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[2000] FCA 761
Federal Court of Australia
2000-06-09
French J
Original judgment source is linked above.
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.
The Tribunal's Reasoning 10 The material put before the Tribunal by and on behalf of Q included country information in the form of a Human Rights Watch Report, a US State Department Country Report for 1995 and Amnesty International Country Reports for 1997, 1998 and 1999. Following the hearing the Tribunal received what it described as "further independent evidence". That material included six country information reports prepared by the Country Information Service (CIS) and included in CISNET which is evidently the network of CIS country information data bases available to all refugee/protection visa decision makers in the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal Copies of this material were sent to Q and his Immigration Agent by letters dated 8 September, 6 October and 1 November 1999. Q was invited to comment on the material. In particular in the letter of 1 November 1999 the Tribunal said, inter alia: "You claimed to have been detained in Talha prison in 1995. The advice from UNHCR is that no more than twenty Bedouns were detained in Talha, the others were illegal entrants who were citizens of neighbouring or other countries. I also note that the record of interview held between you and an officer of the department at the airport does not have any mention of your detention in Talha prison. Since that detention was the most serious and most recent claim of hardship and mistreatment in Kuwait I am of the opinion that you would not have failed to mentioned it in your airport interview if it genuinely occurred." The letter went on to refer to another aspect of the advice which was to the effect that all genuine Bedouns have the opportunity to regularise their status and that UNHCR is present in the country. A person who is not a genuine Bedoun could seek the assistance of UNHCR to obtain a passport from the country of origin and to obtain a ten year residency permit to remain in Kuwait. The letter of 1 November quoted the advice thus: "In essence the mechanisms are in place for Bedouns or illegal residents in Kuwaitis (sic) to normalise their status. As previously reported, UNHCR is actively involved in this process by assisting illegal Kuwaiti residents in obtaining passports from their countries of origin, thereby making them eligible to 10 residency permits." (sic) 11 In a written submission in response, received by the Tribunal on 8 November 1999, Q's lawyers said that they were instructed that he had told the immigration officer at Sydney Airport that he had been in prison for eight days in 1993 and for three months in 1995 and that if the officer did not record these facts it was not his fault. As to the issue of identification cards to Bedouns, this was said to be a government ploy to give the impression to the international community that Bedouns were being treated fairly. In fact, it was said, these ID cards were not renewed after the first year. Q claimed through his representatives that the information obtained by the Tribunal concerning the possibility of Bedouns obtaining permanent residence in Kuwait after ten years of residence there was simply not correct. In any event what had been written in the Country Report about Bedouns was not applicable to him as he had been accused of being a co-operator with the Iraqi military forces upon their invasion of Kuwait. Moreover, he fled the country using forged documents. As to the position of the UNHCR he claimed that he did in fact go to the office of the UNHCR but was repeatedly told they could not do anything for him. He said he went there at least twenty times. The letter from Q's lawyers attached two handwritten submissions said to have been prepared by him. These I note are well expressed and, if prepared by him, are somewhat at odds with Q's statement to the Court about his inability to speak English. 12 The Tribunal characterised Q's claim as one based on fear of persecution by reason of his status as a Bedoun. The Tribunal said it had considered his claims including the two alleged periods of detention, his last four years in Kuwait and the current situation in Kuwait to determine whether or not he faced a risk of harm amounting to persecution for a convention reason. 13 In its consideration of Q's claims and their credibility, the Tribunal first referred to the matter of his religion as he claimed to have suffered problems as early as the 1980's for being a Shi'ite Muslim. The Tribunal noted that Shias make up forty per cent of the Kuwaiti population and that the Kuwaiti constitution recognises the right to freedom of religion which, according to the US State Department Country Reports on Human Rights Practices 1999, exists also in practice. Q had claimed to have been called before military authorities on many occasions between 1984 and 1985. In his submission of 31 August 1999 he said he had been in prison many times and had suffered torture. When he was asked to be more specific at the Tribunal hearing he said he had been called twice and had been questioned and cautioned. He was held for an hour on the first occasion and for two hours on the second occasion. Questioned on the inconsistency between this statement and his submission he said he considered two times to be "many". The Tribunal expressed doubts in relation to the credibility of his assertion of persecution based upon his religion as he had clearly exaggerated and misrepresented the situation in his written submission. The Tribunal was satisfied that being questioned on two occasions for periods of one and two hours did not amount to persecution and found, on the basis of the US State Department Country Reports that Q did not face persecution for reason of his religion in Kuwait. 14 Turning to Q's status as a Bedoun, the Tribunal accepted the claim that he was stateless. It also found that he and his family had lived in Kuwait for many years, that he was educated and married there but not recognised as being Kuwaiti. It accepted that he had lived his entire life in Kuwait without recognition as a citizen and that Kuwait is his country of former habitual residence. 15 In connection with the arrest in 1993, the Tribunal accepted that Q was arrested as he claimed as this was consistent with accounts in the Human Rights Watch Report entitled "The Bedouns of Kuwait". The reason for his arrest was that he was not a citizen of Kuwait and not entitled to hold a Kuwaiti driver's licence. 16 In relation to Q's claim that he was arrested in 1995, the Tribunal noted that although his allegations in this regard were more serious and asserted a considerably longer period of detention than that in 1993, there was no mention of it in his record of interview when he first arrived in Australia. The Tribunal rejected his assertion that the immigration officer who first interviewed him had failed to record any of the details he had provided at the interview. It found that he did not provide those details. The nature and details he claimed to have provided to that officer were such that the Tribunal would not accept an officer who had taken all other details and accurately recorded them would have overlooked that matter. In any event the Tribunal found the claim to be implausible. Its reasons for so finding were expressed thus: "He claimed that the authorities came to his home without any incident to provoke that arrest. He claimed that he was accused of being an Iraqi supporter and believed someone had reported him. However, he also claimed that he was released as a result of a bribe which his family paid and, then returned to his home where he remained for the next four years. Given the nature of the Iraqi invasion and the seriousness with which Iraqi collaborators were treated I find it implausible that he would be released and be able to remain at his address without further incident for the next four years if, as he claims, the authorities believed and continued to believe he was an Iraqi collaborator." Referring to Q's contention that hundreds of Bedouns were in the Talha prison, the Tribunal preferred the advice from the UNHCR that no more than twenty stateless Bedouns had been held there and that they were released through UNHCR intervention. It also accepted advice from the US State Department Country Reports on Human Rights Practices that the International Red Cross had access to all prisoners. This together with the advice that the UNHCR monitored the situation in Talha led the Tribunal to find that Q was not held in Talha since one or the other would have become aware of this detention. The Tribunal found that Q had fabricated the account of his detention in 1995 for the purpose of enhancing his case. It went on: "In any event, even if I accept the Applicant's claims as he presented them, he suffered no further problems in the following four years from that claimed incident and his departure. As stated above, he was in the same address for that whole period and, since that address would have been known to the authorities either through that claimed detention I find that the authorities had no adverse interest in the Applicant throughout that period and therefore there is no evidence to suggest that he faces any chance of prospective harm for the reasons he claimed he was detained in 1995." 17 The Tribunal summarised its findings of fact thus: "1. The Applicant is non-Kuwaiti. 2. He has lived in Kuwait from his birth. 3. He was employed in the military until the Iraqi invasion of August 1990. 4. In 1991 he was dismissed from the military. 5. In 1993 his driver's license was taken from him. 6. The situation regarding prisoners in Kuwait is that ICRC has access to the country's prisons. 7. In regard to deportations of foreign nationals or suspected nationals in Kuwait UNHCR is able to facilitate appropriate documentation and repatriation. 8. No stateless "Bedouns" are deported from Kuwait. 9. In recent years the Kuwaiti government has established a procedure for registration for recognition of status. Those recognised as having claims against Kuwait will be recognised as Kuwaiti citizens. Those who are foreign nationals will be granted residency status. 10. Where a person outside of Kuwait satisfies the Kuwaiti government of genuine claims to Kuwaiti nationality they will be recognised and UNHCR is prepared to assist in return of those people." 18 The Tribunal went on to discuss the position of Bedouns in Kuwait generally. It found the term to have been loosely used in respect of two groups of people. The first comprise people who have lived in Kuwait for generations who do not have nationality rights in other states and have not registered as Kuwaiti citizens. The second comprises those who have entered Kuwait from other states and have hidden their actual citizenship to benefit from the services available to Kuwaiti citizens and the employment situation or to hide their nationality in order to avoid returning to neighbouring countries where conditions are inferior to those in Kuwait. Given this dichotomy the Tribunal found it difficult to regard the entire group as a particular social group for the purposes of the Convention since one subgroup is genuinely stateless and the other group comprise persons of some other nationality. The Tribunal accepted however that those people who, like recognised Kuwaiti citizens, were living and had their forebears in the State prior to its establishment and, who would have qualified for Kuwaiti nationality but for their failure to register, do constitute a particular social group. A Human Rights Watch Report entitled "The Bedoun of Kuwait" included a claim that actions taken against Bedoun are human rights abuses against a group of people who in all respects are Kuwaitis but who have not registered or regularised their status as such. The Tribunal accepted that the harm detailed in that Report was denial of employment, education and health services and detention subject to deportation. Such deprivation, if it were for a Convention reason, could be regarded as serious and detrimental. The Tribunal went on: "However, the information in the reports before the Tribunal and provided to the Applicant following the Tribunal hearing are such that I find, under the monitoring of such international agencies as the UNHCR and the ICRC that disadvantages experienced by genuine claimants to Kuwaiti nationality are not ongoing and therefore do not have a prospective element to them since there is no deportation and interim measures are in place for genuine Bedouns to register for recognition and for eligible aliens to be granted temporary residence." The Tribunal was satisfied that, in its response to people of Bedoun status, Kuwait's motivation was that of a state establishing who are aliens and who are those people to whom it has obligations and responsibilities. It was not motivated by any desire to persecute any group or class of people for a Convention reason. If the bureaucratic procedures were slow this did not represent an act of persecution for a Convention reason. 19 The Tribunal rejected Q's claim that he would face penalties for fraudulent use of a passport and illegal departure and that his penalty would be greater than that of a Kuwaiti citizen. He had provided no independent evidence in that regard nor had the Tribunal been able to find any. It considered that claim to be speculative and without any objective or factual basis. The Tribunal said: "Further, since the ICRC has access to and monitors all prisons and UNHCR maintains a presence and has monitored and assisted in the Bedoun situation. (sic) I am of the opinion that any such abuse would have been noted and reported. Since that has not occurred I am not satisfied that this claim is anything other than fanciful speculation. If, however, the Applicant faced the same penalty as a Kuwaiti citizen for illegal departure and use of a fraudulent passport this could only be regarded as the consequence of an application of a law of general application and would not bring the Applicant's claims within the ambit of the Convention." The Tribunal also rejected the contention that Kuwait refuses entry to legitimate Kuwaiti citizens or those with rights to return. 20 In conclusion the Tribunal was not satisfied that Q was a person to whom Australia had protection obligations under the Refugees Convention. It affirmed the decision not to grant a protection visa.
The Grounds of Application 21 The grounds of the application were in the common form used by many applicants in the Port Hedland Detention Centre. They are: "(a) The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. (b) The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it."
Error of Law 22 It was pointed out to Q at a directions hearing and again at the hearing itself, that the power of the court to interfere with the decision of the Refugee Review Tribunal is limited by the Migration Act 1958 (Cth) in effect to errors of law. The Tribunal's reasons for decision in this case disclose that it correctly identified the relevant legal principles that it was obliged to apply under the Migration Act and the Refugee Convention. It undertook a lengthy and careful analysis of the factual situation as advanced by and on behalf of Q and as it appeared from the other country information which it obtained and which was made available to him for comment. In the end, the Tribunal's determination turns on the assessment of the evidence and its findings, adverse to Q, that he was not detained and imprisoned as asserted by him in 1995 and that he would not face any real prospect of persecution for a Convention reason if returned to Kuwait. Those conclusions were plainly open to the Tribunal on the evidence before it. 23 Q, speaking through an interpreter, made the points he wanted to make in the review hearing before this Court. Those points went entirely to the merits of the Tribunal's decision. They did not identify any error of law. 24 Q is not a lawyer and did not, on the review application to this Court, have the benefit of legal advice. I have considered whether or not the case is one in which the interests of justice would be served by referring him to the pro bono panel for advice. In my opinion the case turns entirely on the facts. In the circumstances there is no basis for such a referral. I am satisfied that the first ground of the application cannot be made out. The second ground is not one for which s 476 of the Migration Act provides. Even if it were available as a ground of review, it could not be made out in this case having regard to the careful and comprehensive analysis of the evidence by the Tribunal. The application will be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Associate: Dated: 9 June 2000 The Applicant appeared in person
Solicitor for the Respondent: Australian Government Solicitor
Q
Minister for Immigration & Multicultural Affairs