BZADW v Minister for Immigration
[2013] FCCA 1229
•3 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZADW v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1229 |
| Catchwords: MIGRATION – Judicial review – independent merits review – whether wrong test of persecution applied – whether wrong interpretation of serious harm applied – whether failure to apply correct test, misunderstanding or misconstruction of relevant test – whether failure to take into account a relevant consideration namely alleged constructive dismissal from employment – whether failure to properly consider question of complementary protection. |
| Legislation: Migration Regulations 1994 (Cth) |
| Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers’ Guild re Dismissal [1979] AR (NSW) 392 |
| Applicant: | BZADW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J BARTLETT IN HIS/HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSOR |
| File Number: | BRG 1080 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 May 2013 |
| Date of Last Submission: | 10 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 3 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A J Torbey & Associates |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 7 December 2012 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1080 of 2012
| BZADW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| J BARTLETT IN HIS/HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived at Christmas Island on 19 December, 2011. Following an unsuccessful request for a Protections Obligations Evaluation and an unsuccessful Independent Protection Assessment, the applicant has filed this application for review.
The applicant seeks the issue of constitutional writs directed to preventing the first respondent from acting upon a recommendation of the second respondent that the claimant not be recognised as a person to whom Australia has protection obligations or as a member of the same family unit of such a person.
The applicant’s application contains nine grounds of review, each expressed in general terms. In the course of oral submissions, the applicant, by Counsel, abandoned the ninth ground of review set out in his application. Notwithstanding the eight grounds of review that remained, the argument made for the applicant both orally and in writing, summarises his grounds as follows:
26. The second respondent erred by applying the test in s.91R(2) [of the Migration Act 1958 (Cth)] rather than the test articulated in Chan [Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379] or S395[/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473];
27. The second respondent asked the wrong question in considering whether the harm the applicant would suffer was because he was a stateless person rather than because he was a Bidoon;
28. The second respondent failed to appreciate the causal link between the applicant being stateless because he was a Bidoon and that because he was a stateless Bidoon he was persecuted. Hence the second respondent asked the wrong question being – was the applicant persecuted because he was stateless? Rather the second respondent ought to have asked the question – was the applicant persecuted among other things because he was stateless and was that situation of being stateless caused by being Bidoon. Alternatively, was the applicant persecuted because he was a stateless Bidoon?
29. The second respondent, failed to take into account a relevant consideration, namely that the applicant was constructively dismissed from his most recent employment in Kuwait;
30. The second respondent failed to properly apply the complimentary protection provisions of s.36(2)(aa) of the Migration Act 1958.
The parties agree that to succeed in this application, the Independent Protection Assessment must be conducted “according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia”: Plaintiff M61/2010E v Commonwealth of Australia (2012) 243 CLR 319 at [88]. The applicant must establish legal error, which might include establishing that there has been a denial of procedural fairness: M61at [8], [76] – [78], [90] – [91] and [97] – [98].
The statutory background and principles
By s.36(2)(a) of the Migration Act, one of the criteria for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the first respondent is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
Article 1A (2) of the Refugees Convention as amended by the Refugees Protocol is in the following form:
“A refugee is a person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
Section 91R of the Migration Act provides:
Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
The word persecuted has been the subject of judicial explanation. The applicant relies particularly upon the explanation found in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (above) at 430 – 431 where McHugh J said:
“In Oyarzo v. Minister of Employment and Immigration the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of “Convention refugee” in the Immigration Act 1976 (Can.) s.2(1). The Court rejected the proposition that persecution required deprivation of liberty. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.
Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution …”
(footnotes omitted)
Further, the applicant points out that in S395/2002 v Minister for Immigration and Multicultural Affairs (above), McHugh & Kirby JJ stated, at 489:
“40. The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the perpetrators. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.”
(footnotes omitted)
The work to be done by s.91R of the Migration Act has also been the subject of judicial explanation. Importantly, and as the applicant points out, the list of the matters set out in s.91R(2) are examples and do not limit the meaning otherwise given to the word persecution for the purposes of the Migration Act and the Migration Regulations: SZATV v Minister for Immigration & Citizenship [2007] HCA 40.
In Minister for Immigration & Citizenship v SZJGV; Minister for Immigration & Citizenship v SZJXO [2009] HCA 40 the High Court concluded:
“6. Section 91R is concerned with the application of the criteria in Art 1A(2) of the Refugees Convention to determining whether a person is a refugee within the meaning of that Article and to whom Australia owes "protection obligations" within the meaning of s.36 of the Migration Act. The first two sub-sections of s.91R are closely related. Section 91R(1) limits the range of circumstances in which apprehended harm will be characterised as persecution for the purposes of Art 1A(2). Section 91R(1)(b) requires that such persecution involve serious harm to the person and s.91R(2) sets out a non-exhaustive list of instances of serious harm.”
The second respondent identified, in the reasons for the recommendation in respect of which the applicant now seeks review, the above statutory framework. The second respondent was alive to the relevant authorities that bear upon the correct approach to the statutory framework (recorded at para.8 of the reasons) and correctly set out the way in which s.91R(1) operates to qualify the word persecution in the Migration Act and the Migration Regulations (recorded at para.11 of the reasons).
The second respondent also recorded, correctly with respect, the provisions relating to “complementary protection” – s.36(2)(aa) of the Migration Act. The second respondent recorded that for the purposes of s.36(2)(aa), the expression significant harm is exhaustively defined in s.36(2A) of the Migration Act.
Factual Background
The applicant was born and, until he came to Australia, lived in Kuwait. He arrived at Christmas Island on 19 December, 2011 and made a request for a Protection Obligations Determination on 17 March, 2012. He claimed to be stateless and a Bidoon. He claimed that he had been living in Kuwait. He claimed that he would be arrested, detained and subjected to cruel and inhumane treatment if he returned to Kuwait because he is a Bidoon and had left Kuwait illegally.
On 14 April, 2012 an officer of the Department of Immigration and Citizenship carried out the protection obligations determination and found that the applicant was not a person to whom Australia owed protection obligations or who engaged the complimentary protection provisions of the Act. The applicant’s claims were automatically referred for independent protection assessment.
On 23 August, 2012 the applicant attended a hearing in Darwin for the Independent Protection Assessment. On 28 August, 2012 an invitation to provide information was given to the applicant’s representative. That invitation sought that certain documents be translated into English.
The applicant iterated his claims on several occasions. The first claims were made in the “bio data forms” completed by him with the assistance of an interpreter on his arrival. The second occasion was his entry interview on 3 March, 2012 also completed by him with the assistance of an interpreter. The third occasion was a written statutory declaration made on 17 March, 2012 and the fourth was his interview for the purposes of the Independent Protection Assessment in Darwin on 23 August, 2012.
The applicant claimed that he is stateless and had been born in Kuwait. His religion is Sunni Muslim and his ethnic group was claimed to be variously Arab and/or Bidoon. He seeks Australia’s protection because he claimed that he will be deprived of his basic rights in Kuwait because he is stateless.
He claimed that he participated in a protest in Kuwait to seek rights for Bidoons in March, 2011. The protest was peaceful but Kuwaiti Private Forces and the police attacked the protestors. The applicant claimed to have left the protests as soon as the violence started.
The applicant was working at the time although he described his employment as “on the black market”. He said that the next day at work his boss and some of his friends gathered for a regular social function. Some of the attendees worked for the police and the Kuwaiti authorities. He claimed that they knew he was involved in the protests and he was beaten and stabbed in the leg (although in his statutory declaration he said he was stabbed in his foot).
In his entry interview, the applicant claimed that after being beaten and stabbed by his employer’s friends, each time he “came over after that they would swear at me and abuse/insult me”. He claimed he was fired from his job.
In his statutory declaration he claimed that after the incident with his employer’s friends, the head of the family for which he worked told him that he could not protect him anymore as his friends were powerful government people. They told his boss that they no longer wanted the applicant to work there anymore. He said that his employer did not sack him but stopped him from working there and “told me it would be for my benefit that I leave as these were powerful people and therefore I resigned”. This occurred in October, 2011 some seven months after the applicant attended the relevant protest.
The applicant claimed to have left Kuwait using a fake passport issued in Kuwait in someone else’s name. It had a photograph of someone else on it. He claimed that he would be arrested, imprisoned and tortured if he returned to Kuwait because he is a stateless Bidoon and he left Kuwait illegally using someone else’s passport. In his interview with the second respondent he suggested that his detention upon return to Kuwait would result in his death.
The second respondent’s decision
After setting out the legal framework against which the applicant’s claims needed to be considered, and the factual claims made by the applicant, the second respondent considered the independent information available concerning the plight of Bidoons in Kuwait (paras. 54 – 63 of the second respondent’s reasons).
The second respondent found that:
a)the applicant is a stateless person whose habitual place of residence was Kuwait;
b)he resided in Kuwait from his birth until his departure in November, 2011;
c)he departed Kuwait on a false passport;
d)he has no right to enter and reside in any other country;
e)he is stateless because he was born to a non Kuwaiti father;
f)his statelessness was not “for reasons of his race, religion, nationality, political opinion or membership of any particular social groups”;
g)there exists in Kuwait a particular social group known as Bidoon of which the applicant is a member;
h)the social group of Bidoons is cognisable in Kuwaiti society by their lack of citizenship status and consequential restricted entitlement to state benefits such as:
i)public education;
ii)driver’s licences;
iii)passports; and
iv)public sector employment;
i)further, there exists in Kuwait another particular social group of “documented Bidoons” of which the applicant is a member;
j)the social group of documented Bidoons is cognisable in Kuwaiti society by:
i)the Executive Committee for Illegal Residents having a record of their presence in Kuwait;
ii)them having been issued a security card;
iii)their entitlement to:
(1)residence rights in Kuwait;
(2)apply for an Article 17 passport;
(3)apply for a driver’s licence; and
(4)obtain a work permit from the Ministry of Social Affairs and Labour.
k)The applicant had undertaken paid work in Kuwait since 1993 and by reason of his documented status, he was entitled to obtain a work permit from the Ministry of Social Affairs and Labour so he could be hired in the public or private sectors.
The second respondent found that any discrimination that the applicant had experienced in employment matters had not threatened his capacity to subsist because:
a)the applicant had undertaken paid employment since 1993;
b)he was a documented Bidoon and therefore able to obtain a work permit to allow him to work in both the public and private sector; and
c)in his latest employment which he had commenced in 2005 he was earning 70 dinars a month and paying rent for a privately rented residence that was less than a third of his monthly earnings.
The second respondent expressly rejected the applicant’s claim that his most recent employment “was on the black market” because:
a)penalties applied to those hiring undocumented Bidoons;
b)the applicant’s most recent employer’s friends included “police and powerful government people” who knew of the applicant’s employment and Bidoon status.
The second respondent found that the applicant had not, in the past, been denied the capacity to earn a livelihood of any kind such as to threaten his capacity to subsist for the purposes of s.91R(2)(f) of the Act because:
a)the applicant had undertaken paid employment since 1993; and
b)he was a documented Bidoon and therefore able to obtain a work permit to allow him to work in both the public and private sector.
The second respondent rejected the applicant’s claim that he was an undocumented individual from Kuwait and was a person with no identity in Kuwait. The second respondent did not accept that the applicant had ever been denied a driver’s licence. The second respondent found that the applicant is, and will continue to be, entitled to obtain a driver’s licence in Kuwait as a documented Bidoon.
The second respondent accepted the applicant’s claims that if he seeks medical treatment at a hospital he has to pay for medical treatment. However, he made no claim of ever being denied medical treatment or that as a consequence of having to pay full fees for medical care those costs threatened his capacity to subsist. The second respondent found that the applicant had not, in the past, been denied access to basic services such as medical care which threatened his capacity to subsist so as to engage s.91R(2)(e) of the Migration Act.
The second respondent was not satisfied that there was a real chance, now or in the reasonably foreseeable future, that in Kuwait the applicant:
a)would be denied the capacity to earn a livelihood of any kind such as to threaten his capacity to subsist;
b)would be denied access to basic services (such as medical care) such as to threaten his capacity to subsist;
c)will experience significant economic hardship such as to threaten his capacity to subsist; or
d)will suffer any other type of serious harm contemplated by s.91R of the Act.
The second respondent concluded that the applicant was of no particular interest to the Kuwaiti authorities notwithstanding that he had participated in the protest in March, 2011. The second respondent reached that conclusion because it was not until October, 2011 that his employer informed the applicant that the employer’s friends (that included police and people from government authorities) did not think that the applicant should work for his employer any longer. The second respondent took into account independent information to the effect that “dozens of protesters were arrested some being detained for weeks on end” following the relevant protests. The applicant, however, was not arrested and did not claim to have ever been detained by the police. The second respondent did not think that there was “anything more than a fanciful chance now or in the reasonably foreseeable future [that] the Kuwaiti authorities will take any adverse interest in” the applicant by reason of his attendance at the protest in March, 2011.
The second respondent rejected the applicant’s claims that as Bidoon he has no rights. The second respondent found that “non-citizens and stateless persons” do not enjoy the rights and benefits available to Kuwaiti citizens, in matters including the issue of marriage and death certificates and free access to state-sponsored schools and health care. However, the second respondent did not accept that Bidoon were without rights. In particular documented Bidoon, as the second respondent found the applicant to be, had the qualified rights I have set out above. Whilst the imposition of restrictions or qualifications on those rights might be seen as discrimination or indeed, persecution, the second respondent found that in the particular circumstances any discrimination that the applicant had experienced in the past or will experience in the reasonably foreseeable future did not, and will not, involve serious harm as set out in s.91R(1)(b) of the Migration Act.
The second respondent accepted that the applicant departed Kuwait on a false passport. However, based upon the independent information available to the second respondent, the second respondent rejected the applicant’s claim that he will be arrested on return to Kuwait on account of his use of a false passport to leave and his unsuccessful application for asylum during his absence. The second respondent considered the proposition that failed asylum seekers would be dealt with harshly by the Kuwaiti authorities. The second respondent found that there was nothing more than a fanciful chance now or in the reasonably foreseeable future that the Kuwaiti authorities would take any adverse interest in the applicant by reason of his attendance at the protest in March, 2011 or his use of a false passport to depart Kuwait and that he claimed asylum during his absence. The second respondent concluded that there was nothing more than a fanciful chance now or in the reasonably foreseeable future that the applicant will be imprisoned and face torture and death on his return to Kuwait.
Whilst the second respondent was satisfied that the applicant was genuinely worried about his prospects upon his return to Kuwait, the second respondent did not accept that the applicant’s “fear of Refugee Convention based persecution, now or in the reasonably foreseeable future, is well founded”.
The second respondent considered the applicant’s claims for complementary protection pursuant to s.36(2)(aa) of the Migration Act. For the reasons set out in paragraphs 84 – 91 of the second respondent’s reasons for decision, the second respondent was not satisfied that there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kuwait, there was a real risk that he would suffer significant harm for the purposes of s.36(2)(aa) of the Migration Act.
The grounds of review
The applicant’s arguments before me were not addressed by reference to any of the grounds of review set out in the application of review. I have set out a summary of the applicant’s arguments earlier in these reasons.
The applicant’s first main contention appears to be that “the second respondent for all practical purposes was distracted by the examples [of serious harm] referred to in s.91R(2) [of the Migration Act] and did not apply the proper definition of persecution (eg paragraph 78 p 209)”.
As the applicant argued, s.91R(2) does not define persecution, but rather it sets out a non-exhaustive list of examples of serious harm for the purposes of subsection 91R(1)(b) of the Migration Act.
The second respondent was satisfied that by reason of the applicant’s membership of the social groups described as Bidoon and documented Bidoon, he would suffer persecution in that his right to work carried qualifications, his right to obtain a driver’s license carried qualifications, he had no right to citizenship or public education and had no right to subsidised or free medical care: statement of reasons at paragraphs 69, 70, 73, 75 and 78. The second respondent was also satisfied that the applicant had suffered physical ill-treatment including being beaten by his former employer’s friends, and being either stabbed or cut on his foot with a knife. The second respondent accepted that the applicant had been sworn at and insulted by his former employer’s friends and that those things occurred because of the applicant’s attendance at the protest in March, 2011 about the recognition of Bidoon rights.
However, the second respondent went on to consider whether by reason of that persecution, the applicant had, or was likely to suffer serious harm. In doing so, the second respondent had regard to the examples set out in s.91R(2), but not exclusively so.
In paragraph 72 of the statement of reasons the second respondent specifically found that any past discrimination that the applicant may have experienced in employment matters had not threatened his capacity to subsist. That finding was directly relevant to the example given by s.91R(2)(f) as the second respondent identified in that paragraph.
In paragraph 73 of the statement of reasons, the second respondent considered the applicant’s lack of access to free or state sponsored medical treatment that the applicant suffered by reason of his membership of the social groups described above. The conclusion reached by the second respondent was that the applicant had not, in the past, been denied access to basic services such as medical care which threatened his capacity to subsist. That was a relevant enquiry because it addressed the example given in s.91R(2)(e) of the Migration Act.
In paragraph 74 of the statement of reasons the second respondent concluded in relation to the issues of employment and access to medical care: “I am not satisfied that there is a real chance now or in the reasonably foreseeable future that he will be denied the capacity to earn a livelihood of any kind such as to threaten his capacity to subsist, or access to basic services (such as medical care) threatening his capacity to subsist, or that he will experience significant economic hardship threatening his capacity to subsist, or suffer any other type of serious harm contemplated by s.91R of the Act.” The reference to s.91R of the Act is important because it is not merely a reference to s.91R(2) given the matters recorded by the second respondent at paragraph 11 of the statement of reasons. That discussion concerned the second of the four key elements to the Convention definition of refugee identified by the second respondent. It is clear that the second respondent was not confining the relevant enquiry to a consideration of the examples set out in s.91R(2) alone, nor was the second respondent distracted by that subsection.
In paragraph 76 of the statement of reasons the second respondent considered whether it was likely that the applicant would suffer serious harm by reason of being persecuted for his involvement in the protest in March, 2011. The second respondent rejected the applicant’s contention that he has received adverse attention from the authorities by reason of his involvement in that protest. The second respondent expressly considered the actions directed towards him by the applicant’s former employer’s friends who on the applicant’s case held positions with the police and the Kuwaiti authorities. The second respondent found that those actions were taken by those people in their private capacities and not whilst they were performing any official functions.
In paragraph 77 of the statement of reasons, the second respondent considered whether the applicant’s experiences in 2011 when he was beaten by his former employer’s friends, had his foot cut by a knife and was abused and insulted by them amounted to serious harm. The second respondent concluded that those matters did not involve “any of the non-exhaustive examples of serious harm set out in subsection 91R(2) of the Act, including a threat to his life or liberty, significant physical harassment and/or significant physical ill-treatment are set out in subparagraphs 91R(2)(a), (b) & (c) of the Act”. The second respondent specifically found “… the totality of [the applicant’s] treatment by his former employers’ (sic) friends, including their harassment and physical ill-treatment of him, combined with a stated disapproval of him to this (sic) former employer which led to his voluntary cessation of employment, did not involve serious harm to him set out in subparagraph 91R(1)(b) of the Act.” The second respondent found that “this circumstance (of conflict with his past employer’s guests) is an isolated, one-off occurrence”.
In my view, it is clear from paragraph 77 of the statement of reasons that in respect of the treatment of the applicant by his former employer’s friends the second respondent did not focus solely on the examples set out in s.91R(2) of the Act but considered the appropriate enquiry, namely whether the relevant persecution involved serious harm to the applicant for the purposes of s.91R(1)(b) of the Act. The findings made by the second respondent about those matters were findings of fact clearly open on the evidence before the second respondent.
Similarly in paragraph 78 of the statement of reasons, the second respondent considered the applicant’s claims “…that as a Bidoon he has no rights”. The second respondent rejected that proposition and, after recording that he does not enjoy the same rights and benefits that are otherwise available to Kuwaiti citizens, the second respondent did not accept that “any discrimination he has experienced in the past, or will experience now or in the reasonably foreseeable future, involve serious harm as set out in subparagraph 91R(1)(b) of the Act.”
In my view it is clear from paragraph 78 of the statement of reasons that the second respondent considered that the persecution that the second respondent had elsewhere discussed in the statement of reasons would not result in the applicant suffering serious harm for the purposes of s.91R(1)(b) of the Act. That is the appropriate enquiry for the second respondent to have made. The second respondent’s conclusions in respect of that matter are conclusions of fact that were open on the evidence.
In my view, the second respondent has not misconstrued s.91R(1) or s.91R(2) of the Migration Act. The second respondent has considered the matters to which attention is directed by each of those subsections and made findings of fact about the relevant matters raised by those subsections. The second respondent specifically addressed s.91R(1)(b) and its requirement that any harm that might befall a putative refugee by reason of persecution be serious harm for the purposes of the Migration Act and the Migration Regulations.
The second argument for the applicant is that the second respondent failed to appreciate that the applicant was constructively dismissed from his employment for the reason that he was a Bidoon who had participated in demonstrations. This argument is linked to the first in that the applicant argues that:
a)His constructive dismissal was persecution for the purposes of the Migration Act;
b)His dismissal involved serious harm because he was deprived of his right to earn a livelihood;
c)Any future employment would depend upon him desisting from voicing his concerns about the treatment of Bidoon in Kuwait; and
d)The second respondent paid no regard to the proposition that his dismissal from employment was persecution or serious harm for the purposes of the Act.
That the applicant was constructively dismissed from his employment is, it was argued, persecution for the purposes of both the Migration Act and the Refugees Convention because it amounted to a denial of the applicant’s capacity to earn a livelihood.
As to this matter, the second respondent made the following findings of fact in paragraph 77 of the statement of reasons:
a)the applicant’s employer did not sack him but told him it would be better for him if he left and therefore he resigned;
b)it was the applicant’s decision to terminate his employment;
c)the actions of the applicant’s former employer’s friends did not force the applicant to resign his employment; and
d)their actions have not denied to the applicant the capacity to earn a livelihood of any kind.
It is true enough that the second respondent did not expressly consider the proposition that the applicant had been “constructively dismissed” from his employment. The concept of a constructive dismissal from employment is well entrenched in Australian law and is traced by the author of the article Constructive Dismissal of Employees in Australia (1994) 68 ALR 494 to two decisions, namely Roberts v The Prince Alfred College (1979) 46 SAIR 598 and Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers’ Guild re Dismissal [1979] AR (NSW) 392. But a finding of constructive dismissal is a factual conclusion, or at the very least a conclusion of mixed fact and law, arrived at on the basis of other factual findings made by the relevant court or tribunal.
In essence, the applicant’s argument must be that the second respondent failed to properly discharge its function because on the basis of the factual findings made, the second respondent ought to have concluded that, as a matter of fact, the applicant had been dismissed from his employment.
But the second respondent’s statement of reasons (at paragraph 77) reveals that the underlying facts were fully considered. The second respondent recorded that the applicant’s resignation from his employment was at the instigation of his employer who “told him it would be better for him if he left”. The applicant did not claim that if he did not leave his employment as suggested, he would have been dismissed. The second respondent’s statement of reasons proceeds on the basis that the applicant’s claims about his employment and the conduct of his former employer’s friends were true.
I accept the first respondent’s submission that on a proper reading of paragraph 77 of the second respondent’s statement of reasons, it is clear that the second respondent considered the applicant’s evidence about his employment and his resignation as a whole and found that the circumstances of conflict with his former employer’s friends was an isolated, one-off occurrence. I accept that the second respondent was not satisfied that the persecution involved serious harm.
In any event, even if that analysis is erroneous, the finding by the second respondent that the actions of the applicant’s former employer’s friends and the former employer did not involve systematic conduct as required by s.91R(l)(c) was a finding of fact that was open to the second respondent on the evidence.
In my view, this ground of review has no merit.
The third main argument for the applicant is that the second respondent has asked the wrong question. The applicant argues that:
a)the second respondent asked the wrong question in considering whether the harm the applicant would suffer was because he was a stateless person rather than because he was a Bidoon.
b)The second respondent failed to appreciate the causal link between the applicant being stateless because he was a Bidoon and that because he was a stateless Bidoon he was persecuted. Hence the second respondent asked the wrong question being – was the applicant persecuted because he was stateless? Rather the second respondent ought to have asked the question – was the applicant persecuted, among other things, because he was stateless and was that situation of being stateless caused by being Bidoon? Alternatively was the applicant persecuted because he was a stateless Bidoon?
The second respondent found (at paragraph 66 of the statement of reasons) that the applicant’s statelessness was because his father was not a Kuwaiti citizen. At paragraph 77 of the statement of reasons, the second respondent found that the applicant’s statelessness is not for reasons of his race, religion, nationality, political opinion or membership of any particular social groups. The second respondent continued: “From this it follows that his lack of Kuwaiti citizenship does not come within the scope of the Refugee Convention, and cannot be considered persecution in the Convention sense”.
The applicant argues that the second respondent’s finding that his statelessness is not for reasons of his race, religion, nationality, political opinion or membership of any particular social group has no foundation in law. The applicant submits that it is clear that the reason he is stateless is that he is a Bidoon.
However, the applicant’s arguments draw a distinction between stateless people in Kuwait and Bidoon in Kuwait. That is to say, the applicant argues that he is stateless because he is Bidoon. So much appears from the way in which the applicant frames the question that he argues the second respondent ought to have asked. But the effect of the independent information tendered to the second respondent by the applicant’s advisor (and accepted) is that there is no such distinction. The second respondent accepted that the classification of people in Kuwait, following the Nationality Law of 1959 is that a third of Kuwait’s citizens were recognised citizens, another third were granted partial citizenship rights and the remaining third were classified as Bidoon Jinsiya, which translates to “without citizenship”. It is the circumstance of being stateless that qualifies one as being Bidoon, not the other way around. The terms “stateless” and “Bidoon” are, on the evidence accepted by the second respondent, interchangeable. The finding by the second respondent that the applicant was stateless because his father was not a Kuwaiti citizen was in accordance with the evidence accepted by the second respondent. The applicant was stateless, or Bidoon, because his father was not a Kuwaiti citizen.
The questions that the applicant argues the second respondent ought to have asked, namely: was the applicant persecuted, among other things, because he was stateless and was that situation of being stateless caused by being Bidoon. Alternatively was the applicant persecuted because he was a stateless Bidoon? (my emphasis) are not the right questions. They are not the right questions because the second phrase in the first question posed by the applicant: “and was that situation of being stateless caused by being Bidoon” is meaningless because in the present context, “stateless” and “Bidoon” are synonyms. The expression “stateless Bidoon” in the alternative question is a tautology.
The second respondent considered whether the applicant’s lack of Kuwaiti citizenship and, by implication the disadvantages that flow from that in Kuwait, was for a Convention reason and concluded that it was not.
However, as I have set out above, the second respondent went on to consider whether the applicant was a member of any particular social groups and found that he was. The second respondent found that he was a member of the social group constituted by stateless people or Bidoon. The second respondent also found that he was a member of the social group constituted by documented Bidoon. The second respondent accepted that members of that social group were subjected to various forms of persecution and discrimination, but concluded that the applicant was unlikely to suffer serious harm as a result of that persecution.
In my view, no legal error is identified by the applicant on this ground.
The applicant argues that no proper consideration was given to his claim that he would suffer persecution as a failed asylum seeker if he was returned to Kuwait. He argued that there was a real chance of persecution because he would be returned without a passport and had left Kuwait on the passport of another person.
In paragraph 46 of the statement of reasons, the second respondent commenced to survey the independent information available to the second respondent concerning the treatment of Bidoons who had departed Kuwait illegally but then returned. The second respondent noted that the information “is mixed”. The second respondent noted that the Kuwaiti authorities may prohibit a person’s re-entry due to that person having no entitlement to enter and the person may be held in detention for an indefinite period. Alternatively the second respondent recorded that there is information that Kuwaiti authorities have been compelled to admit forcibly returned Bidoon and yet other instances where it appears the authorities may have turned a blind eye to the practice of travel in and out of Kuwaiti on forged travel documents.
The applicant argues that the second respondent was in error to determine that there was no real chance that the applicant would suffer persecution (and serious harm) should he be returned to Kuwait. He argues that the second respondent’s findings demonstrate that there is a real chance that the applicant will be detained on arrival in Kuwait.
The applicant correctly identifies that the second respondent determined that detention of the applicant upon his return to Kuwait (if it occurred) would be because the applicant is a non-citizen of Kuwait with no enforceable right of entry. He argues however, that the second respondent ought to have found that he has no right of entry because “he is a Bidoon”. But as I have indicated above, it is a distinction without a difference. In any event, the inability to re-enter a country where a person was habitually resident because that person has no right of entry does not, without more, constitute persecution for the purposes of the Migration Act and the Convention: Diatlov v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 313.
The final ground argued by the applicant asserts that the second respondent did not properly apply the complementary protection criteria in s.36(2)(aa) of the Act.
The Act defines significant harm in s.36(2A) of the Act and torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s.5 of the Migration Act. The applicant argues that the detention of the applicant in the event that he is returned to Kuwait will be cruel or inhuman treatment for the purposes of s.5 of the Migration Act.
However, the second respondent found that if the applicant was detained and held at Talha Deportation Centre (the Centre where he would likely be held if he was detained at all), his detention would not be significant harm for the purposes of s.36(2)(aa) of the Migration Act by reason of the conditions at that Centre. The second respondent also found that if the applicant was detained, it would only be until he could be issued with a current security card to which he was entitled as a documented Bidoon.
Conclusion
None of the grounds relied upon by the applicant in his application, or the written submissions delivered on his behalf establish that the tribunal’s decision is affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 September 2013
Associate:
Date: 3 September 2013
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