Applicant X v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-10-23|Before: Carr J

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 16 May 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who claims to be a stateless Palestinian whose country of birth and habitual residence is Kuwait, arrived in Australia on 18 December 2000. On 9 January 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 27 February 2001 a delegate of the respondent refused to grant a protection visa and on 28 February 2001 the applicant applied for review of that decision.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · He was born in Kuwait of Palestinian parents in 1976. His parents were born in Palestine and went to Kuwait as refugees at the end of the war between Palestine and Israel in the 1960s. · His mother lives in Kuwait - he does not know where. Before the Gulf war she was assisted by the government of Kuwait. After the Gulf war, the government withdrew all assistance and she became reliant on her brother who also lives in Kuwait. His father went to Iraq in 1978 and, since 1980, his whereabouts are unknown. He was brought up by his mother. His uncle in Kuwait helped the family financially. They also received financial assistance from the Al-Zakah Bank which received donations from people who donated 10% of their earnings to be distributed by the bank to those in need. · He and his family were denied Kuwaiti citizenship and were prevented from owning property. The Kuwait authorities treated Palestinians badly because among other things, some Palestinians supported the Iraqi invasion of Kuwait. · He worked as a computer draftsman in Kuwait. He attended English language classes and computer classes. · In mid November 1998, he complained to his employer that he was never paid on time, whereas other employees were paid on time, and requested his salary. When an argument ensued, the employer insulted him and all Palestinians in general. His employer accused him of co-operating with the Iraqis and helping them during the Kuwait-Iraq war. He again requested that his salary be paid to him. At this his employer attempted to assault him and was only prevented from assaulting him because the other people in the office intervened. · He then went to a friend's house and stayed there for about three hours. He then went to his maternal uncle's house. His uncle told him that his mother had phoned because two Kuwaiti men went to his house and asked about him. They assaulted his mother and searched his house. They told her that they had information that her son had been co-operating with the Iraqi army and that he had better hand himself in. · Even though he was 14 years old at the time of the Iraqi invasion of Kuwait, a 14 year old is capable of what he was suspected of i.e. relaying information to the Iraqis. · His cousin was accused of co-operating with the Iraqi army and was arrested in 1991. His cousin was imprisoned for 4 months and subjected to torture. His cousin had nothing to do with the Iraqi army and was innocent. A group of Palestinians did however support the Iraqi army and as a result of this all Palestinians were accused of supporting the Iraqis. · He decided to leave Kuwait as he felt that the authorities would find, arrest and torture him. His uncle helped him to escape. He applied for an exit visa to travel to Saudi Arabia on a pilgrimage for 20 days. His uncle took his Palestinian travel documents to the travel agent who was a friend and the travel agent took care of everything. He left Kuwait on 22 December 1998. At the time he thought that it would be best for him to go to Palestine. · He went to Jordan in January 1999 and lived there illegally till August 2000. He thought he could live in Jordan until he left for Palestine. He had thought of appealing to the UN for help but was advised not to do so. His stay in Jordan was temporary and he departed Jordan on a fake Iraqi passport. · He is conscious that he has a serious charge laid against him. If he returns to Kuwait he will be arrested, imprisoned and tortured. 3 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS

GROUNDS OF THE application 4 The applicant does not appear to have had legal assistance in drafting his application. The grounds of review as stated as follows: "1. The RRT said that I have no evidence supporting my problem. I will do my best to bring some witness for you. 2. The RRT suggested that my problem is not big and important enough to escape. But I have a big problem and I may be imprisoned for seven to fifteen years if I could prove that I am not spy. 3. The RRT suggested that I have all my rights in Kuwait but as a Palestinian lives in Kuwait, I cannot buy or have ownership for a house, land or any business and they start to treat us very badly after the Gulf war so I have no future there. 4. The RRT said that I had financial problems and I went to Jordan to solve this problem. First of all I can't live and work in Jordan and I submitted that to RRT, in my interview, but they misinterpreted it and I have no passport to travel with and even if I had it, I couldn't go out from Kuwait because I am wanted there. And economy of Kuwait is better than Jordan, and it is logic to work in Kuwait. 5. I request the Federal Court to mention that I can not go back to Kuwait for those reasons: (a) I am in danger there because they accused me for several matters. (b) Because I left Kuwait illegally. (c) Because my mother has left to Ghaze and I have no-one there in Kuwait."

My reasoning 5 The applicant was not legally represented at the hearing before me today. He made oral submissions to me which were, not surprisingly, of a factual nature and which related to the merits of the Tribunal's decision. In those circumstances I have scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error. 6 In the first part of its reasons the Tribunal set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited in its reasons. The basis for the Tribunal's decision was simply that it did not believe the applicant. This can be seen, for example, in the third, eighth, ninth, twenty-third, twenty-sixth, twenty-seventh, twenty-ninth and thirtieth paragraphs of its reasons. 7 The Tribunal accepted that the applicant was born in Kuwait of Palestinian parents and had lived there until his departure in December 1998. The Tribunal did not believe the applicant's statement that the Kuwaiti authorities were pursuing him as a Palestinian who had collaborated with the enemy during the Gulf war. It gave its reasons for disbelieving the applicant. Some of those reasons were based upon his personal history of having been born in Kuwait, having access to school and other education and having found employment. Other information upon which the Tribunal relied was independent country information about treatment of Palestinians in Kuwait in the period of approximately a decade since the Gulf war. That included evidence that Palestinians who were not deported in the aftermath of the Iraqi invasion are regarded by the Kuwaiti authorities as "loyal and trusted". 8 The Tribunal found that the applicant had not left Kuwait out of fear of persecution and accordingly found that he left normally on his own passport. 9 It was, in my view, open to the Tribunal, on the evidence before it to make such a finding. One primary basis for that finding was its disbelief of the applicant's evidence about his departure from Kuwait (see the twenty-fourth paragraph of its reasons). The Tribunal found that the applicant had left Kuwait normally and legally. 10 In my view, the Tribunal's conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it. 11 In my opinion, the Tribunal made no reviewable error whether error of law or jurisdictional error.

Conclusion 12 As no jurisdictional error, error of law or any other reviewable error has been disclosed, the application will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr .

Solicitor for the Respondent: Australian Government Solicitor

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