Q v Minister for Immigration & Multicultural Affairs

Introduction 1 This is an application for review of a decision by the Refugee Review Tribunal affirming a decision by a delegate of the Minister for Immigration and Multicultural Affairs denying a protection visa to Q. Q came to Australia from Kuwait in 1999 on a forged passport, arriving in this country without any travel documentation. He claims that as a Shi'ite Muslim and as a stateless person in Kuwait he is liable to persecution and that he has been detained and tortured for those reasons in the past. His case involved consideration by the Tribunal of a substantial quantity of factual material. However his challenge to the Tribunal's decision, as appears from the reasons that follow, gives rise to no issue of legal principle but is rather concerned with the merits of that decision.

Factual Background 2 Q was born in Kuwait on 1 July 1957. He is however stateless, being neither a citizen of Kuwait nor of any other country. In February 1999 he purchased a Saudi passport, changed a photograph in it and booked a flight out of Kuwait. He left Kuwait for Dubai on 23 March 1999. He left Dubai for Australia on 27 March and arrived in this country on 29 March at Sydney International Airport. He destroyed his travel documentation before disembarking from his aircraft. He was interviewed by an immigration official at the airport with the help of an Arabic translator. The interview went from about 7.15am to 8.10am. At the end of that time he was placed in immigration detention and escorted to the Immigration Detention Centre at Villawood. 3 On 30 March 1999 Q lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused the visa on 14 June 1999 and on 23 June 1999 Q made application to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal heard the application on 2 December 1999 and on 21 March 2000 affirmed the decision not to grant a protection visa to him. On 6 April 2000 Q filed an application with the Perth Registry of the Federal Court seeking review of the Tribunal's decision. 4 A record of the initial interview with Q upon his arrival in Australia showed that he is married and has seven daughters and two sons and that his wife and children live at his last address in Kuwait. His mother, three sisters and two brothers also live in Kuwait. He began thinking of coming to Australia three to four years ago. He left Kuwait because there is no security there, he has no rights and none of his children could go to school. In Kuwait there was "only prison, hitting of people, no work, discrimination etc". Q told the interviewer that he used to be in the Kuwait Army and that he was discharged from the army in 1990 after which he had worked as a driver for about two years until the government took his licence away from him because he is a Bedoun, that is to say a stateless person living in Kuwait. The record of interview indicates that he told the interviewing officer he had been gaoled for eight days in 1993 for no reason other than for being a Bedoun. He had been released on bail because an influential person had helped him out. While in prison he had been beaten, insulted and sworn at. He had come to Australia to seek asylum and to have his human dignity preserved. If he were returned he would be put into prison because he left the country using a false passport and because the government wanted to get rid of Bedoun. 5 In a written statement prepared by a registered Migration Agent representing him on 18 April 1999, Q expanded on his reasons for leaving Kuwait. He had joined the Kuwaiti Army on 1 February 1975 and had been a non-commissioned officer. However following the Gulf war he was discharged because he was a Shi'ite Bedoun, that is to say a stateless person who is a Shi'ite Muslim. His discharge was backdated to the day of the Iraqi invasion. 6 His imprisonment in 1993 had occurred in March of that year. He was driving his car and was stopped at a checkpoint. He was asked for identification and when it was found he was a Bedoun he was taken to a police station. He was beaten up at the checkpoint by police for no stated reason. There was, he said, an assumption that all Bedouns had cooperated with Saddam Hussein during the war. He was not charged with any offence and beaten up every day. He said he had to pay money to be released. He remained at home as he was afraid to go out. When he went out to buy something he was always scared. He used to take back roads to avoid checkpoints. He lived on his life savings during this time. 7 Q then described an incident which had occurred in May 1995. Kuwaiti military intelligence had come to his home. They searched it and took every piece of paper that would identify his association with the army. He was handcuffed and taken to a military intelligence office. There he was beaten. There were ten men involved in the beating. He described it in the following terms: "I was on the floor on my back while one man stood on each of my upper arms in the biceps region. At the same time I was beaten on the feet with a cane soaked in salt water. During my beating a device was used to inflict severe pain on my legs. It was a heavy wooden roller with a rope attached. My legs were placed between the rope and the roller and two men twisted the roller so that it rolled up and down my shins. I was beaten on the feet while my feet were held in the air with this device. They wanted me to confess that I collaborated with the Iraqi forces during the war. They then forced me to walk along a long corridor. Four men beat me with canes as I passed them. This whole process of torture followed by beating continued for about three hours. I fainted with the pain. They poured cold water over me. Then they told me to take off all my clothes and they began beating me on the lower back with a heavy stick. They told me that was to stop me producing any more offspring. They ordered me to put my two hands on the table and with a stick the hit me on the fingers. It felt as if the fingers were breaking. This part of the torture took about one hour. I again fainted." The following day, according to Q, he was carried into a room with a tiled floor. His feet were swollen. A doctor and nurse came and without anaesthetic and using scissors cut off some skin from his feet. He stayed in the room for eight days. He says he was then taken to a military prison and placed in solitary confinement in a cell 1.5 metres x 2 metres, including a toilet. It was very hot with no fan or air conditioning. He said he was there for one month. He only had his underpants on the whole time. 8 Following his release from prison he said he was taken to the National Security Prison for ten days where he was again tortured but not as severely. He was again beaten on the feet. He was photographed and fingerprinted and then taken to the Talha Prison in Kuwait where he stayed for another month. In the end his family paid a bribe of 3,000 dinars (about $US10,000) to get him out of prison, 9 Since his 1995 detention and torture he had constantly been trying to find a way to get out of Kuwait. He had heard there were Kuwaiti or Saudi passports with visas to Australia available from their owners. They could be purchased through intermediaries. Ultimately he met somebody who sold him a Saudi passport for 1,500 Kuwaiti dinars which he paid out of savings he had accumulated while in the army. His wife also had some gold and whenever they needed something they sold it. That happened in February 1999. He said he did not acquire a passport earlier because he did not know how to get one. Moreover it was a serious matter because it is prohibited. Q feared that if he went back to his country he would be imprisoned and tortured because of his status as a Bedoun Shi'ite. There would be no protection available from the authorities because it would be the government itself that would be inflicting this on him.