Applicant X v Minister for Immigration & Multicultural Affairs [2001] FCA 1489

FEDERAL COURT OF AUSTRALIA

Applicant X v Minister for Immigration & Multicultural Affairs

[2001] FCA 1489

APPLICANT X v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 214 of 2001 CARR J 23 OCTOBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W214 OF 2001

BETWEEN: APPLICANT X

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 23 OCTOBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W214 OF 2001

BETWEEN: APPLICANT X

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 23 OCTOBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT

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 1. In assessing the applicant's claims, I accept that various barriers may exist, such as language or cultural differences, which can provide a barrier to making a lucid and plausible plea for protection. I have borne in mind the advice of the Full Federal Court in Kopalapillai v MIMA (1998) 86 FCR 547 which cited with approval Professor J.C. Hathaway's guidance (The Law of Refugee Status, Butterworth's Canada, 1991) in assessing credibility, and the importance of arriving at a conclusion based on an appraisal of the entire case (at 557-558). 2. I accept that applicants for refugee status face difficulties of proof (see: Nagalingam v MIEA, 1992, 29 ALD 173). The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196-197 and 203-204 recognises this and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. However, this does not oblige me to accept uncritically the allegations made by the applicant (see: Randhawa v MIEA, 124 ALR 265, per Beaumont J at 278). 3. It is with an appreciation of all the considerations noted above that I have reached the conclusion that there is a lack of credibility in the applicant's evidence. 4. The applicant claims to be a stateless Palestinian from Kuwait. He states that he has a birth certificate which had been taken by the Department. There is no such certificate or copy of one on his Departmental file, and I do not know if the Department indeed has the document. It is doubtful if much investigation can be made of the document, if it exists, given the applicant's comment that it had been damaged by immersion in water. Despite the lack of satisfactory evidence before me, I will accept that the applicant is a Palestinian. 5. I do not know if the document states that the applicant had been born in Kuwait. 6. If he had, despite his initially equivocal comments on the matter, I accept that he has residency rights in Kuwait. 7. The applicant's extreme vagueness when asked whether and what rights of residency his parents had in Kuwait and what kind of travel documents they had, his initial equivocation over his own residency rights in Kuwait, and his lack of supporting documentation lead me to conclude that he is attempting to hide his true circumstances to the Department and the Tribunal. 8. In addition, I view with misgiving his claim about being too lazy to obtain a (Palestinian) passport when he came of age in Kuwait in 1995, and his subsequent claim that, being too lazy, he had instead obtained an ID card identifying him as Palestinian. This does not ring true: while a passport and an ID card both serve as documents of identity, they are issued - and obtained - for different reasons: one to travel on, and the other to produce as proof of identity inside the country of residence. A person does not normally get one instead of the other but, according to need, as well as the other. (A roughly similar example would be the differing uses of a passport and a driver's licence in Australia.) The Kuwaiti bureaucracy has been going through a stringent, controversial process of identifying, counting and checking the residency rights of the hordes of foreign workers in that country, partly due to the security concerns that followed the Iraqi invasion (a large number of residents in Kuwait were from Iraq and allied countries, and also Palestinians, seen as allied with Iraq). A large number of these people were detained and investigated, their residency status found to be invalid, and deported (CISInfo Report KWT19991124 of 24/11/99, CX38717). I am therefore not satisfied that a Palestinian stopped at a Kuwaiti security checkpoint would be allowed time and again to show a Palestinian travel document instead of the normal ID card giving both ID details and residency status. I gained the impression that the applicant had embarked on a claim of having obtained a passport in 1995 and then decided midway to abandon that claim because it would have come into conflict with his claim that someone else had obtained a travel document for him by subterfuge in 1998 when he left Kuwait. 9. I also find it implausible that, rather than a normal ID card, the applicant would have been able to use a "school card" as his sole document of identity before 1995 given the stringency of ID checks (e.g. DFAT cable RY4759 of 10/3/98, CX28810 specifically describes how in 1997 all Kuwaitis had their ID checked to ensure security) and the Kuwaiti Government's concern that all residents be able to present, when asked, uniform ID cards showing residency/citizenship/nationality status (Kuwait Re-examines Stateless Issue, 18/5/97, United Press International, CX30541). I am of the view that the applicant also felt this claim of use of a "school card" to be implausible and that this was why he immediately added that he had rarely had to use it because he rarely went outdoors into public areas. Since according to his evidence he had attended school and did computer studies and also took part in sports such as swimming and football, I find that he would have been outdoors regularly, and this hole in his evidence reinforces my view that the preceding claim, of having used a school card as his sole ID, is suspect. 10. In summary of the above, I find that the applicant has presented his evidence in such a way as to obscure from the Tribunal his documented identification and status in Kuwait, so that I cannot be satisfied that he is what he claims to be: a stateless Palestinian born in Kuwait with certain residency rights. 11. Even if he is a stateless Palestinian born in Kuwait, I am not satisfied -contrary to the applicant's adviser's submission - that being denied citizenship of Kuwait is persecution. The fact that the applicant might be without Kuwaiti nationality, although born in that country, would not be because of persecutory intent by the Kuwaiti authorities but because that country is following an Arab policy stance to shore up the nationhood rights of Palestinians: In the Arab States, the Palestinians benefit in principle from the 1965 Casablanca Protocol, which enjoined signatories to uphold the right of Palestinians to work, to enjoy full residency rights and freedom of movement within and among the Arab countries. Such rights, however, explicitly stopped short of formal citizenship, due to the importance which the Arab States attached to maintaining the identity of the Palestinians and their claim to a separate homeland. The State of the World's Refugees: A Humanitarian Agenda, UNHCR, November 1999, Box 6.3 The Problem of Palestinian Nationality, http://www.unhcr.ch/world/mide/palestin.htm. 12. I am not satisfied that in these circumstances denial of citizenship is motivated by one of the persecutory grounds stated in the Convention. 13. It is pertinent to note that refugee status is not accorded to persons merely because they are stateless. Although it has been argued that stateless persons who are unable to return to their country of former habitual residence do not need to establish a well-founded fear for a Convention reason (Savvin v MIMA [1999] 166 ALR 348) the Full Federal Court has confirmed that statelessness is not of itself sufficient to establish refugee status (MIMA v Savvin & Ors [2000] FCA 478). The Full Court held that Article 1A(2) of the Convention is to be construed as including the requirement that a stateless person, being outside the country of his or her former habitual residence, have a well-founded fear of being persecuted for a Convention reason. For reasons explained fully below, I am not satisfied that the applicant has a well-founded fear of Convention-linked persecution in Kuwait, or in Jordan where he spent considerable time before coming to Australia. Therefore I find that being stateless, as the applicant claims to be, does not bring him within the ambit of the Convention. 14. I am not satisfied that the applicant was persecuted in Kuwait for being a Palestinian. 15. Independent evidence shows that stateless Palestinians from Gaza, etc. received "special consideration" by Kuwaiti authorities and so much so that for instance unemployed Palestinian widows and their children enjoyed virtual permanent residence in the country even though they might have carried travel documents from another country such as Egypt or Syria (Longva, Anh Nga: Keeping Migrant Workers in Check, The Kafala System in the Gulf, Middle East Report, Summer 1999, CX37804). It is a fact that Palestinians were viewed with extreme hostility in the wake of the 1990 Iraqi invasion because the PLO leader, Yasser Arafat, had supported Baghdad (Annual Assessment of Conditions Affecting Refugees, 2000 - Kuwait, US Committee for Refugees, CX44169). Palestinians and people from other nations who had supported Iraq were expelled in large numbers by a vengeful Kuwait. A report dated 1991, after the Iraqi withdrawal, stated that there used to be more than 400,000 Palestinians in Kuwait, that about 230,000 of them had left after the Iraqis had withdrawn, and that at the time of writing (August 1991) there were 100,000 "and their numbers are dwindling fast" (CX24249). DFAT stated in 1997: As a result of Palestinian attitudes during the Iraqi occupation the … Palestinian population in Kuwait ... has been reduced to approximately 10 per cent of the pre-war level. DFAT Country Information Report 188/97 of 5/5/97, CX22445 16. DFAT went on to state, significantly: The Palestinians that remain in Kuwait are those that are regarded as loyal and trusted. 17. The above comment about better attitudes towards Palestinians in Gulf countries such as Kuwait is echoed in another DFAT cable from 2000 which states: The fortunes of Palestinians in the Gulf and Peninsula have fluctuated over the past decade. Many thousands were expelled from states of the region following PLO leader Arafat's support for Saddam Hussein in the 1990-1991 Gulf War. In recent years, however, conditions for Palestinian expatriates have improved significantly following rapprochement between Arafat and Gulf leaders. In Saudi Arabia, for instance, Palestinians excel in senior managerial roles, in the academic field, and in industry generally. - DFAT Country Information Report 408/00 of 1/8/2000, CX44946. 18. In further support of improved and sufficiently good conditions for Palestinians in Kuwait, UNHCR finds that notwithstanding a level of societal discrimination, local integration is a "durable solution" for Palestinians (CX44169). 19. According to his own evidence, the applicant and his mother were not deported in the wake of the Gulf War although hundreds of thousands of other Palestinians were sent away. This indicates that they had clear and unassailable citizenship or residency rights in Kuwait, and a profile that caused Kuwaiti authorities to deal sympathetically with them. The applicant states that he and his mother received assistance through the Bait Al Zakah (Zakah fund) of Kuwait, which is described as one of the best-administered funds in a Muslim country (Chand, Indira: Public Confidence Needed in Zakah Organisations, IslamiQ, http://www.islamiqmoney.com/art‑fe01-04102000.htm, and is a semi-governmental organisation headed by leading Kuwaiti citizens and religious scholars. Such semi-governmental assistance again does not support a view that the Kuwaiti authorities discriminated against the applicant. The applicant had access to school and other education, and, right after educating himself, he found a job. This suggests that while it might be that some Kuwaitis still discriminate against Palestinians in memory of the 1990 invasion, it does not appear from the applicant's history that Palestinians find it overly hard to obtain employment. Lured by higher pay, the applicant then moved confidently to another job - again, this does not indicate that he faced discrimination amounting to persecution. 20. This brings the Tribunal to consider what allegedly happened after the applicant joined the service of his second employer. 21. The Tribunal accepts that this man might have been a bully who delighted in belittling his workers, particularly non-Kuwaitis who needed their jobs and were too scared to retaliate. The applicant claims that this employer had been harsh towards everyone and particularly towards him, the lone Palestinian in the office. I accept that the employer could have been one of those Kuwaitis who had suffered badly under the Iraqis or who generally disliked Palestinians and who thus liked tormenting his Palestinian employee, to the extent of delaying payment of his salary. I am not satisfied however, that that kind of interplay between this employer and himself entitles the applicant to claim protection in Australia under the Convention. The applicant could have left this man's employ and found another job with a better employer. It does not appear from the applicant's evidence that he and his family lacked useful contacts, and there is no evidence that his previous employer, for one, was mean and showed discrimination towards him. 22. Whether or not the applicant's second employer, in the heat of argument, accused the applicant of having collaborated with the Iraqi army in 1990, and notwithstanding the Kuwaiti authorities' sensitivity about the PLO-Baghdad alliance, I am not satisfied that a stray accusation would have caused the Kuwaiti authorities to charge the applicant with espionage and persecute him. Here are some reasons why: · The applicant was just 14 years old at the time of the invasion and hardly the age at which he would have been viewed as a collaborator by either side. Granted, a skilled and motivated youth could have become a collaborator, but I am not satisfied that the applicant was one: on his own evidence he is uninterested in politics and interested simply in sport and computers. The authorities would thus have found no evidence that the applicant was linked to activist or subversive groups or that he had a profile that was of concern to them or one which suggested that he could have been a collaborator. · Palestinians like the applicant who were not deported in the aftermath of the invasion are regarded as "loyal and trusted" according to independent evidence cited earlier, rather than (as the applicant claims) being as a class regarded with malevolence. · The employer only came to know the applicant in 1998 when the applicant joined his firm. There is no evidence that he had known, or known of the applicant prior to that time. He could therefore not have known what the applicant's activities during the war might have been. · The Kuwaiti authorities carried out extensive investigations on suspected collaboration during the period of the 1990-91 Iraqi invasion and occupation of Kuwait. Having ended its investigations, it has wound up its trials of collaborators and, in 1995, dissolved the tribunals set up for the purpose (Ratnasabapathy, Senthil: Human Rights: Progress Praised, But More Needed - Amnesty, Inter Press Service, 21/2/96, CX25363; Kuwait: Five Years of Impunity Since the Withdrawal of Iraqi Forces, Amnesty International, 22/2/96, AI Index: MDE 17/4/96, CX22867). The Amnesty International Annual report on Kuwait in 2000 has no mention of people being arrested for collaboration dating back to 1990. The Canadian Immigration and Refugee Board in January 1999 found no evidence that the Kuwaiti authorities were continuing to arrest and detain Bedoun suspected of supporting Iraq during the Iraqi invasion (KWTJO890.E, REFINFO). It could be assumed that since the authorities have discontinued arresting Bedoun over the 1990 war, they have also stopped arresting others, such as Palestinians. I am not satisfied that the Kuwaiti authorities would pursue the applicant over collaboration charges given that it has long ended its investigations on the matter, and given the lack of plausibility in this particular case. · I am not satisfied that the applicant's employer would have courted the bother of police investigation or risked official censure for making baseless accusations about matters as important as national security . · I am also not satisfied that the employer could have persuaded other employees (who according to the applicant's evidence were from other countries) to bear false witness as they too would not have wished to risk investigation and censure by the police of a host country in which they had secured good jobs and needed a clean record to be able to renew work visas. Moreover, they might have justifiably feared that what the employer could do unfairly to one person he could do to them all if given encouragement. · Even if the employer had accused the applicant to the police and the police as a matter of routine had followed up the matter, I consider that the applicant would have, by citing all the issues given above, been able to satisfy the authorities that the charges were baseless and motivated simply by malice. I am not satisfied that he would have been persecuted or that he had to flee Kuwait. · For the sake of completeness, I will add that I am not satisfied that the applicant would have been persecuted just because a cousin had been detained in 1991 on spying charges as, if the authorities were impelled to charge people related to suspected spies, I consider that they would have investigated and charged the applicant years ago. 23. The applicant's claims regarding the authorities' alleged "pursuit" of him lack credibility. I consider that the Kuwaiti authorities would have pursued with vigour the apprehension of a suspected spy, and I find it quite implausible that they would not have visited the suspect's home more than once to search for him, or searched all other known possible addresses such as the homes of his relatives and friends. I consider that they would have done these things as well as keep watch on his home. Even though Kuwait is a small country, I am not of the view that its security forces would wait passively until spies happened to walk their way. I do not consider that the security forces would have been concerned about making a "fuss" when looking for a suspected spy in the homes of that person's relatives: plain security concerns come uppermost in the minds of intelligence and security agents anywhere in the world; Kuwait fears Iraq so much that it built a 200km electric fence and dug a 200km trench along its UNIKOM-guarded border after the Iraqi invasion (DFAT Country Information Report No. 368/00 of 17/7/2000, CX43261): it would not be nonchalant about investigating an Iraqi spy threat. 24. The applicant's claims about the method of his alleged escape from Kuwait also lack credibility. I am not satisfied that he would have been able to pass through the border with as little inquiry and scrutiny as he alleges, given Kuwait's focus on security. I am not satisfied that he would not have been investigated as an individual by either Kuwaiti or Saudi border guards rather than having a courier as a total buffer. Scrutiny of individuals along with their passports is normal practice anywhere, and I am not satisfied that the practice differs in Middle Eastern countries, where security concerns are particularly high, even if people were travelling on pilgrimage. The Tribunal's own experience and observation when travelling in the Middle East, is that individual travellers are scrutinised. I am not satisfied that the applicant would not have seen and had never known, what passport he would have travelled on, and what name was on the passport. No sensible people-smuggling courier would have risked the applicant being questioned by a border guard about his passport and name and being flummoxed over these details. I consider that the applicant's alleged ignorance about the nature of his passport was a ploy aimed at distancing the Tribunal from knowledge of his actual passport and circumstances. 25. I consider that a person in the applicant's claimed situation of being falsely accused of spying by a nasty employer would have, if necessary, used the resources of UNHCR in Kuwait. In 2000, 2197 Palestinian refugees in Kuwait were registered with UNHCR, which is given authority by the Kuwaiti Government to adjudicate claims and issue papers of safe passage for holders to avoid arrest and detention. The US Committee for Refugees in 2000 quotes a UNHCR official saying that "UNHCR generally has successfully negotiated with the Kuwaiti authorities to create local solutions for individual cases" (CX44169). When it is unable to do this, UNHCR seeks to resettle the individual in a third country. UNHCR states that the Kuwaiti authorities are generally co-operative in assisting its operations (UNHCR Country Profiles -Kuwait, September 1999, http://www.unhcr.ch/world/mide/kuwait.htm. These arrangements, I consider, would have well suited a person in the applicant's claimed circumstances. I consider that a person in such a situation would have used the opportunities he had to stay in his country and answer a flimsy charge brought by an individual rather than run away and leave his ageing mother to face the detritus of his problems on her own. 26. There is a lack of credibility in the applicant's explanations as to why he did not seek UNHCR assistance. It is implausible that the applicant would not have known about UNHCR's operations (or of operations of UNRWA, as he possibly indicated) given the significant role played by both bodies in the Middle East, particularly among displaced Palestinians. The applicant's claims of being too "simple" to know about "complicated" things and of relying totally on his mother and uncle are also implausible: he does not at all appear to be simple-minded or naive, and has shown resource and ingenuity in working abroad and coming here. I do not consider that a person in his claimed circumstances would have been prevented by Kuwaiti guards (or, in Jordan, by Jordanian guards) from getting UNHCR assistance as such an assertion is not borne out by that body's own acknowledgment of being allowed in practice to carry out its mandate in those countries. 27. I consider that the applicant fabricated these explanations to support a claim that he could not stay in Kuwait (or in Jordan). 28. On the basis of all of the above, I am not satisfied that the applicant left Kuwait, and after that, Jordan, out of a well-founded fear of persecution for a Convention reason. Given this, I am not satisfied that he faces a real chance of persecution on his return to Kuwait or to Jordan. 29. I consider that he left Kuwait - whether or not after an argument with an employer - to pursue career opportunities in other countries such as Jordan, and to better his financial circumstances. Such actions are very understandable among skilled youth. It is my firm view that the applicant's claims of persecution have been fabricated to support an application for a visa that would allow him to live and work in Australia. 30. I note that the applicant did not bring his passport with him to Australia. Since I am not satisfied that he left Kuwait out of fear of persecution, I consider that he left normally on his own passport. Given this, I am of the view that he entered Jordan normally and legally on that passport and that his 1˝ -year stay in Jordan was legal. He might have used a false passport to travel to countries between Jordan and Australia to suit a purpose. How the applicant travels back to his country of residence is a matter for him to arrange, in the same way that he arranged his travels out of that country. I do not accept the applicant's adviser's submission that he would encounter problems for having left Kuwait illegally as I am not satisfied that he did leave illegally. Neither am I satisfied that he entered and resided in Jordan illegally. I consider that he left Kuwait normally and legally and that he has access to the passport he used to leave that country and travel to Jordan as I find it implausible that he would have imprudently and needlessly destroyed a valuable document. Even if he had disposed of it I am not satisfied that he would encounter any Convention-related difficulty in obtaining a replacement as I am not satisfied that he had any Convention-related problems with the Kuwaiti authorities. He would, on his own evidence, have proof of status and residence in Kuwait through ID card, birth certificate, family and school records, etc, and be able to obtain references from family members if they were needed. In addition, I consider that the Department would give him any assistance he might require. As stated earlier, I am not satisfied that the evidence before me demonstrates that the applicant has a well-founded fear of persecution for a Convention reason. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."