1824441 (Refugee)

[2022] AATA 2503

1824441 (Refugee) [2022] AATA 2503 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rayan Hazim

CASE NUMBER:  1824441

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Genevieve Hamilton

DATE:21 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 June 2022 at 1:02pm

CATCHWORDS

REFUGEE – protection visa – Iraq – race – Bidoon – religion – Sunni – nationality – stateless – Kuwaiti resident – deported from Kuwait – employment – detention – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 46, 65
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant arrived in Australia in 2010 and his protection claims have been assessed several times.  The application currently under review was made on 1 August 2017. The delegate refused to grant the visa on 2 August 2018. 

   CRITERIA FOR A PROTECTION VISA

3. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

4. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

5. Australia’s obligations are assessed in relation to claims to require protection from “the receiving country”.  For persons who have a nationality, the ‘receiving country’ is the country of nationality. Whether a person is a national of a particular country is to be determined solely by reference to the law of the relevant country. For persons without a nationality, the receiving country is the country of former habitual residence with the added qualification, that it does not matter whether return to that country would be possible.  The Act does not define the term country of former habitual residence.

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for the essential reason of their race, religion, nationality, membership of a particular social group or political opinion (the refugee reasons), there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. Section 5J(4) also states that the persecution must involve systematic and discriminatory conduct.

12. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

16. The applicant had an unauthorised arrival interview on Christmas Island on 10 April 2010, with an Arabic interpreter.  He said his date of birth was [date].  He was born in Al Jahara, Kuwait.  He was stateless.  He provided the address in Al Jahara where he lived until 2007, a landline and his father’s mobile phone number.  He went to school to complete [grade] in Al Jahara.  Then he had various [jobs].  He has had no military service.  He is a Muslim “Suni”.  He never married.  He speaks Arabic with Kuwaiti dialect.  His father was in the army Kuwaiti army from [specified year] to 1996.  He has [number of siblings], including [one] in Sydney born [in year] ([who] came on a spouse visa).  He also has [another relative] in Sydney.

17. The applicant said he was deported from Kuwait in 2007 and lived in Zubair, Iraq (and left Iraq) on a false Iraqi passport until [December] 2009.  He said he had never been involved in political activities. 

18. The applicant said that before the Iraq invasion of Kuwait in 1990 the stateless people were able to get a green card and renew it and could also have health insurance and a free education.  They could not get a passport unless they bribed officials.  After 1990 they were not allowed any of these things.  His father, even though he had been an POW of the Iraqi forces (tortured and beaten, others were killed), was dismissed from the army.  All stateless people were required to show a connection with another country.  His father bought a false [Country 1] passport in about 1998.  With this he was able to obtain his military pension.  That passport expired in 2002.  He tried to get Iraqi passport but he couldn’t go into Iraq so he obtained one from [Country 2].  2004 he obtained an Iraqi passport for the whole family, except for the [one sibling].  While the applicant was a minor his father could sponsor him to stay in Kuwait.  In 2006 his residence status expired.  He was [age] so his father could no longer sponsor him.  In 2007 he was detected at a checkpoint and taken to a police station from where he was deported to Iraq, where it was found that his passport was not recorded.  His father paid an Iraqi officer to get him released.  He stayed with a friend of his father’s.  He continued to try to get sponsorship to go back to Kuwait but this proved impossible.  In Iraq people asked questions about him and he had difficulties with the authorities due to his lack of documents. 

19. He obtained a false Iraqi passport through someone at the passport office for US$200.  It was taken by the agent in [a transit country].  He does not recall its number.  It had his own name and photo.  The applicant said he could not return to either Kuwait or Iraq because he had no documents.  He said he left by plane.

20. In a statutory declaration dated 14 May 2010, the applicant said his family have always lived in Kuwait and he was never told why his grandfather did not register as a citizen in 1959.  Because his father had been a POW he was not expelled from the army like most Bidoons, until 1996.  He was expelled then because he did not get a passport.  The applicant described in detail the resulting limitations on his family’s rights.  In 1998 his father got a false [Country 1] passport, and thus Kuwaiti residency.  He was then able to have a driver licence and get his military allowances but nothing else changed.  In 2002 he got an Iraqi passport and residency.  2004 he obtained residency for the whole family.  In [year] the applicant turned 18.  His father got him an Iraqi passport and he was sponsored for residence for one year.  In 2007 he was stopped at a checkpoint, with expired residence, and deported to Iraq, where he was looked after by a friend of his father in Zubair (Basra).  Kuwait would not let him return without proof of Iraqi citizenship (passport not enough).  2008 they stopped anyone from Iraq obtaining residence.  The applicant further described being Sunni and Kuwaiti in Iraq.  Three months before leaving he was beaten up on the way to Mosque, because of being Kuwaiti Sunni.  He couldn’t fly out because his passport would be inspected; he crossed by land to [Country 3]. 

21. In his first protection visa application the applicant said he had [specified relatives] in Australia.  The applicant said he had no criminal records.  In his personal particulars form he said his parents were both born in Kuwait. 

22. The applicant supplied identity and other documents as listed in the delegate’s decision: Father’s Kuwaiti Military reference letter;  Father’s Kuwaiti Army identification card; Father’s Kuwaiti Army discharge letter; Kuwaiti Ministry of Health letter; Father’s Prisoners of War certificate; United Nations High Commissioner for Refugees (UNHCR) asylum seeker certificate; Kuwait birth certificate; Vaccination record; Birth record for the applicant’s mother; Executive Committee for Unlawful residents White Card of the applicant; Kuwait school records/certificate.

23. In a submission by [his former] lawyers dated 29 May 2010 it was contended that denial of right to work in Kuwait amounts to persecution (economic hardship and denial of capacity to earn a livelihood threatening their capacity to subsist).  Working illegally does not count, as it  can result in being harassed by Kuwaiti authorities (as per the applicant’s claims).  The applicant also experienced denial of access to basic services, including because of a low income associated with working illegally.  In a further submission dated 9 June 2010 they stated that it was easy to get Iraqi passports using false documents and bribery.   They also referred to ongoing sectarian violence in Iraq, including Basra, due to the presence of competing Shi’a militia. 

24. In the 20 July 2010 Refugee Status Assessment (RSA), the delegate noted the applicant’s claims and referred to the RSA interview conducted on 17 May 2010, in which the applicant had reiterated that he left overland to [Country 3] (cf entry interview), with the involvement of his father’s friend and an Iraqi police officer.  The delegate noted that that at entry interview the applicant had implied he got a passport in 2009 while living in Basra (cf later claims), that his sister had said her parents and she were born in Iraq, and that his UNHCR certificate states he is an Iraqi national.  The delegate found he was an Iraqi national.  He was able to enter Iraq and had no problems with his passport.  The delegate was not convinced the applicant’s claim of being assaulted was credible, or that it was for a refugee reason.             

25. As stated in file documents, two Independent Merits Reviews (IMRs) followed the RSA, both went to judicial review and in both cases the Minister withdrew.  It is noted the first IMR found the applicant was stateless and assessed his claims against Iraq and Kuwait.  The second IMR found he had never lived in Iraq and assessed his claims only against Kuwait.  It is stated that in July 2013 an identity assessment found the applicant was not stateless and likely Iraqi.  However this assessment is not on the Department file.  In May 2014 the Department decided to conduct a Protection Obligations Evaluation (POE), in light of the judicial review outcomes.  In an undated statement at round this time the applicant confirmed he is Sunni.  He also said he was imprisoned in Iraq for a year due to inadvertently breaking the law with regard to importing cars from Kuwait.  He was sorry for not previously declaring this.  His Kuwaiti residence expired in the meantime.  Because of being Sunni and stateless he faced discrimination and threats in Iraq and was unable to find any sort of work. 

26. The POE delegate considered the Kuwaiti identity docs and considered them unreliable due to document fraud in Kuwait, and found the applicant to be Iraqi.  The delegate considered that the applicant would have been deported or detained in Iraq, not jailed and released, if he was not Iraqi.  The delegate noted country information which indicated that Iraqi criminal code considers stateless persons are Iraqi citizens if they live in Iraq.  The delegate said this did not apply as the applicant did not live in Iraq prior to incarceration.  During the POE interview the applicant said that in 2009 he had his passport renewed (not issued).  The delegate noted that his passport would have been valid until 2013 based on country information and would not have needed to be renewed.  The discrepancy regarding how he travelled out of Iraq was relevant to his credibility.  Country information supported his claim that passports can be issued easily based on counterfeit documents.  But the delegate was not convinced that this applied to non-Iraqi nationals (it was not clear in the reasoning who else would need a fraudulent passport).  The delegate considered that the applicant’s father was an Iraqi national and therefore not stateless in Kuwait.  The applicant’s passport, as per the usual practice listed father’s place of birth (Al Nasiriyah) for a child born outside Iraq.  The delegate accepted there would be a perception of being Kuwaiti, anti-Iraqi, and accepted he required protection on the basis of being Sunni in southern Iraq.  The POE outcome was positive on 27 April 2016. 

27. In May 2017 the applicant was invited to apply for a TPV or a SHEV following the lifting of the 46A bar.  One issue considered in the lifting of the bar was that the IMR reviewers had found that the applicant should be assessed against Kuwait as country of former habitual residence.  However, country information indicated he might not be able to get residence again. 

28. The applicant applied again for protection on 1 August 2017 (the SHEV application, currently under review).  Again he stated that he was born in Al Jahara, Kuwait, is stateless and so are his parents, also born in Kuwait.  In this instance the application form said he was Shi’a.  The applicant was interviewed on 26 March 2018.  In the decision under review, the Delegate concluded that the applicant was a Kuwait born Iraqi citizen, appeared not to accept that the applicant was Sunni, and found he did not require protection in Iraq. 

29. The applicant gave evidence at a hearing of the Tribunal.  He stated that he was born in Al Jahara Kuwait, as were both his parents.  As far as he knew his grandparents were born in the same area and his ancestors prior to this were nomadic.  The family did not have Kuwaiti citizenship.  His father joined the Kuwaiti army (was a [specified position]) and was captured by Iraqi forces during the invasion.  He was held for 8 months.  After Kuwait was liberated the government tightened its policy towards Bidoons because some had collaborated.  From 1995 it became necessary to obtain evidence of some other nationality (even if it was not genuine) in order to maintain government employment.  The government was trying to erase the Bidoons.  His father objected to this as he had served the country and been a prisoner of war.  Eventually he was sacked from the army in 1996 or 1997.  His life became miserable, he couldn’t earn any money and suffered from depression and anxiety.  The applicant and his [siblings] had to stop going to school (previously as the child of an army soldier he had a free education) and take any available work to keep the family going. 

30. Eventually the applicant’s father decided to get a fake Iraqi passport.  It was a replica: not actually issued by the government.  Then in 2004 or 2005 when the border had opened he was able to get authentically issued passports for himself and his elder children, by persuading the Iraqi authorities that he was born there.  The passports had this peculiarity: everyone had the same day and month of birth.  With these the family were able to continue their residence in Kuwait. 

31. In 2005 the applicant moved to the border area to work. He was [engaging in specified business].  He [travelled into Iraq for business] in July 2005 but the paperwork wasn’t correct.  On 31 December he was questioned by Iraqi officials because [equipment] had disappeared in Iraq and they were not [correctly accounted for].  He was remanded awaiting trial for 3 months.  His lawyer managed to track down where and to whom the [equipment] were registered, and argued that the applicant was just a middle man, but the applicant was sentenced to one year in prison, [details deleted], and with three months on remand discounted, he was released in December 2006.

32. He was remanded in [a named] prison, it was very overcrowded, then to [Prison 1] to serve out his sentence.  The treatment was very cruel, people were punished by being tied up and beaten with plastic pipes for infraction of minor rules.  He was warned not to say he was Sunni: before he got there 10 people were attacked in the yard by Shi’a extremists, nine of them were killed.  There was a lot of drug use and fights everyday.  He was supported by some older guys.  He was beaten by the wardens one time for being in a brawl even though he was not an instigator.  The ventilation and food were bad, and he was not allowed to make any calls.  He had no visitors.  When he was released, he was able to get his documents back but the money he had on him when he was arrested was gone. 

33. Unfortunately his Kuwaiti residence had expired in June.  An old friend of his father called [Mr A] (a Kuwaiti expat living in Basra, from the [named] tribe) took him in.  The applicant stayed with this family for three years until he left for Australia.  [Mr A] was afraid the applicant would be recognised as a foreigner, as there was a lot of killing going on at the time.  The applicant could hardly leave the house.  It was even worse than being in prison.  He felt suicidal and missed his mother, and his other family, so much.  Kuwait had been his only home.  People picked on his accent and questioned him about his religion.  On one occasion the shopkeeper next door was shot dead in front of his children.  The applicant didn’t go to mosque much but on one occasion when he did, he was attacked by three Shi’a men who called him “the Kuwaiti” and a Wahabist. 

1. The applicant and his father both tried to get his Kuwaiti residence renewed but it was impossible. 

2. The Tribunal asked the applicant about his facebook contacts from which the Delegate had concluded that the applicant had a contact in the Iraqi army.  The applicant said he had been questioned about these by [Agency 1], they were tribal contacts from different professional backgrounds.  He did not have a friend in the Iraqi security forces.   

3. The applicant confirmed that he and his family are Sunni, not Shi’a.  He could not explain why his SHEV application stated that he was Shi’a.  He said the majority of the Bidoons in Al Jahara were Sunni but there were no problems between the two sects there. 

4. The applicant confirmed he did not fly out of Iraq.  There were no flights available so he went overland by bus to [a location] (not train) and then went to Tehran airport.  He could not explain why his arrival interview implied that he got his passport in 2009: there was some kind of action in relation to his documentation but he could not remember what it was by now.  It was not to get a passport, he already had one. 

   FINDINGS AND REASONS

5. The applicant’s entry interview, according to the notes taken by the interviewer, contains information inconsistent with his later claims.  However, the Tribunal found the applicant to be generally a credible witness and the inconsistencies do not go to the heart of his case for protection.  The Tribunal gives the applicant the benefit of any doubt that may arise from these inconsistences. 

6. The applicant is not a national of Iraq.  Iraqi nationality law provides that a person shall be considered Iraqi if he/she is born to an Iraqi father or an Iraqi mother, or born in Iraq to a non-Iraqi father who was also born in and habitually resided in Iraq, or by naturalisation after 10 years legitimate residence.  The applicant consistently stated that he and his parents were born in Kuwait. 

7. A passport is prima facie evidence of citizenship.  At the SHEV interview and Tribunal hearing, the applicant himself seemed to be of the belief that having an Iraqi passport made him an Iraqi national.  But the applicant has consistently stated that his passport was obtained based on false information (that his father was born in Iraq).  The applicant’s [sibling] is two years younger than the applicant and likely to have even less knowledge of the background to [their] Iraqi passport, and to treat the information on it at face value when completing [their] partner application.  The applicant himself was not involved in [that] application.  That the applicant was not deported from Iraq on completing his sentence is simply because he had an Iraqi passport which had not been questioned.  The UNHCR document is not strong evidence of citizenship and the Tribunal gives it little weight. 

8. The applicant is not a citizen of Kuwait.  His consistent evidence was that his family never had citizenship of Iraq and indeed, that they were forced to obtain passports of a foreign country in order to continue to reside in Kuwait.

9. Therefore it is required to determine the applicant’s country of former habitual residence. 

10. The Department of Home Affairs’ Refugee Law Guidelines provide the following examples of factors relevant for determining an applicant’s country of former habitual residence:

    ·     the applicant must have been admitted to the country with a view to continuing residence of some duration without some qualifying minimum period of residence;

    ·     the applicant must have established a significant period of de facto residence in the country in question;

    ·     residence or settlement of some duration that is more than a short term or temporary stay

    ·     there is continuity of stay or a settled intention or purpose to stay;

    ·     nature of residence, for example, whether the applicant has made the country their abode or the centre of their interests;

    ·     there is no requirement for formal permanent residence or domicile.

11. The applicant only lived in Iraq for a few years.  The first 12 months were spent in prison.  He did not intend to be in Iraq, he found himself there because he was arrested.  He did not want to stay there after being released from prison.  He was only there because he had been in prison in that country and upon release found he was unable to return to Kuwait.  He attempted to return to Kuwait but unsuccessfully.  He was taken in by a friend but had no employment or other means of settling there.  Iraq is not a country of former habitual residence for the applicant. 

12. The applicant’s country of former habitual residence is Kuwait, where he was born into an intergenerational family of stateless Bidoons who had settled in the Al Jahara area.  He lived there until the age of [age] and most of his family still reside there.  The applicant’s description of life as a Bidoon in Kuwait, including the policies of Kuwaitisation and denial of Bidoons’ civil and economic rights, was detailed and consistent with country information cited below  The Tribunal accepts that the applicant is a Bidoon from Kuwait. 

46.      Bidoon: Being Stateless in Kuwait | Americans for Democracy & Human Rights in Bahrain (adhrb.org)

Bidoon (shortened from the term Bidoon jinsiyya and meaning “without nationality” in Arabic) are stateless minorities in Kuwait who, despite being long-term inhabitants of the country, have been systematically denied Kuwaiti citizenship. The government of Kuwait classifies Bidoon as “illegal residents,” though they do not hold any alternative connection to another country. Following decades of suppression, Bidoon are confronted with significant difficulties when attempting to obtain civil documents, education and employment status, healthcare and social services, as well as encountering difficulties with marriage rights and passing their nationality to their children. Despite these struggles, their experience has been largely met with silence from the international community.

47.      World Report 2021: Kuwait | Human Rights Watch (hrw.org):

The Bidun comprise between 88,000 to 106,000 stateless people who claim Kuwaiti nationality, dating back to the foundation of the Kuwaiti state in 1961.

Claiming that most of the Bidun moved to Kuwait from neighboring countries and hid their other nationalities to claim Kuwaiti citizenship, the government refers to them as “illegal residents,” resulting in obstacles to them obtaining civil documentation, receiving social services, and impairing their rights to health, education, and work.

The Central System for the Remedy of Situations of Illegal Residents, the current administrative body in charge of Bidun affairs, has been issuing temporary ID cards since 2011. The process of determining applicants’ eligibility for services and whether they hold another nationality remains opaque. The ID cards issued to Bidun in recent years often state that the cardholder possessed Iraqi, Saudi, Iranian, or other citizenship, but it was unclear how the agency determined the individual’s alleged nationality and what due process procedures are available for Bidun to challenge the Central System’s determination.

48.      Aliens in their own land: Kuwait’s stateless Bidoons persist on the margins (trtworld.com)

From independence till the mid-1980s the Bidoons’ status was undecided, and they were provided with minimal civil rights that allowed them access to basic services.

By 1986, the state’s policy dramatically shifted. Authorities stripped Bidoons of basic civil rights through the Alien Residence Act, as their status was changed from “legal residents without nationality” to “illegal residents”.

The 1990 Iraqi invasion was another milestone in Bidoon history, as many of them made up the ranks of the Kuwaiti army and were subsequently portrayed as Iraqi collaborators upon Kuwait’s capitulation to Saddam Hussein’s forces.

Upon the culmination of the first Gulf War, a state crackdown resulted in the deportation of thousands of Bidoons, and their numbers were reduced from a pre-war population of around 250,000 to 100,000. Many who fled during the war were denied re-entry into Kuwait after it ended.

Throughout the 1990s, a state policy of rights stripping continued. Authorities ceased to issue identification documents to pressure Bidoons to reveal their “real” nationalities – or push them to seek any other nationality, even fake ones, which many ended up getting.

The Kuwaiti government’s stance has hardly changed since then. One the one hand, it asserts that Bidoons enjoy human rights on an equal basis with Kuwaiti nationals, but simultaneously believes they are foreign nationals who have destroyed their original documentation to remain in Kuwait and leach off its generous welfare state.

In reality, the government has chosen a deliberate “pressure policy” against the Bidoon, says a Kuwaiti PhD researcher and consultant in social justice and international studies, who wishes to remain anonymous.

She tells TRT World that Kuwaiti officials themselves have publicly stated such intentions.

“Mazen Al Jarrah, a former deputy minister in the nationality and passport affairs, said that they are inflicting psychological and social pressure on the Bidoon to force them to reveal their [proclaimed] true nationalities,” she says.

“Of course, there is no evidence or procedure to prove any of these claims are true, and the government has been refusing to refer the cases to court.”

49.      The Bedoons: Kuwait′s stateless minority | Middle East | News and analysis of events in the Arab world | DW | 21.07.2019

The history of the Bedoons goes back to 1961, the year Kuwait gained independence from Britain. At the time, a number of people living in the region — particularly Bedouins — did not deem it necessary to apply for citizenship. According to Kuwaiti law, they have "undefined citizenship status." Kuwaiti nationality law has not been reformed since, and many of these "undefined citizens" still have not applied for Kuwaiti nationality. They, along with their offspring, are officially stateless, which has made their lives tremendously difficult.

In addition, when Iraq invaded Kuwait in 1990, some Bedoon people sided with the aggressor. Since then, parts of Kuwaiti society reject the Bedoons as disloyal. That some of them fought alongside Kuwaiti nationals against Iraqi forces has done little to dispel this prejudice. Some Bedoon people, incidentally, also fled to neighboring Saudi Arabia when war broke out.

…

In an official statement, the Kuwait Society for Human Rights criticizes the situation of Kuwait's Bedoons as "worse than ever before." It argues that the "state department responsible for them has taken arbitrary measures and is exerting pressure on the majority of the Bedoon people."

The recent arrests of Bedoon protesters "aggravates an already tense situation," says Amnesty International's Middle East Research director, Lynn Maalouf. She adds that "authorities denying them citizenship are denying them a range of basic rights, including the right to health, education and employment. They are also making it impossible for them to become an integral part of Kuwait's vibrant society." 

1. The Tribunal finds that the Bidoons in Kuwait are a race (in the sense of ethnic group) and a nationality (in the sense of ethnic group), and in light of the country information about how they are perceived and treated, they are a particular social group. 

2. In a comprehensive Country Policy and Information Note published in April 2021 the UK Home Office reviews the protection claims of Bidoons in Kuwait and concludes “undocumented Bidoon continue to face treatment that is likely by its nature and repetition to amount to persecution. However, each case must be considered on its individual facts and merit”.  Among the matters discussed in the report is the “article 17 passport”, a travel document issued to some Bidoons in order to attend Hajj, undertake government business, or seek medical treatment.  They were issued to leave and return to Kuwait, not to Kuwaitis abroad.  It quotes the US State Department:

   The USSD report published in March 2020 stated ‘The Ministry of Interior has not issued “Article 17” passports (temporary travel documents that do not confer nationality) to Bidoon except on humanitarian grounds since 2014. In August [2019] the Ministry of Interior said it would indefinitely suspend the issuance of “Article 17” passports.

3. At the hearing the applicant said he wished he could go back to Al Jahara, to be with his family, despite it being a hard life as a stateless Bidoon.  However, the applicant cannot go back to Al Jahara.  The applicant has no right to enter Kuwait, and therefore what will happen to the applicant if he arrives at the border will be that he is placed in immigration detention or prison.  The Tribunal considered how this would affect the applicant in and for the reasonably foreseeable future. 

4. The US State Department Report 2021 states:

   There continued to be reports of torture and mistreatment by police and security forces against detained members of minority groups and noncitizens… Several noncitizens claimed police or Kuwaiti State Security (KSS) force members beat them at police checkpoints or in detention. During the reporting period at least eight foreign nationals reported credible cases of abuse or mistreatment… Numerous activists representing stateless persons of Arab heritage – known in Arabic as bidoon jinsiya (without nationality) or colloquially as Bidoon – reported mistreatment at the hands of authorities while in detention. There continued to be allegations from individuals that they were subjected to unlawful detention and physical and verbal abuse in police centers and State Security detention centers. There are credible indications that police, KSS force members, and the DEGD abused prisoners during arrest or interrogation…. Prison conditions were harsh due to overcrowding.

5. The Second Periodic Report of the State of Kuwait, on The International Covenant on Civil and Political Rights Session in August 2011 submitted by the Kuwait Society for Human Rights describes conditions in Kuwait prisons and the Tahla deportation centre, including  beatings, isolation and shackling, lack of fresh air and exercise, poor sanitation, and deficient medical treatment. 

6. Based on the foregoing, the Tribunal is satisfied that there is a real chance of a threat to the applicant’s life or liberty or significant physical harassment or ill treatment of him, on return to Kuwait.  This is not due to the operation of a law of general application (being undocumented).  He is undocumented because he is a Bidoon, as part of a pattern of systematic and discriminatory conduct against Bidoons.   

7. The applicant will not have the chance to avoid this by relocating to another part of Kuwait.  He will not make it past immigration.  The harm is one that will be inflicted by the authorities, he cannot effectively appeal to state protection.  The applicant does not have a right to enter and reside in any third country.  He cannot avoid the above-described harm by modifying his behaviour; it will happen as a matter of course due to his lack of right to reside in Kuwait. 

8. Accordingly, the Tribunal finds that the applicant has a well founded fear of persecution in his country of former habitual residence and is a refugee within the meaning of s 5H.

   CONCLUSION

9. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Genevieve Hamilton
    Member