Ali v Minister for Immigration & Multicultural Affairs [2000] FCA 329

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs

[2000] FCA 329

ALI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 164 of 1999

CARR J

21 MARCH 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 164 OF 1999

BETWEEN: RAKAN AL MOOZE MEHSEN ALI

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 21 MARCH 2000

WHERE MADE: PERTH

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 164 OF 1999

BETWEEN: RAKAN AL MOOZE MEHSEN ALI

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 21 MARCH 2000

PLACE: PERTH

REASONS FOR JUDGMENT

Introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 10 December 1999, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who arrived in Australia on a Saudi Arabian passport in the name of Mohammed Al-Zahrani on 7 April 1999, claims to be in fact Rakan Al Mooze Mehsen Ali or Rakan Al Mooze Mehsen Ali Al-Anezi, a stateless Bedoun whose country of habitual residence is Kuwait. On 23 April 1999 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). On 21 June 1999 a delegate of the respondent refused to grant the applicant a protection visa and on 25 June 1999 the applicant sought review of that decision by the Refugee Review Tribunal.

Application for an Order of Review 2 The applicant was unrepresented. His application is in a form common to several other applications recently lodged by applicants from the Port Hedland Detention Centre. The grounds of the application were stated as follows: "(a) The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. (b) The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it."

Did the Tribunal Err in Law? 3 The applicant being unrepresented and not being able to speak English was, not surprisingly, unable to identify the legal errors which, in his application, he asserted had been made by the Tribunal. 4 The applicant also submitted a lengthy written document dealing with matters of fact and complaining about the Tribunal's findings. That material did not assist the Court in identifying what the applicant claimed, in his standard form of application, to be errors of law. 5 Accordingly I have examined the Tribunal's reasons to see whether they reflect any error of law of the type referred to in the grounds of application.

The Decision of the Tribunal 6 In its reasons for decision the Tribunal first set out the relevant article of the Refugees Convention and the law relating to the interpretation of that article. In my view, it correctly stated the law. 7 The Tribunal then listed some 28 publications from which it stated that it had reached its understanding on the issue of residency rights of Bedoun and Kuwaiti non-citizens in Kuwait. It then set out nearly ten pages of its understanding of those matters before turning to the applicant's claims and evidence. Those claims were set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal. The applicant's claims, in summary, were that he was stateless in Kuwait and denied rights and privileges of citizenship there, that he and his father were and are seen as Iraqi collaborators. Because of this he had been arrested and detained three times in 1992, 1994 and 1997 and had been tortured on those occasions. He claimed that the police were also "after him" because he had been illegally married to an Iraqi woman. Because he was being hunted by police, so he claimed, he had fled Kuwait with the assistance of an agent who had procured him a false Saudi passport. The applicant had flushed that passport down a toilet at Sydney Airport on arrival in Australia. It had been recovered by Customs officials, intact, except for the first three pages including the page with the photograph and personal details which had been torn off and disposed of in some other way. 8 The Tribunal then summarised the evidence given by the applicant at the hearing before it on 1 September 1999 which included the tender of nine documents (listed at p 16 of its reasons). The documents included the applicant's birth certificate, school certificates, his driver's licence, some pages from what the applicant claimed was his father's passport (but which did not disclose the country of issue) and other documents of an official nature. 9 It appears from the Tribunal's reasons that it had not had the country information (referred to above) at the time of the first hearing. Some of this information related to developments in Kuwait since the applicant's departure. When it received this information the Tribunal decided to call a second hearing and discuss all the information with the applicant. This was done at the further hearing on 5 November 1999. The applicant was asked to respond to that information, and did so. 10 The Tribunal then set out its findings and reasons which occupied nearly eighteen pages. To start with, it acknowledged the barriers of language and cultural differences which can affect an applicant's ability to provide a coherent consistent and plausible account. It also referred to the need, when making adverse findings about credibility of an applicant, to take into account the possibility that those findings might be wrong. It noted that a decision-maker was not required, as a matter of law, to accept uncritically any and all allegations made by an applicant. It then said this: "It is with an appreciation of all the considerations noted above that the Tribunal comes to the conclusion that the applicant's claims of facing persecution simply for being a Kuwaiti Bedoun and of being pursued by Kuwaiti authorities for being a suspected Iraqi collaborator and spy, lacked credibility. For the reasons which follow, the Tribunal has no doubt that the applicant has fabricated claims in the hope of ensuring success of his application for a protection visa." 11 The Tribunal then engaged in a meticulous examination of the applicant's claims, starting with his claim of alleged persecution for being a member of a particular social group of stateless Kuwaiti Bedoun. The Tribunal accepted the applicant's claim that he was a Bedoun of Kuwait, born in Kuwait, and son of a Kuwaiti-born Bedoun. Then it stated its reasons for its "strong doubts" that Bedoun constitute a particular social group in Kuwaiti society. Its reasoning was interlaced with references to the relevant Australian law and some of the independent country information referred to above. The Tribunal then assumed, for the purposes of its reasoning, that Kuwaiti Bedoun did constitute a particular social group and examined whether the applicant faced persecution in Kuwait as a member of that group. It found, on the basis of various reports, that the applicant could gain Kuwaiti citizenship through a naturalisation process set up by the Kuwaiti authorities and that the motive of those authorities in setting up that process was not persecutory to Bedoun or a device for ousting them from Kuwait. It found that the situation would not change adversely in the foreseeable future. It made some further factual findings followed by strong credibility findings against the applicant, of which the following are examples: "6 In considering the applicant's individual circumstances, I find that he is eligible for naturalisation. He has a birth certificate stating that he is a Bedoun born in Kuwait. The certificate shows that he was born in 1973, which means that he also fulfils the second criterion of having been resident in Kuwait for 20 years (in his case, 26 years) without, on his own evidence, having left Kuwait in the interim. The applicant states that he is a Muslim, and the Tribunal notes that he speaks Arabic. Thus he qualifies for naturalisation on all grounds. In addition, although these are unnecessary, there are other factors in support of an application for naturalisation: his father had documented birth in Kuwait in 1934, which qualifies him and, by extension, his family for naturalisation; would have been registered in the 1965 census, which in itself automatically qualifies him for naturalisation (I do not accept the applicant's claim of November 15, 1999 that his father was not in the census because he was "in the Kuwaiti desert" as I am of the opinion that this claim is a further attempt by the applicant to falsely demonstrate that he would not be granted naturalisation and because I do not suppose that in carrying out its regular censuses Kuwait would ignore large areas of its territory and render a census meaningless); and has rendered "distinguished service" to Kuwait by having served for more than 10 years in the police force, and has employment records to prove this. For all these reasons (and because, for reasons given below, I do not accept the applicant's claims of being hunted by the authorities) I find that the applicant, both as an individual and as his father's offspring, is eligible for naturalisation. There is a lack of credibility in the applicant's responses at both hearings to the question of whether he and his father applied for naturalisation in or after 1996. At the first hearing he said he had not registered, then said that he had, along with the rest of his family. Then again he said that he had not registered because of the black mark against his name for being a spy. At the second hearing he was extremely reluctant to give a direct answer, preferring at every turn to recount stories of what had allegedly happened to other Bedoun. When pressed, he indicated that neither he nor his father had registered because of being thought to be Iraqi spies, but afterwards said that his father had registered in 1996 and been refused on grounds of being a spy. Apart from finding these answers incredible because of their inconsistencies, it is implausible that the Kuwaiti government would be refusing citizenship to people believed to be spies yet allowing them to remain at large. If one were to believe that applicant's claims, all Kuwaiti government departments had been alerted that he and his father were spies, yet he was never tried for espionage despite (if one were to accept his evidence) being detained and set free twice. This is fanciful. (The claims regarding detention are discussed below and have been found to lack credibility.) The applicant's subsequent answers that the authorities were only giving nationality to those whose mothers were Kuwaiti; that no Bedoun had been given nationality; and that individuals could not apply but only family units, are all inconsistent with independent evidence and I do not accept them. The answers were given in a manner that indicated that he was fabricating claims on the run to patch holes in his evidence. I am confident that the applicant, being knowingly eligible for naturalisation, has registered for naturalisation, that on the basis of his birth and residence in Kuwait he has either already been granted naturalisation or has been assured of that status, and that he has attempted to hide these facts in order to attempt to stay in Australia by means of a protection visa. I find it strongly implausible that a person who is stateless and who is offered the opportunity to become a naturalised citizen in the land of his birth and enjoy the maximum benefits available to citizens of as rich a country as Kuwait would not have applied for naturalisation as soon as the opportunity was offered, particularly given that he fulfils all the eligibility criteria. I consider that his attempt to gain Australian citizenship by means of a protection visa is for reasons unconnected with a need for protection in Australia. 7. The applicant indicated in general terms that Kuwaiti Bedoun faced the constant threat of arrest, detention and torture, and his witness, Mr Al-Behily, stated that Beedoun (sic) were arrested on grounds of being stateless whenever they were found on the street. I am not satisfied, on the independent evidence, that these general claims are credible." 12 The Tribunal then, for reasons which it gave, rejected the applicant's complaint about having to have his Bedoun marriage validated by a civil marriage certificate. It also gave reasons for rejecting the applicant's claim that the Kuwaiti police were pursuing him for having "illegally" married an Iraqi woman. It did so in these terms: "9. Neither do I accept that Kuwaiti police are after the applicant for having "illegally" married an Iraqi woman given his explanation of how he had married this woman according to accepted rites and had had the marriage certified to comply with the Government's requirements. I do not consider that such a marriage would be considered illegal and am of the view that the applicant has sought to fabricate a claim in this regard in order to bolster a claim for a protection visa." 13 Next the Tribunal considered whether the applicant would be unable to return to Kuwait. On the basis of evidence to which it referred, it concluded that after some questioning he would be granted re-entry to Kuwait. 14 The Tribunal then considered the applicant's claim that for leaving Kuwait illegally he would be imputed with an adverse political opinion and sentenced to life in gaol. It said this: "I have found no independent evidence to support the applicant's claim that in leaving Kuwait illegally he would be imputed with an adverse political opinion and be sentenced to life in jail, and therefore I am not satisfied that this claim is credible. It also appears to be at odds with the applicant's own evidence, given earlier to the Tribunal, that he left Kuwait "legally" using a Saudi passport. I am of the opinion that the claim of an imputed political opinion in this regard has been fabricated to boost his application for a protection visa after being confronted with independent evidence which was not favourable to his claims. The applicant (together with his witness) has made many such sweeping claims, such as facing constant arrest and torture. In any event, I consider that the applicant left Kuwait on his own Kuwaiti-issued passport and therefore that his departure was legal and sanctioned. As stated before, I find that he could obtain assistance from UNHCR if he needs such assistance in re-entering Kuwait." 15 The Tribunal then considered the applicant's claim that he would face persecutory conditions during the period in which his claims for naturalisation were being considered. It referred to independent advice which did not suggest that Bedoun as a class faced discrimination regarding employment during that period. This was after having referred to a cable from the Australian Department of Foreign Affairs and Trade which stated that some Bedoun might experience difficulties in finding employment. 16 Finally, the Tribunal turned to the applicant's claims of facing persecution as an Iraqi spy and collaborator. The applicant claimed to have been detained in 1992, 1994 and 1997 as a suspected spy and collaborator, and tortured on each occasion while in such detention. The Tribunal referred to independent country evidence on this matter and also to particular aspects of the applicant's evidence as the basis for rejecting the applicant's claims. It gave its reasons for finding that the claim of being detained in 1992 was implausible. The applicant claimed to have been arrested for a second time in 1994 because the authorities had come to arrest his father for spying and, finding his father paralysed, had decided to arrest the applicant instead, for spying. The Tribunal gave its reasons for rejecting both those claims of detention and did the same in relation to the third claimed detention in 1997. It noted inconsistencies in the applicant's evidence in relation to the 1997 incident. 17 At p 39 of its reasons the Tribunal said: "In sum, there is a lack of credibility in the applicant's claims of being detained thrice and of having escaped the third time. Given that I do not accept his claim of having escaped from detention in 1997, it follows that I do not (sic) his claim of having been forced into hiding after that for two years and of having to escape Kuwait for fear of re-apprehension by the authorities. It is in any case particularly implausible that he could have evaded detection over that length of time given his evidence that his nine-person family had followed him from place to place in hiding. The applicant's claim that by saying his family he had meant only his wife appeared to be another example of him changing his evidence to plug holes in his claims. It is also at odds with his other claim that his wife had been forced to flee Iraq in 1997 for fear of arrest. I do not accept that the applicant's wife had been forced to flee Kuwait for fear of being tarred with her husband's spying charge since I do not accept that he was detained and charged with espionage. Given the lack of credibility in the applicant's evidence I am not satisfied that she ever left Kuwait. Given the applicant's evasiveness about whether or not his baby had Iraqi citizenship if born in Iraq with an Iraqi mother and a purported Iraqi father (via the claimed false military ID card) I am not satisfied that any of his evidence about his wife and baby being in Iraq is credible. I am of the opinion that they are both in Kuwait. Summary of Findings: I find that the applicant does not face persecution for reason of being a Kuwaiti Bedoun given independent evidence on their situation today, particularly the measures set up for Kuwaiti Bedoun to register for naturalisation and rid themselves of their stateless condition. I find that the applicant as an individual is eligible for naturalisation and I consider that, contrary to his claims, he has registered for naturalisation or already been granted Kuwaiti citizenship. Given this, I consider that he has come to Australia for reasons other than a need to seek protection from harm. I find that there is a lack of credibility in the applicant's claims regarding espionage and detention, and therefore I do not accept that such factors, or his marriage, would have hindered his application for naturalisation. I do not accept his claims regarding adverse political opinion imputed to illegal exit from Kuwait. For all the reasons given in detail above I am not satisfied that the applicant has a well-founded fear of persecution in Kuwait and that he is owed protection under the Convention." 18 In my opinion, there is nothing in the Tribunal's reasons which indicates that the Tribunal either incorrectly interpreted the applicable law or incorrectly applied that law to the facts as found by it, as claimed in Ground (a) of the application. If Ground (b) is a ground of review, which I doubt, then it has not been made out. There was ample evidence to support the Tribunal's findings of fact. It was clearly open to the Tribunal to disbelieve the applicant's account of what had happened to him in Kuwait. The Tribunal's reasons do not disclose that it failed to consider the evidence before it. In my view, the Tribunal did not err in law. For those reasons, the application for review will be dismissed, I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate: Dated: 21 March 2000 The applicant appeared for himself

Counsel for the Respondent: Mr P R Macliver

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 21 March 2000

Date of Judgment: 21 March 2000