the conclusions which he was urging, i.e. that there was no evidence before the Tribunal upon which the challenge of findings of fact were open. After an exchange with the Bench, he disclaimed seeking an adjournment and indicated that he would rely on the documents in the green book. It was only in reply to submissions from counsel for the Minister that Mr El-Hanania first applied for an adjournment to allow the applicant to obtain a transcript of the hearing. He said that this would "allow the Court to be certain" as to what was said to the Tribunal. No evidence was presented to support the contention that the Tribunal had wrongly recorded the applicant’s evidence, although that was the implication of his submissions.
The adjournment was opposed by the Minister. The Minister's counsel pointed out that Mr El-Hanania had been on the record as the applicant's solicitor since the inception of the proceeding in November 2005, and that at the first Court date on 17 January 2006 the Court had given directions that the applicant "Must file and serve any additional affidavits by 21 April 2006" and that:
Other than the green book, all evidence relied upon by the parties shall be presented by way of affidavits. Evidence of the Tribunal hearing shall be presented as a transcript verified by affidavit, and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.
The directions also ordered the filing of an amended application to rectify the absence of what was perceived as inadequate particulars of some of the grounds of review in the application, and the matter was adjourned for further directions on 23 May 2006. On that occasion the applicant appeared by counsel, who accepted that the matter should be listed for a final hearing today. I therefore set the matter down in the expectation that it would be ready to proceed today.
An amended application was filed subsequent to that date, on 20 June 2006, which made the clear assertions that the Tribunal member had erred in its findings of fact in relation to the obtaining of three passports and the years in which the applicant had been a member of Hezb ut-Tahrir. It should have been abundantly clear that those contentions would face difficulties in the face of the Tribunal's description of the hearing in its reasons.
The Court has great difficulty in migration matters in finding dates for adjournments, and it should be well known in this jurisdiction that it is unable to give adjournments as a matter of indulgence. I consider that the applicant has already been allowed a reasonable opportunity to present to the Court a transcript in support of the grounds raised by the amended application. For that reason, I refused the adjournment and proceeded to conclude today's hearing.
For the reasons given above, I do not accept the factual premises upon which the general contention of absence of probative evidence and unreasonableness in the Tribunal's decision was based. I therefore reject those grounds.
The only remaining ground which was argued by Mr El-Hanania was ground 3 in the amended application:
3. The member of the second respondent failed to identify that there was independent evidence before the Tribunal on failed asylum seekers facing persecution in returning to Jordan when it did have evidence before it.
Particulars
Submission to the Tribunal provided the following independent evidence;
a) Human Rights Watch’s Middle East Division, Mr Joe Stork torture still occurs.
b) In 2004 Court documents did provide that if Abu Qatada was returned to Jordan he would be likely face persecution or at the very least breaches of his human rights under Article 3 of the European Convention on Human Rights.
c) Jordan’s General Intelligence Department, prisons and ordinary police stations all have known records of abuse. In September 2004, the National Human Rights Center, an official body, announced that Abdullah al-Mushaqaba had died in Juwaida Prison as a result of torture.
d) In 2004, the National Human Rights centre received 250 allegations of torture or ill-treatment in Jordanian detentions. These numbers do not include the General Intelligence Directorate, as they do not allow any visits by non-governmental human rights monitors. The Intelligence Directorate is often the first place of detention for security detainees.
By the member not taking into consideration of the above independent evidence amounted to a jurisdictional error or law. This is elaborated in page 16 of the Tribunal’s decision.
The reference to the applicant’s written submission to the Tribunal is a reference to four paragraphs in that document, and not to any accompanying material. There was no such accompanying material. The relevant paragraphs were:
5.Although, Jordan is a party to the Convention against the Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits torture and under International law, the prohibition against torture and refoulement is absolute and cannot be waived under any circumstances, nevertheless, it is clear that according to the deputy director of Human Rights Watch’s Middle East Division, Mr Joc Stork torture still occurs.
6.In 2004 Court documents did provide that if [name] was returned to Jordan he would likely face persecution or at the very least breaches of his human rights under Article 3 of the European Convention on Human Rights.
7.Jordan’s General Intelligence Department, prisons and ordinary police stations all have known records of abuse. In September 2004, the National Human Rights Center, an official body, announced that Abdullah al-Mushaqaba had died in Juwaida Prison as a result of torture.
8.In 2004, the National Human Rights Centre received 250 allegations of torture or ill-treatment in Jordanian detentions. These numbers do not include the General Intelligence Directorate, as they do not allow visits by non-governmental human rights monitors. The Intelligence Directorate is often the first place of detention for security detainees.
The Tribunal acknowledged receiving the submission in its statement of reasons, and I find that it probably considered its whole contents. It is true that it did not specifically discuss the above four paragraphs, but I would not draw any inference from the absence of such discussion that they were overlooked by the Tribunal. The contents of the paragraphs was not of such obvious significance and weight that I could draw such an inference from the absence of discussion. Indeed, it is difficult to see what weight could be given to these submissions.
Specifically, in relation to the applicant's risks as a "failed asylum seeker" if he returned to Jordan, I am unable to discern in the contents of paragraphs 5, 7 and 8 of the written submission any material of apparent relevance, other than a general concern about human rights conditions in Jordan. Paragraph 6 does seem to invite the Tribunal to consider a history of the person referred to, assuming that person was "returned to Jordan". However, the reference was so obscure, that I do not think that it would be open to a Tribunal to give it any significance in the form presented. I certainly do not consider that in the face of paragraph 6 of the submission it was not open to the Tribunal as a matter of law to conclude that "there is no independent evidence before me suggesting that failed asylum seekers face persecution in Jordan".
Moreover, this statement of the Tribunal was accompanied by an alternative finding by the Tribunal, explaining why it did not consider that the applicant would have a well founded fear of persecution for that reason if he returned to Jordan. I do not consider the jurisdictional error as contended under ground 3 has been made out.
For the above reasons, I do not accept any of the contended jurisdictional errors. I find that the Tribunal's decision was a privative clause decision for which relief is barred by s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 4 August 2006
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