APPEAL TO THIS COURT
15 The grounds specified in the notice of appeal to this Court are as follows:
1. The primary Judge erred in not recognising that the second respondent failed to properly interpret and apply s. 36 of the Migration Act 1958.
2. Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly interpret and apply s. 91R of the Migration Act 1958.
3. Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly interpret and apply the definition of refugee found in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
4. Further and/or in the alternative the primary Judge erred in not recognising the second respondent erred by applying the test in s. 91R(2) rather than the test articulated in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 or S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.
5. Further and/or in the alternative the primary Judge erred in not recognising that the second respondent asked the wrong the question in considering whether the harm the applicant would suffer was because he was a stateless person rather than because he was a Bidoon.
6. Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to appreciate the causal link between the applicant being stateless because he was a Bidoon and that because he was a stateless Bidoon he was persecuted. Hence the second respondent asked the wrong question being - was the applicant persecuted because he was stateless? Rather the second respondent ought to have asked the question -was the applicant persecuted, among other things, because he was stateless and was that situation of being stateless caused by being Bidoon. Alternatively was the applicant persecuted because he was a stateless Bidoon?
7. Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly take into account a relevant consideration, namely that the applicant was constructively dismissed from his most recent employment in Kuwait.
8. Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly apply the complementary protection provisions of s 36(2)(aa) (2A(e) of the Migration Act 1958.
The relief sought was much the same as that sought in the Circuit Court.
16 The grounds advanced in the appellant's written submissions and in oral argument did not reflect the grounds in the notice of appeal. The first ground addressed in the written submissions concerned the interpretation of ss 36 and 91R. At paras 8 and 9 of his written submissions the appellant submits:
8. The effect of ss 36(1) and (2) and 91R(1) is that a person is owed protection obligations if the person is a refugee within that definition in the Convention subject to the limitation found in s 91R(1). Section 91R(2) is not a limiting provision but merely an inclusive provision. It was obviously open to Parliament to make it an exhaustive definition but it chose not to.
9. As stated in the recent High Court decision of SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 296 ALR 409 (10 April 2013), the correct approach to determining eligibility for a protection visa is found in the reasons of the Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at 173 - 174 [32] - [33], per Keane J at 14].
The decisions in NAGV and NAGW are cited to demonstrate the proposition that the reference in s 36(2) to a non-citizen to whom Australia has protection obligations, is a reference to a refugee as defined in the Convention. Those cases say nothing about the effect of s 91R upon the way in which the Convention is to be applied pursuant to the Act. The appellant seems to imply that the decision in SZOQQ leads to the conclusion that s 36(2) is to be applied without regard to s 91R(1), presumably because the latter section has no effect upon the decision in Chan Yee v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. I reach that conclusion as to the appellant's meaning, having regard to the fact that he refers to the "seminal meaning of persecution" as set out in Chan, a case decided about 12 years before the enactment of s 91R. The appellant also refers to the decision in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. The High Court heard that case after the enactment of s 91R, but the relevant proceedings in the Refugee Review Tribunal occurred prior to its commencement. The section is not referred to in the reasons. It seems that it was not relevant to the case, probably because it was not in force at the relevant time.
17 The appellant also refers to the decision in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. He submits that in that case at [12], Gummow, Hayne and Crennan JJ refer to "the list in s 91R as 'examples'". In the context of his submissions, he seems to be submitting that their Honours meant that the examples in s 91R were examples of persecution or, possibly, serious harm. However their Honours clearly did not intend that meaning. Their Honours meant that s 91R (and s 91S) were examples of "provisions in the Act" which provided "further specification of some of the general terms used in the Convention definition of 'refugee'". In other words their Honours were saying that ss 91R and 91S were examples of sections of a particular kind, not that s 91R merely provided examples of conduct which might amount to persecution. It may well be true to say that s 91R(2) provides examples of serious harm, and that the list is non-exhaustive. However s 91R(1) clearly affects the meaning of the term "persecution" as used in the Convention, to the extent that it is to be used for the purposes of the Act. In the context of this misconstruction of ss 36 and 91R, the appellant asserts that the second respondent was distracted from her true function by the examples listed in s 91R(2). I see no substance in the submission that the second respondent applied the wrong definition of the term "refugee".
18 The appellant then submits that the second respondent found that Bidoon (including himself) had no citizenship rights. In fact, at para 78 of her reasons, the second respondent found that the appellant, as a documented Bidoon, had various rights, rejecting his claim to have no rights. The appellant challenges the second respondent's conclusion that his statelessness was not because of his race, religion, nationality, political opinion or membership of any particular social group. In that statement, the second respondent was not disposing of the appellant's claim to fear persecution for a Convention reason. Rather, she was explaining why he is not a Kuwaiti citizen. As previously observed, the second respondent went on to find that he was a member of a particular social group and to assess his claim on that basis. The relevant social group was stateless persons or Bidoon and/or documented Bidoon. There is absolutely no evidence of any definition of the word "Bidoon" other than that it is used to describe stateless persons. Although the appellant, at one stage, claimed that he was of Bidoon ethnicity, he had previously claimed Arab ethnicity. In the appellant's submissions in reply, it is submitted that there are three categories of Bidoon, one such category being Bedouin people. This submission is based upon an assertion made in the appellant's solicitors' submissions at AB 178 as follows:
Today's Bidun population originates from three different categories. First, there are those Bidun who claim citizenship under Kuwait's Nationality Law, but whose ancestors failed to apply or lacked necessary documentation at the time of Kuwait's independence. … Among this group are the descendants of nomadic clans which regularly traversed the borders of modern day gulf states but settled permanently in Kuwait prior to independence. This group of Bidun have never held the citizenship of any other country. … A second group is composed of former citizens of other Arab states (such as Iraq, Syria, and Jordan), and their descendants, who came to Kuwait in the 1960s and 70s, to work in Kuwait's army and police forces. The Kuwaiti government preferred to register them as Bidun rather than to reveal this politically- sensitive recruitment policy. … Some of these migrants settled in Kuwait with their families and never left. … The third category of Bidun is composed of individuals born to Kuwaiti mothers and Bidun fathers.
I should add that in an earlier submission at AB 136, the appellant's solicitors had submitted:
The Arabic word "bidoon," meaning "without" and short for "bidoon jinsiya" (without citizenship), refers to the stateless residents of Kuwait. The Kuwaiti Bidoons are part of a large Bidoon demographic that resides in Saudi Arabia and the United Arab Emirates.
In response to para 55 of the respondent's submissions, the appellant seems to accept that he is Bidoon because he is stateless, and stateless because his father was not a Kuwaiti citizen. However he then asserts that he is in the first category identified above because his father was born in Kuwait in 1946. Hence he cannot be in the second category. It is said that he cannot be in the third category because there is no evidence that his mother had an official Kuwaiti birth certificate. It may be that this submission in reply is an attempt to relate the appellant's statelessness to his allegedly Bedouin antecedents. It is not clear from the evidence whether the term "Bedouin" describes a particular social group of persons, probably having Arab ethnicity, or a separate ethnic group. The question seems not to have been previously raised. As far as I can see, there has been no suggestion that the appellant is Bedouin, or that such application was the reason for any discrimination. If there were any such discrimination it would arise from the fact that his father had not been registered in 1959, as discussed at AB 178. As far as I can see, the reason for the appellant's status as Bidoon does not matter for present purposes. The point is that he is stateless, and such discrimination as he suffers is attributable to his statelessness. Further, although the reference to three categories of Bidoon may appear to provide an exhaustive definition of the term, one wonders whether that was necessarily the intention. It may be that the three categories include most, but not all of those who are so described.
19 That the case has been conducted, to this point, on the basis of the appellant's statelessness appears from the appellant's submissions at paras 17 and 19 as follows:
17. The second respondent's conclusion at paragraph 67 (page 204) is problematic where he/she states:
I find [the appellant's] statelessness is not for reason of his race, religion, nationality, political opinion or membership of any particular social group.
18. He is stateless because he is a Bidoon, yet the Federal Circuit Court judge concluded (at paragraph 63 page 236):
It is the circumstances of being stateless that qualifies one as being Bidoon, not the other way round.
19. The conclusion of both the second respondent and the Federal Circuit Judge is circular and illogical.
20 The second respondent concluded that the appellant would suffer persecution by virtue of his being a member of a social group, but that such persecution would not involve serious harm. The question on appeal is whether, given the findings of fact made by the second respondent, that conclusion was open. In the following extracts from the second respondent's reasons, she disposed of the appellant's claims:
At para 66:
I find [the appellant's] lack of Kuwaiti citizenship, and thus his Statelessness, is because he was born to a non Kuwaiti citizen father.
At para 67:
I find [the appellant's] statelessness is not for reasons of his race, religion, nationality, political opinion or membership of any particular social groups. From this it follows that his lack of Kuwaiti citizenship does not come within the scope of the Refugee Convention, and cannot be considered persecution in the Convention sense.
At para 68:
Whether a posited group is a "particular social group" in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the society. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person's membership of the particular social group.
At para 69:
I find [the appellant] is a member of this particular social group Bidoons and that he is recognisable by others as belonging to this particular social group.
At para 70:
I find [the appellant] is a member of this particular social group documented Bidoons and that he is recognisable by others as belonging to this particular social group.
At para 71:
As I accept [the appellant's] evidence of his Kuwaiti birth record issued in 1992, his oral evidence of having been first issued a security card by ECIR in approximately 1997, and having regard to my findings that [the appellant] is a member of the particular social group documented Bidoons and would be so recognised by others, I emphatically reject the advisor's proposition that [the appellant] is (or may even be considered) an undocumented individual from Kuwait. In rejecting this proposition I note [the appellant's] evidence that renewal of his card was refused by an Officer of the Committee in 2008. However, the independent information is that all Bidoons in Kuwait are entitled to receive a security card (DFAT, 2009), and [the appellant's] documentary evidence of his 1979 birth in Kuwait was issued by the Central Civil Registry in 1992, which is eight years before June 2000 when the government set a deadline for persons to come forward so as to be documented (UK Home Office, 2012). In rejecting the advisor's proposition, it follows, and for the same reasons, I do not accept [the appellant's] claim (made in the advisor's submission forwarded by email on 22 August 2012) that he is a person with no identity in Kuwait.
At para 72:
As I accept [the appellant's] evidence of his ongoing employment with various employers from 1993 until 2011 … I find any past discrimination he may have experienced in employment matters has not threatened his capacity to subsist. I accept the independent information from Refugees International (2011) that in April 2011 a government decree was announced that registered Bidoon would be granted facilities including access to public sector employment. Based on the information from Refugees International (2011) and my findings that [the appellant] has undertaken paid employment with various employers since 1993, and that as he is a documented Bidoon (due to the ECIR having a record of his presence in Kuwait and from which he was issued a security card) he is able to obtain from the Ministry of Social Affairs and Labour a work permit so he can be hired in the public or private sectors, I find [the appellant] has not been in the past denied the capacity to earn a livelihood of any kind such as to threaten his capacity to subsist as set out in subparagraph 91R(2)(f) of the Act.
At para 73:
I find [the appellant] has not been in the past denied access to basic services (such as medical care) threatening his capacity to subsist as set out in subparagraph 91R(2)(e) of the Act.
At para 74:
Having considered all of the claimant's evidence in relation to employment and access to medical care, I am not satisfied that there is a real chance now or in the reasonably foreseeable future that he will be denied the capacity to earn a livelihood of any kind such as to threaten his capacity to subsist, or access to basic services (such as medical care) threatening his capacity to subsist, or that he will experience significant economic hardship threatening his capacity to subsist, or suffer any other type of serious harm contemplated by s.91R of the Act.
At para 75:
On the evidence before me I do not accept [the appellant] has ever been denied a driver's licence, and I find that he (as a documented Bidoon) is and will continue to be entitled to obtain a driver's licence in Kuwait.
At para 76:
On the information before me I find [the appellant] has no political or criminal profile with the Kuwaiti authorities.
At para 77:
I find the totality of [the appellant's] treatment by his former employers' friends, including their harassment and physical ill-treatment of him, combined with their stated disapproval of him to this former employer which led to his voluntary cessation of employment, did not involve serious harm to him as set out in subparagraph 91R(l)(b) of the Act. I accept [the appellant's] entry interview evidence of employment since 1993, in particular his employment with the family in a domestic capacity since 2004/2005 and note he has not made any other claims about being abused in the course of his employment. For these reasons, and as his work with the former employer whose friends/social associates maltreated him is not ongoing but has been voluntarily terminated by [the appellant], I find this circumstance (of conflict with his past employer's guests) is an isolated, one-off occurrence. I find there is not a real chance now or in the reasonably foreseeable future [the appellant] will face any circumstances or harm of a similar nature.
At para 78:
I accept the general proposition that discrimination, that is, differential treatment of persons in any one society, can involve serious harm. However, having regard to [the appellant's] claims and circumstances cumulatively as reasoned in the proceeding paragraphs, I do not accept in his particular circumstances that as a member of the particular social groups of Bidoons and documented Bidoons, any discrimination he has experienced in the past, or will experience now or in the reasonably foreseeable future, involve serious harm as set out in subparagraph 91R(1)(b) of the Act.
At para 79:
There being no evidence before me of Kuwaiti laws prohibiting the making of asylum claims and/or imposing penalties upon persons whose exit from Kuwait was on a false passport, I do not accept [the appellant's] claim that he will be arrested on return on account of his having used a false passport to leave Kuwait and his having unsuccessfully sought asylum during his absence.
At para 80:
For these reasons I do not accept [the appellant's] claims that in relation to his attendance at the March 2011 protest, his use of a false passport to depart Kuwait and his claim for asylum during his absence, he will be imprisoned and face torture and death on his return to Kuwait. I find there is not a real chance now or in the reasonably foreseeable future [the appellant] will experience any adverse consequences by the authorities on account of these matters.
At para 81:
For these reasons I find if [the appellant] is detained at Talha Deportation Centre upon his arrival at Kuwait airport in the reasonably foreseeable future, there is not a real chance any treatment he receives or conditions he encounters will include serious harm, including any of the non-exhaustive listed serious harms in subsection 91R(2) of the Act, as set out in subparagraph 91R(l)(b) of the Act. I find there is not a real chance now or in the reasonably foreseeable future that if [the appellant] is detained at Talha Deportation Centre because he is denied re-entry (due to his being a non-citizen) and his being Stateless means there is no country to which he can be deported, his detainment will encompass any type of serious harm as contemplated by section 91R of the Act.
At para 82:
I have found neither the individual or the cumulative impact of the restrictions [the appellant] experiences as a stateless person who is a Bidoon and/or documented Bidoon amount to serious harm, and I have found his statelessness does not come within the scope of the Refugee Convention, nor does any possible denial of his re-entry by the authorities constitute persecution. I have [concluded] there is not a real chance now or in the reasonably foreseeable future [the appellant] will experience any adverse consequences by the authorities on account of his attendance at the March 2011 protest, his use of a false passport to depart Kuwait and his claim for asylum during his absence. Consideration has been given to the information contained in the correspondence from M. Stroscio Nicolosi from Melaleuca Refugee Centre dated 18 September 2012, and I accept [the appellant] is genuinely worried about his prospects upon return to Kuwait. However, on the available information I do not accept [the appellant's] fear of Refugee Convention based persecution, now or in the reasonably foreseeable future, is well founded.
At para 83:
Overall, I find [the appellant's] does not face a real chance of Convention related persecution in Kuwait., even cumulatively, now or in the reasonably foreseeable future.
21 At paras 22 - 40 of his outline of argument the appellant makes a number of general assertions concerning the second respondent's conclusions and reasoning. First, at paras 22 and 23, he disputes the alleged implication that recognition as an illegal resident is a right. The second respondent certainly concluded that as a documented Bidoon, the appellant had access to a wider range of government services than would the undocumented Bidoon. I doubt very much whether the second respondent intended to imply anything more. She proceeded upon the basis that in this case, denial of citizenship was not itself persecution, a proposition which I consider to be plainly correct. In other cases the denial of citizenship by reason of nationality, race, religion or membership of a social group may constitute persecution. However that cannot be the case where the relevant social group is identified by reference to the fact that its members are stateless.
22 At para 24 the appellant submits that if he attends a protest meeting concerning the treatment of the Bidoon, there is a real chance that he will be met with a violent response from the authorities. The second respondent recognized that the appellant had attended one protest in March 2011, and that such meeting may have been the meeting at which, according to independent information, security forces used significant force to disperse it and detained numerous persons. However the second respondent appears to have understood the appellant's claim to address his subsequent treatment by friends of his employer, rather than difficulties which might be encountered in participation in future protests. There seems to have been no suggestion that he desired to participate in any future protest, or that he feared retaliation if he did so. There was no evidence of continuing protests in which he might wish to participate.
23 At paras 25 to 33 of his submissions, the appellant addresses the conduct of his employer's friends, which led to his resignation and eventual departure from Kuwait. The evidence suggests that shortly after the March 2011 protest, there was a social function at the appellant's employer's home. The topic of protests arose in the course of discussion. The friends expressed discriminatory views about the appellant and stabbed him in the foot. It seems that until October 2011 nothing further happened. At that time his employer's friends again talked to his employer. Subsequently, the employer said either that he did not want the appellant to continue working for him, or that it was in the appellant's best interests that he not do so. Whichever version be correct, the second respondent accepted that the appellant resigned and was not actually dismissed. Assuming that he resigned as a result of the indication given by his employer, whatever form that may have taken, the second respondent appears to have concluded that there was no more than a fanciful chance that any future action would be taken against the appellant by virtue of his attendance at the protest in March 2011.
24 At paras 26 and 27 of his submissions the appellant challenges the second respondent's conclusion that whatever actions were taken by his employer's friends, they were undertaken as private persons and not as officials performing official functions. Given that the conduct in question occurred whilst they were at social gatherings, that conclusion was a reasonable inference. The second respondent had previously observed that none of these people had, between March and October 2011, used their official positions to take any formal action against the appellant. The appellant then questions whether one can sensibly distinguish between actions taken as an officer of the state and actions taken in a private capacity. This is nothing more than speculation.
25 At paras 28, 29, 30, 31 and 32 the appellant asserts that "persecution does not as (sic) cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action.". He refers to the following passage in the second respondent's reasons:
I do not accept that there is anything more than a fanciful chance now or in the reasonably foreseeable future the Kuwaiti authorities will take any adverse interest in [the appellant] in respect of his attendance at one protest in March 2011, even if the authorities are informed at a future point in time (by [the appellant] or others) of his attendance.
The appellant submits that the second respondent could only have reached that conclusion if she assumed that the appellant would take "evasive" action by avoiding protests and/or by avoiding employment with any person who might have links to the government. The cited extract from the second respondent's reasons appear at the top of page 208. However the sentence commences on the preceding page in which she provided the context for the cited passage. Clearly, the second respondent was addressing the inferences available from the appellant's evidence concerning his attendance at the protest and subsequent events. Thus the second respondent was not assuming any conduct on the part of the appellant. Rather, she was holding that the events of March 2011 and subsequent, related events did not lead her to conclude that the appellant would be exposed to the risk of further adverse attention as a result of his attendance at the March 2011 protest.
26 It may be that in those paragraphs of his submission, the appellant was seeking to make a broader point concerning his possible attendance at future protests and/or future employment. As I have previously indicated the case seems not to have been conducted upon the basis that he was likely to attend future protests and feared persecution as a result of any such attendance. As far as I can see, there is no evidence of continuing protests. As to the question of any future employment by a person who may have connections to government, there seems to be no basis for assuming that such a person would take a view similar to that taken by his former employer's friends. There is also no reason to assume that all, or even a substantial number of potential employers will have government connections, or that other government officers or employees would necessarily want to interfere in other people's household matters. Again, this submission is little more than speculation, based upon one incident which the second respondent considered to be an isolated event.
27 At paras 34 and 35 the appellant submits that the second respondent failed to consider whether there was a real chance that if he returned to Kuwait, he would be detained indefinitely, and whether such detention would amount to serious harm. The second respondent considered that if he were refused re-entry, it would be because, as a non-citizen, he had no right of entry. Relying upon the decision in Diatlov (supra) the second respondent concluded that neither his statelessness nor his lack of right of entry amounted to persecution for a Convention reason. Further, at para 87 the second respondent found that if he were denied entry, any resulting detention would be limited to the period necessary for the issue of appropriate documentation. Further, he would be detained at an identified deportation centre where there was no real chance that he would be subjected to treatment or conditions which might constitute serious harm.
28 At para 36 of his submissions the appellant submits that stateless persons in Kuwait do not enjoy the rights and benefits available to Kuwaiti citizens, including the availability of marriage and death certificates, free access to state-sponsored schools and healthcare. The second respondent dealt with all of these matters, finding that, particularly in the appellant's case, any such limitations did not constitute serious harm.
29 At para 37 the appellant summarizes the persecution which he claims to fear. I have dealt with all of these matters. In paras 38 and 39, he asserts error without adding further to his earlier submissions. At para 40 the appellant alleges that the second respondent failed to "pick up that the appellant was constructively dismissed". In my view, to speak of constructive dismissal is merely to describe a situation in which somebody resigns from his or her employment because of the conduct of his or her employer. The second respondent may not have used the expression "constructive dismissal", but she clearly considered the relevant factual situation.
30 At para 41 the appellant submits that he relies on his earlier submissions as demonstrating that the second respondent also misconstrued the term "inhuman treatment" for the purposes of ss 36(2)(aa) and 36(2A) of the Act. The second respondent dealt with the so-called complementary protection provisions at paras 84 to 91 of her reasons, referring extensively to her previous findings and applying ss 36(2)(aa) and 36(2A). She was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Kuwait, there was a real risk that he would suffer significant harm. There is no specific attack upon that finding.
31 At ts 46 - 49, counsel for the appellant and I entered into a somewhat lengthy debate about questions of fact and questions of law. The debate seems to have been initiated by counsel's submission that the second respondent, having dealt with the various aspects of the appellant's case, should have considered whether, notwithstanding her views as to individual matters, on an overall view of the case, she should have inferred a well-founded fear of serious or significant harm. Such a submission is easy to make and has a superficial appeal. It seems to reflect the way in which courts have dealt with other decision-making processes in which an overall assessment of identified factors is required. However different forms of discriminatory or prejudicial conduct will not necessarily have a cumulative effect. Thus, for example, the effects of mild discrimination in employment cannot necessarily be combined with the effects of mild limitations on political expression to produce a combined result which can be recognized as serious or significant harm. There may be circumstances in which discrete actions have a cumulative effect which can be described as "harm" to the relevant person. In each case the decision-maker must identify potential areas of harm and then identify the reason for causing such harm and its seriousness. In my view the second respondent performed that function. Indeed, she said as much at para 83 of her reasons. I see no basis for this criticism.