DZABG v MIAC

[2012] FCA 827

FEDERAL COURT OF AUSTRALIA

DZABG v Minister for Immigration and Citizenship [2012] FCA 827

Citation:		DZABG v Minister for Immigration and Citizenship [2012] FCA 827
Appeal from:		DZABG v Minister for Immigration & Anor [2012] FMCA 36
Parties:		DZABG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		NTD 12 of 2012
Judge:		DOWSETT J
Date of judgment:		7 August 2012
Catchwords:		MIGRATION – appeal from decision of Federal Magistrates Court – conditions of application for protection visa – Kuwait resident – Independent Merits Review – restrictions on ability to practise religion openly
Legislation:		Migration Act 1958 (Cth)
Cases cited:		Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited
Date of hearing:	30 April 2012
Place:	Brisbane (via video link) (Heard in Darwin)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	Mr J Gibson
Solicitor for the Appellant:	Northern Territory Legal Aid Commission
Counsel for the First Respondent:	Mr T Anderson
Solicitor for the First Respondent:	Australian Government Solicitor
No appearance for the Second Respondent, at the hearing, she having indicated that she would abide any order of the Court, save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 12 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DZABG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	7 AUGUST 2012
WHERE MADE:	BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 12 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DZABG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	DOWSETT J
DATE:	7 AUGUST 2012
PLACE:	BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)

REASONS FOR JUDGMENT

LEGAL STRUCTURE

1. Generally, a non-Australian citizen who enters Australia at Christmas Island may not apply for a protection visa. However s 46A(2) of the Migration Act 1958 (Cth) (the “Migration Act”) provides that if the first respondent (the “Minister”)”:

   … thinks that it is in the public interest to do so, the Minister may, by written notice given to (such a person), determine that (the prohibition on visa applications) does not apply to an application by the person for a [protection visa].

2. A procedure has been developed for dealing with persons who wish to seek a favourable exercise of the Minister’s discretion.  He or she may request a Refugee Status Assessment (“RSA”) which will determine whether Australia has protection obligations to him or her.  An RSA is subject to review by a process described as an “Independent Merits Review” (“IMR”).  The IMR process may be the subject of judicial review.

   THE APPELLANT

3. On 26 March 2010 the appellant arrived by boat at Christmas Island, apparently having sailed from Indonesia.  He was previously a resident of Kuwait where he is described as a “Bidoon”.  The term is used to describe certain persons who reside in Kuwait but are not citizens.  Their status is uncertain.  This unfortunate position is apparently the result of the nomadic lifestyle adopted by their ancestors and somewhat arbitrary decisions taken at the time at which modern states, including Kuwait, were emerging in the Middle East.  The appellant arrived in Australia without valid travel documents, claiming to have thrown his passport overboard during the voyage from Indonesia to Christmas Island.  He sought an RSA.  The outcome was unfavourable.  He sought an IMR which was performed by the second respondent (the “Reviewer”).  She recommended that the appellant not be recognized as a person to whom Australia owed protection obligations.  The appellant applied in the Federal Magistrates Court for review of that decision.  He was unsuccessful.  This is an appeal from that decision.  The Reviewer has indicated that she will submit to any order made by the Court, other than as to costs.

   THE INDEPENDENT MERITS REVIEW

4. In the IMR the Reviewer considered a wide range of concerns raised by the appellant, many of which were addressed by the Federal Magistrate.  However it is not necessary that I deal with them in detail as the grounds of appeal are very narrow.  They are that:

   (1)(The Magistrate) erred in not finding that the Second Respondent misunderstood and/or misconstrued a criterion (being the test under the Refugees Convention) about which it had to be satisfied for the purposes of establishing whether the Appellant was owed protection obligations pursuant to s 36 of the Migration Act by failing to address the Appellant’s claimed restrictions on his ability to practise his religion openly with others or worship in public, and/or that he was not able to practise his religion openly with others in a like-minded community or worship in public as a Bidoon, and whether those restrictions amounted to persecution under the Convention.

   (2)His Honour should have held that the Second Respondent erred in the manner set out in Ground 1 of this Appeal. 

5. The appellant is of Arab ethnicity and a Shi’a Muslim.  The vast majority of the Kuwaiti population is Sunni Muslim.  The appellant’s case was, at all stages prior to the application to the Federal Magistrates Court, treated as being based upon fear of persecution because of his being a Bidoon.  However, in a statutory declaration which the appellant made on 6 June 2010, he referred to a religious matter with which I shall deal at a later stage.  In his initial interview, which took place on 15 May 2010, he provided a substantial amount of information concerning the circumstances in which he left Kuwait and travelled to Australia.  The appellant’s reasons for leaving Kuwait were as follows:

   Bedoons [sic] in Kuwait are persecuted and there is a campaign to eradicate or eliminate them.  Bidoons have no rights to get married, no right to education, to work.  We have no right of proper medical treatment and we cannot get medicine and medical treatment like other Kuwaiti people.  You have to pay.  For example for an x-ray you have to pay 70 Denar [sic].  Usually when people have a newborn baby you be happy but for us Bedoons [sic] we get worried b/c they can not get birth certificates and children are not eligible for immunisation.  Even if you want to have intercourse with your wife you get scared she will get pregnant.  When Bedoons’ [sic] drivers licence gets expired it is very difficult to renew unless you know someone to help you.  If you have a car accident with a Kuwaiti national definitely the Bedoon [sic] would be at fault regardless.  Bedoons [sic] have no right to register a motor vehicle.  The car could be registered under someone’s who is resident and the holder of a civil status card or under a Kuwaiti citizen’s card.  You have to negotiate with someone sometimes to register the car.

6. He was asked how the alleged discrimination affected his day-to-day life and as to whether he had been arrested or detained by police.  His response was:

   Of course we have fear and we cannot complain.  You have to say ‘OK’ all the time.  You cannot mention to them about the injustice and the unfairness. 

7. He was asked why he had chosen Australia as his destination and said:

   Australia is a country of freedom, justice and humanity, respecting human rights.  People always look for a better option for the education of the children.  This is the reason I came, I hope one day I will hold my first citizenship.

8. He was asked about his reasons for not wishing to return to Kuwait and said:

   It means you would be sending me to capital punishment.  My family, my parents, all family members will be hung if I go back.  I will not have any future.  It is all over maybe I will be the subject to torture.  It will cause major problems and pressure for my family members.  If I have to go back to Kuwait it will ruin my families [sic] future.  I prefer a/a fail rather than go back to Kuwait.

9. The appellant made many other allegations of discrimination and disadvantage, but they are not relevant to the present appeal.  In his original interview, as far as I can see, he made no reference to the question of the public practice of his religion. 

10. On 6 June 2010 the appellant made a statutory declaration in which he again addressed the discrimination and disadvantage suffered by the Bidoon in Kuwait.  It seems that in preparing it, he had assistance from a migration agent.  At paras 13, 14 and 15 he said:

    13I do not have any political rights.  I cannot have a political opinion.  I must keep my opinions to myself and keep my views private.  I cannot vote, I cannot represent anyone.  We cannot have any membership in any political party or groups.

    14I can however practise my religion however only behind closed doors.  I did not have a place to practise my religion.  There are no public places for Bedoons [sic] to practise our religion, only in our private homes. 

    15If I am returned home, I face the prospect of being imprisoned, tortured because I have made claims against Kuwait.  I fear that I will be beaten, looked down because of my claim.  I do not know how long I will be imprisonment. 

11. In the RSA the relevant officer did not identify any claim to religious discrimination.  He rather identified the appellant’s concerns as being based on his race, lack of nationality and fear that he would be denied basic rights, beaten and tortured if returned to Kuwait. 

12. In connection with the IMR, an organization called Australian Migration Options made submissions (dated 3 November 2010) on the appellant’s behalf.  It submitted that “at the heart of [the appellant’s] claims and his fears of persecution centre on his inability to qualify or be conferred citizenship from Kuwait, the only country he has ever lived in”.  Under the heading “Applicant’s Personal Information” it submitted that he is “of Arab ethnicity and is of Shi’a Muslim faith”.  However, as far as I can see, there is no other reference to religion in the document.  In the course of the IMR, the appellant was interviewed in the presence of his migration agent.  In her statement of reasons the Reviewer set out, in great detail, a wide range of assertions made by the appellant, concerning questions of identity, documentation, employment history, educational opportunities, medical services and availability of drivers’ licences.  Under the heading “Other claims”, the Reviewer said, at para 36:

    [The Appellant] states he can only practice his religion behind closed doors.  He does not have a place to practice his religion.  There are no public places for Bidoons to practice their religion, only in their private homes.  The reviewer accepts these claims and finds that while [the appellant] must practice his religion at his home as there are no public facilities available, the lack of public facilities does not involve serious harm to him.

13. At para 40 the Reviewer said:

    The reviewer has made findings regarding [the appellant’s] circumstances as a documented Bidoon pertaining to his employment, access to health services and education and car driver licensing.  Taking into account the other restrictions he faces, such as inability to register a car, avoid liability for car accidents he may be involved in, to publicly practice his religion, his lack of entitlement to birth and death certificates and to formally participate in political processes, the reviewer finds [the appellant] has not experienced disadvantage or adversity amounting to him suffering significant economic hardship, being denied basic services or of being denied the capacity to earn a livelihood.  …

14. In this passage the reviewer was apparently addressing the various aspects of “serious harm which are identified in s 91R(2) of the Migration Act”.  At paras 46, 47 and 48, the Reviewer said:

    46.It has been found that neither the individual or the cumulative impact of the restrictions [the appellant] experiences as a stateless documented Bidoon amount to serious harm, and that his home practice of his Shi’a Muslim faith does not involve any harm.  Regarding [the appellant’s] statelessness / lack of Kuwaiti citizenship, it has been found this does not come within the scope of the Refugee Convention, nor does any possible denial of [the appellant’s] re-entry by the authorities constitute persecution.  Finally, it has been found that there is not a real chance now, or in the reasonably foreseeable future, that [the appellant] will be seriously harmed (tortured, imprisoned or killed) or his family members’ green cards will not be renewed as a consequence of [the appellant’s] asylum claim in Australia, his method of departure from Kuwait and length of absence, and / or his inability to produce his Article 17 passport upon return.

    47.Consideration has been given to [the appellant] feeling tired and stressed out and concerned by his absence from his wife and children, and the reviewer accepts he is genuinely worried about his prospects upon return to Kuwait.  However, on the available information the reviewer is does not accept [the appellant’s] fear of Refugee Convention based persecution, now or in the reasonably foreseeable future, is well founded.

    48.Overall I find [the appellant] does not face a real chance of Convention related persecution in Kuwait, even cumulatively, now or in the reasonably foreseeable future.

    IN THE FEDERAL MAGISTRATES COURT

15. In the Federal Magistrates Court the appellant asserted that the Reviewer had failed to address the appellant’s claims to refugee status.  He asserted that as a Bidoon, living in Kuwait, he was not able to practise his religion openly, with others.  In so submitting, the appellant relied on para 14 of the statutory declaration which appears above.  Counsel for the Minister submitted to the Federal Magistrate that the Reviewer had treated the statement concerning religion in the statutory declaration as meaning that the Bidoon did not have access to public facilities in practising their religion, rather than that they were prevented from worshipping communally and in public.  At paras 12 to 15 in his “Contentions” document, counsel continued:

    12[The appellant] relies solely on the comment in the Statutory Declaration, which as noted at paragraph 8 above, was taken by the Reviewer to relate to an element of discrimination in that public facilities were not made available to Bidoons to practise religion.  As understood, she gave it proper consideration.

    13The Reviewer’s understanding of the [appellant’s] comment appears correct.  The comment was not to the effect that the [appellant] desired to practise his religion elsewhere, or to do so in community with others, that he was prevented from doing so elsewhere or in community with others for a Convention reason, or that he had modified his behaviour because he feared persecution for a Convention reason.

    14As the Court concluded in NABE at [68], no separate, distinct or additional claim that his beliefs involved practice in community with others and that he was restricted from doing so was “clearly articulated” or clearly emerges from the [appellant’s] Statutory Declaration or any other material before the [second respondent]. The Reviewer therefore had no obligation to consider the alleged claim … .

    15Even if the Reviewer could be said to be on notice of the alleged claim by virtue of the [appellant’s] comment in the Statutory Declaration, there were no established facts to support a claim by the [appellant] that he wanted to, but could not, practice his religion in community with others.

16. The Federal Magistrate considered the religious question in some detail at [69] to [104].  His Honour disposed of the matter on the basis that the appellant had not articulated, or clearly raised a claim of persecution for reason of his religion, and that it would be “an exercise in artificiality or creativity for me to construe such a claim at this stage”.

    ON APPEAL

17. On appeal to this Court the appellant submits that the Federal Magistrate erred in that the appellant had claimed that as a Bidoon in Kuwait, he was not able to practise his religion openly and with others.  At para 4 of his submissions on appeal, he submits that:

    In this context it is important to note several factual matters which bear upon the question of whether and in what form the issue of religious restriction was clearly raised before the [Reviewer]:

    (i)The [appellant] is a (documented) stateless Kuwaiti Bidoon of the Shi’a branch of the Muslim faith … .  Stateless Bidoons comprise 4% of the population of Kuwait … .

    (ii)Approximately 70-75% of citizens including the ruling family of Kuwait belong to the Sunni Branch of Islam … .

    (iii)There is restricted freedom of religion in Kuwait … .

    (iv)The Appellant’s evidence of “only being able to practise his religion behind closed doors”, which was accepted by the reviewer, was an established fact (for the purposes of one of the characterisations of the test laid down in NABE v Minister for Immigration and MultiCultural and Indigenous Affairs (2004) 144 FCR 1 at [68]) in relation to establishing whether a claim “emerges clearly from the materials before the Tribunal”.

18. In other words, the appellant submits that in para 14 of the statutory declaration he was asserting persecution by denial of his right to worship publicly and with his co-religionists.  He submits that he raised “a substantial, clearly articulated argument relying upon established facts”, a description derived from the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] (per Gummow and Callinan JJ), and applied by the Full Court (Black CJ, French and Selway JJ) in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68].

19. Even assuming that in para 14 of the statutory declaration, the appellant raised the question of religious discrimination, the nature of both the fear and the discrimination are quite uncertain.  The allegation seems to be of discrimination against the Bidoon, but it is not clear whether it is because they are Bidoon or Shi’a Muslim Bidoon.  There is no evidence of religious discrimination against either category, apart from the appellant’s ambiguous allegation and country information which suggests that religious discrimination occurs in Kuwait, without identifying any discrimination against the Bidoon.  For the appellant’s purposes, para 14 must therefore perform two functions.  First, it must raise the question of fear of persecution for reason of religion.   Second, it must comprise evidence which is sufficient to lead to the view that the appellant holds such a fear and that it is well-founded. 

20. As to the first question, para 14 must be considered in the overall context of the statutory declaration.  In paras 1-12 the appellant describes various areas in which the Bidoon are denied rights.  There are also references to fear of the consequences of such absence of rights, including lack of access to medical treatment, the need to pay for the education of children, employment disadvantage and other disabilities.  In para 13 the appellant asserts absence of political rights and claims that he must keep his views private, cannot vote, cannot represent anyone and cannot be a member of any political party or group.  However he says very little about how these disadvantages manifest themselves.  In para 14 he asserts that although he can practise his religion he does so “only behind closed doors”.  He then goes on to say that there is no public place in which the Bidoon may practise their religion, and that they must do so in their private homes. 

1. Paragraphs 1 to 14 are to be contrasted with para 15 in which the appellant clearly asserts a fear of persecution in Kuwait for reason of his claims against Kuwait.  Paragraph 16 relates to the circumstances in which he came to Australia and is not presently relevant.  In para 17 he asserts that although he has never been physically harmed, he is rejected and ostracized “by being who I am without respect and a humane treatment”.  The absence of any suggested fear of violence for reason of any matter other than his present claims suggests no real concern that he would suffer violence for any other reason, including the public practice of his religion.  The absence of any prior history of violence re-inforces this view.  Of course, these are matters for merits review.  Their only present relevance is that they provide the context in which para 14 must be construed.

2. When para 14 is read as a whole, it is clear that the appellant is complaining of the absence of suitable public facilities for worship and not restrictions on public worship.  No allegation of restriction on public worship was made at the time of the first interview.  No clear claim to that effect was made prior to the application for review in the Federal Magistrates Court.  The submission prepared by Australian Migration Options for the purpose of the IMR makes no reference to any such claim.  Even if such a claim were to be considered, there is little evidence to support it.  In the circumstances, the Reviewer was not obliged to consider any claim to fear persecution for reason of religion.

   ORDERS 

3. The appeal must be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       7 August 2012