Shamri v Minister for Immigration and Multicultural Affairs [2000] FCA 592

FEDERAL COURT OF AUSTRALIA

Shamri v Minister for Immigration & Multicultural Affairs [2000] FCA 592

IMMIGRATION – no question of principle

NEDA ZAPEN SAMIR AL SHAMRI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO. N 165 OF 2000 JUDGE: BEAUMONT J DATE: 26 APRIL 2000 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 165 OF 2000

BETWEEN: NEDA ZAPEN SAMIR AL SHAMRI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 26 APRIL 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 165 OF 2000

BETWEEN: NEDA ZAPEN SAMIR AL SHAMRI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 26 APRIL 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J: 1 By his application for an order of review, the applicant seeks a review of the decision of the Refugee Review Tribunal ("the Tribunal") dated 21 February 2000 affirming the decision of the Minister's delegate refusing to grant the applicant a protection visa. The applicant's application is dated 29 February 2000. The applicant, who at all times has been unrepresented, stated in his application for an order of review that details of the grounds of the application would be sent at a later date. No such detail or indeed no such grounds had been provided. However, the issues that appear to arise in the application have been outlined in the respondent's submissions dated 20 April 2000 which are marked "1" for identification. 2 The applicant, who is a Bedoun from Kuwait, arrived unlawfully in Australia on 7 November 1999. On 8 November 1999 he lodged an application for a protection visa which, as noted, was refused. 3 In its reasons, the Tribunal (at 70 of the record) referred to independent country information to the effect that Kuwait is a class-minded society divided into super, first and second class with the Bedouns the third class, not considered as Kuwaiti citizens. The ruling Al Sabah family is the super class. The first class Kuwaitis are those who are descended directly from people who had Kuwaiti nationality by 1920. The second class Kuwaitis are those given Kuwaiti nationality after 1920. Their number is small, having been reduced after the 1991 Gulf War. Most of them became Kuwaiti after the mid 1950s. 4 The Bedouns, or the "third class", are people who claim to be Kuwaitis but have no nationality. This stateless and harshly treated segment consists mainly of people from southern Iraq and from the Kuwaiti-Saudi Neutral Zone. According to a recent UNHCR report, Kuwait's current population of 1.58 million is comprised of 42 per cent native population, 50 per cent expatriates and 8 per cent, i.e. about 126,000, Bedouns. 5 In its findings and reasons the Tribunal accepted that the applicant is a Kuwaiti Bedoun and that because he has not regularised his status in Kuwait he is therefore stateless. The Tribunal further accepted that Kuwait is a country of former habitual residence of the applicant. The Tribunal further accepted that the applicant was born in Kuwait, went to school and lived there for approximately twenty years. The Tribunal found that the applicant's father was born in Kuwait and that the applicant has relatives in Kuwait who supported him and his family financially between 1992 and 1999 when the applicant was living in Iraq and Jordan. 6 The Tribunal further accepted that Jordan was not the applicant's country of former habitual residence because he lived there illegally and faced the threat of deportation. The Tribunal also accepted that the applicant had lived in Iraq illegally for three years and that the nature of his residence in Iraq was transitory so that Iraq could not be considered a country of former habitual residence. 7 The Tribunal stated (at 82 of the record) that the applicant had made only generalised claims of persecution with regard to Kuwait, a country which he had left in July 1991. The Tribunal did not accept those claims as being relevant at the present time given the changed circumstances in Kuwait affecting Bedouns and those who claim to be Bedoun. In arriving at this conclusion, the Tribunal accepted that in the past Bedouns had been the subject of discriminatory treatment in Kuwait including restrictions on marriage, driving licences, employment, education and movement. However, the Tribunal went on to say: "Generally however, the independent country information suggests that the Kuwaitis take a pragmatic approach to dealing with the Bedoun and generally leave them alone." 8 The Tribunal noted that there was no substantive evidence of treatment amounting to persecution (at 82 of the record). The Tribunal further observed (at 83) that the applicant's father must have been one of those privileged Bedouns in Kuwait who, until 1990 at least, possessed a right to a passport, access to medical facilities and education for their children, a licence, housing and other privileges. It followed, the Tribunal said, that the applicant would have been a beneficiary of this position up until August 1990. The Tribunal went on to say (at 83): "Nonetheless, I accept that Bedouns in general were persecuted in Kuwait in the past. I accept that the applicant's father might have been refused citizenship when he applied in the past. I accept that accumulatively therefore, it might be said that the applicant encountered discriminatory treatment as a Bedoun between August 1990 and when he left in 1991." 9 But the Tribunal went on to find that the situation in Kuwait "has changed significantly since 1991". The Tribunal said "it is clear that the government is stepping up its efforts to resolve the problem". 10 The Tribunal referred to an invitation made by the Kuwait Government in 1996 inviting all Bedouns to register and 114,000 out of 122,000 Bedouns living in Kuwait had done so. Registration gives Bedouns temporary legal status pending resolution of their nationality and entitles a Bedoun to remain and work in Kuwait like expatriates. They are entitled to a ten year residency with full benefits including work rights and access to all government benefits. Eligibility for this ten year residency is based on a Bedoun having legalised his status. If the applicant is a genuine Bedoun with a father who was born in Kuwait, then under these arrangements "he is entitled to some form of Kuwaiti citizenship or long term residency rights" (at 83). 11 In support of these findings the Tribunal referred to two sources. The first, CX35303, is a document dated 25 May 1998 consisting of a discussion between an officer of the Department of Immigration & Multicultural Affair's mission in Beirut and a representative of the Kuwaiti Embassy there. In the note of that discussion it was stated that the Kuwaitis feel that of the 180,000 to 200,000 illegal residents in Kuwait only some 20 per cent are genuine Bedouns who can demonstrate they were born in Kuwait. However, the note also stated that "Bedouns who can demonstrate they were born in Kuwait will be granted Kuwaiti citizenship" (at 170 of the record). 12 The second source of information relied upon by the Tribunal was document CX35415 dated 7 June 1999 consisting of a note of a discussion between an officer of the department and a UNHCR source in Beirut. In that note it was stated that the Gulf War in 1990/1991 resulted in two significant demographic movements in Kuwait. First, during the Iraqi invasion, over 100,000 Kuwaiti residents who previously had stated they were "Bedouns", moved back to Iraq (these, according to UNHCR, were clearly Iraqi nationals). Secondly, after the liberation of Kuwait, the government was most concerned at the large number of potential "enemies within" (Iraqis) and speeded up its process of assessing Kuwaiti nationality rights. 13 The note went on to state that according to the UNHCR the vast majority of persons claiming to be Bedouns, in fact, fall into the above category. They are expatriates who have lived long term in Kuwait but do not qualify under the country's 1959 Nationality Laws, the majority being Iraqi or Syrian Nationals who do not now wish to return to these countries or, more likely, did return and have been living in Syria or Iraq for some years and now do not wish to remain in that country. 14 The note further stated that the UNHCR advised that the Kuwaiti Ministry of Interior had been meeting regularly with it with the view of "finding a real solution" for the Bedoun population. The note continued, referring to another UNHCR report which stated that "presently the government of Kuwait is sympathetic to the United Nations and has been very co-operative in its interactions with UN and its agencies". 15 With respect to "protection claims", the view was expressed that protection claimants in Australia were not Kuwaiti Bedouns but Iraqi Nationals who do not wish to return to Iraq, or had returned during or immediately after the Gulf War and now do not wish to remain there. The note then went on to state that no Kuwaiti Bedoun had registered with the UNHCR throughout the Middle East region. 16 The Tribunal found that the applicant can apply for, and would be granted, citizenship in Kuwait (at 84 of the record). In making this finding the Tribunal said that it had also borne in mind "that Kuwait is a hierarchical society and that the government is trying to resolve a problem complicated by the fact that there is a large expatriate community living in Kuwait and that the country was invaded by Iraq in 1990" (at 84 – 85). 17 Before the Court the applicant has argued that the Tribunal's conclusions were not, in the circumstances, justified. However, it is clear that the authority of this Court is limited to cases where an error of law has been demonstrated. This Court has no authority to enter upon any factual finding made by the Tribunal. 18 I can perceive no legal error in the Tribunal's conclusion and it must follow that the application should be dismissed. I so order. 19 Costs will follow the event. The application is dismissed with costs.