FEDERAL COURT OF AUSTRALIA

BZADW v Minister for Immigration and Border Protection [2014] FCA 541

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.

REASONS FOR JUDGMENT

THE APPELLANT

1    The appellant was born in Kuwait. He is a stateless person. In Kuwait stateless persons are known as “Bidoon.” In November 2011, the appellant left Kuwait, using somebody else’s passport. He arrived at Christmas Island on 19 December 2011 and, on 17 March 2012 requested a Protection Obligations Determination (“POD”), claiming that as he was Bidoon and had left Kuwait illegally he would, if returned, be arrested, detained, and subjected to cruel and inhuman treatment.

2    The appellant is an “offshore entry person” as defined in s 5 of the Migration Act 1958 (Cth) (the “Act”). Section 46A provides that an application for a visa made by an offshore entry person, who is in Australia and is an unlawful non-citizen, will not be valid unless the Minister decides that it is in the public interest that the person be permitted to make the application. Pursuant to departmental arrangements a person who wishes to seek the favourable exercise of the Minister’s discretion may request a POD. If such determination is unfavourable, the application is referred for independent protection assessment (“IPA”).

3    The appellant received an unfavourable POD, and then an unfavourable IPA. He applied to the Federal Magistrates Court (as it then was) for constitutional writs and other relief, asserting that the IPA was not prepared in accordance with law. By the date of hearing, the Federal Magistrates Court had become the Federal Circuit Court. The application was unsuccessful. The appellant now appeals against that decision.

LEGISLATIVE FRAMEWORK

4    Pursuant to s 36(2)(a) of the Act a person may qualify for a protection visa if he or she is:

a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

For present purposes the appellant will be such a person pursuant to Art 1A(2) of the Refugee Convention if he:

… owing to 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, is unable or, owing to such fear, is unwilling to return to it.

Concerning the term “persecution”, s 91R relevantly provides:

(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.

(3)    For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

5    A non-citizen may also be granted a protection visa if he or she satisfies the requirements prescribed by s 36(2)(aa) of the Act. That provision will be engaged if the Minister is satisfied that Australia has protection obligations to that person. Such obligations arise if there are substantial grounds for believing that there is a real risk that he or she will suffer significant harm if removed from Australia to a “receiving country”. For present purposes significant harm is relevantly defined in s 36(2A) as including “cruel or inhuman treatment or punishment”, or “degrading treatment or punishment”. The s 36(2)(aa) regime is generally described as the “complementary protection provisions”.

THE POD AND THE ipa

6    In the appellant’s POD, a departmental officer concluded that the appellant was not a person to whom Australia owed protection obligations pursuant to either s 36(2)(a) or s 36(2)(aa) of the Act. As a result of this determination, an IPA was performed by the second respondent. For that purpose, on 23 August 2012, in Darwin, the second respondent interviewed the appellant. The appellant was also invited to provide any further information on or before 12 September 2012. The IPA was dated 2 November 2012. At [24] – [36] of the reasons, the Circuit Judge summarized its content as follows:

24.    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).

25.    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.

26.    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.

27.    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.

28.    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.

29.    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.

30.    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.

31.    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.

32.    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.

33.    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.

34.    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.

35.    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”.

36.    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.

Proceedings in the Federal Circuit Court

7    In his application for review the appellant raised nine grounds. However they were expressed in very general terms. At [3] the Circuit Judge identified the grounds addressed in argument as follows:

•    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];

•    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;

•    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, failed to take into account a relevant consideration, namely that the applicant was constructively dismissed from his most recent employment in Kuwait;

•    The second respondent failed to properly apply the complementary protection provisions of s.36(2)(aa) of the Migration Act 1958.

8    The appellant sought the following relief:

1.    An order for prohibition directed to the first respondent to restrain his giving effect to the recommendation of the Independent Protection Assessor (the second respondent);

2.    An order of mandamus directed to the first respondent, to appoint a different Independent Protection Assessor to make a recommendation as to the applicant’s status as a person to whom Australia owes protection obligations, requiring him/her to make that recommendation as to that status according to law.

3.    A declaration that the recommendation of the Independent Protection Assessor (the second respondent) was not made in accordance with law, by reason of the ground/s of this application;

4.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessor (the second respondent).

I have doubts as to the availability of much of this relief. However I need only consider the question of relief if the appeal is otherwise successful.

THE DECISION OF THE CIRCUIT JUDGE

9    The Circuit Judge understood the appellant to have submitted that, in some way, the second respondent was “distracted” from a proper discharge of her duties by the examples of serious harm referred to in s 91R(2). His Honour concluded that the second respondent accepted that the appellant had suffered discrimination, or perhaps persecution by virtue of his being Bidoon. However she had also concluded that such discrimination or persecution did not amount to serious harm within the meaning of s 91R. As to the specific complaint concerning the conduct of the appellant’s employer’s friends, the second respondent found that it was a “one off” event. Hence it was not “persistent” for the purposes of s 91R(1)(c). Finally, his Honour demonstrated that the second respondent had clearly understood the non-exhaustive nature of the examples in s 91R(2).

10    The Circuit Judge then dealt with the appellant’s submission that the second respondent had failed to consider the fact that the appellant had been “constructively dismissed” from his most recent employment in Kuwait. His Honour observed that the second respondent had dealt with the termination of the appellant’s employment on the basis that he had resigned after his employer had told him that it would be better if he resigned. The employer’s statement was brought about by comments made by his friends concerning the appellant’s status as Bidoon and his conduct in that capacity. The Circuit Judge concluded that the conduct of the employer’s friends had not forced the appellant’s resignation. Further, their actions did not prevent him from earning a living in Kuwait. The second respondent pointed out that the appellant had not suggested that, had he not resigned, he would have been dismissed. Although the second respondent did not speak of constructive dismissal, she clearly dealt with circumstances to which the term might accurately be applied.

11    The Circuit Judge then considered the submission that the second respondent had asked the “wrong question” in asking whether the appellant would suffer harm because he was a stateless person, rather than because he was Bidoon. The Circuit Judge had difficulty in understanding the appellant’s argument, largely because the evidence suggests that there is no material distinction in Kuwait between describing a person as “stateless” and describing such person as “Bidoon”. The second respondent accepted that the appellant was a member of a social group comprising stateless persons or “Bidoon”, and of a second social group, namely “documented Bidoon”. She then concluded that members of such groups were subject to various forms of discrimination and/or persecution but were unlikely to suffer serious harm from such discrimination and/or persecution. Thus the appellant’s submission failed.

12    The Circuit Judge next addressed the appellant’s submission that the second respondent had failed to give proper consideration to his claim that he would suffer persecution in Kuwait as a failed asylum seeker. This ground seems to have been associated with the appellant’s claim that he would be denied entry to Kuwait because he was stateless and/or had left Kuwait using somebody else’s passport. The evidence indicated that Kuwaiti law did not prohibit an application for asylum in another country, and that the Kuwaiti authorities could only deal with the matter by refusing entry, assuming that they had grounds for doing so. There is no evidence suggesting that the Kuwaiti authorities would seek indirectly to punish a person who had applied for asylum in another country. The matter is discussed at paras 49 – 57 of the second respondent’s reasons. It seems that the appellant’s real concern was as to whether he would be allowed to re-enter Kuwait, given that he is stateless and left irregularly.

13    There is conflicting information as to how such a person would be treated on return to Kuwait. The appellant submitted that the second respondent had concluded that if he was not re-admitted, it would be because he was a non-citizen of Kuwait. In Diatlov v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 313 at [33] – [40] Sackville J concluded that an inability to re-enter a country because the person was not a citizen of that country did not amount to persecution for the purposes of the Convention. The appellant argued that he would be refused entry because he is Bidoon, and not because he is a non-citizen. The Circuit Judge dismissed this submission upon the basis that, as he had previously observed, to say that the appellant is Bidoon is merely another way of saying that he is stateless. The decision in Diatlov necessarily excluded the appellant’s reliance on his absence of a right of re-entry as a basis for his claim to fear persecution for a Convention reason.

14    Finally, the appellant submitted that the second respondent had failed properly to apply the complementary protection provisions contained in s 36(2)(aa). The appellant submitted that in the event that he was returned to Kuwait he would be subject to cruel or inhuman treatment or punishment as defined in s 5 of the Act, such treatment being the detention to which he would be subject because he had no right of re-entry. The second respondent had found that the conditions of any such detention did not amount to significant harm and in any event, would continue only until new documentation was issued. The Circuit Judge rejected this submission.

APPEAL TO THIS COURT

15    The grounds specified in the notice of appeal to this Court are as follows:

1.    The primary Judge erred in not recognising that the second respondent failed to properly interpret and apply s. 36 of the Migration Act 1958.

2.    Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly interpret and apply s. 91R of the Migration Act 1958.

3.    Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly interpret and apply the definition of refugee found in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

4.    Further and/or in the alternative the primary Judge erred in not recognising the second respondent erred by applying the test in s. 91R(2) 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.

5.    Further and/or in the alternative the primary Judge erred in not recognising that the second respondent asked the wrong the question in considering whether the harm the applicant would suffer was because he was a stateless person rather than because he was a Bidoon.

6.    Further and/or in the alternative the primary Judge erred in not recognising that 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?

7.    Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly take into account a relevant consideration, namely that the applicant was constructively dismissed from his most recent employment in Kuwait.

8.    Further and/or in the alternative the primary Judge erred in not recognising that the second respondent failed to properly apply the complementary protection provisions of s 36(2)(aa) (2A(e) of the Migration Act 1958.

The relief sought was much the same as that sought in the Circuit Court.

16    The grounds advanced in the appellant’s written submissions and in oral argument did not reflect the grounds in the notice of appeal. The first ground addressed in the written submissions concerned the interpretation of ss 36 and 91R. At paras 8 and 9 of his written submissions the appellant submits:

8.    The effect of ss 36(1) and (2) and 91R(1) is that a person is owed protection obligations if the person is a refugee within that definition in the Convention subject to the limitation found in s 91R(1). Section 91R(2) is not a limiting provision but merely an inclusive provision. It was obviously open to Parliament to make it an exhaustive definition but it chose not to.

9.    As stated in the recent High Court decision of SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 296 ALR 409 (10 April 2013), the correct approach to determining eligibility for a protection visa is found in the reasons of the Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at 173 – 174 [32] – [33], per Keane J at 14].

The decisions in NAGV and NAGW are cited to demonstrate the proposition that the reference in s 36(2) to a non-citizen to whom Australia has protection obligations, is a reference to a refugee as defined in the Convention. Those cases say nothing about the effect of s 91R upon the way in which the Convention is to be applied pursuant to the Act. The appellant seems to imply that the decision in SZOQQ leads to the conclusion that s 36(2) is to be applied without regard to s 91R(1), presumably because the latter section has no effect upon the decision in Chan Yee v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. I reach that conclusion as to the appellant’s meaning, having regard to the fact that he refers to the “seminal meaning of persecution” as set out in Chan, a case decided about 12 years before the enactment of s 91R. The appellant also refers to the decision in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. The High Court heard that case after the enactment of s 91R, but the relevant proceedings in the Refugee Review Tribunal occurred prior to its commencement. The section is not referred to in the reasons. It seems that it was not relevant to the case, probably because it was not in force at the relevant time.

17    The appellant also refers to the decision in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. He submits that in that case at [12], Gummow, Hayne and Crennan JJ refer to “the list in s 91R as ‘examples’”. In the context of his submissions, he seems to be submitting that their Honours meant that the examples in s 91R were examples of persecution or, possibly, serious harm. However their Honours clearly did not intend that meaning. Their Honours meant that s 91R (and s 91S) were examples of “provisions in the Act” which provided “further specification of some of the general terms used in the Convention definition of ‘refugee’”. In other words their Honours were saying that ss 91R and 91S were examples of sections of a particular kind, not that s 91R merely provided examples of conduct which might amount to persecution. It may well be true to say that s 91R(2) provides examples of serious harm, and that the list is non-exhaustive. However s 91R(1) clearly affects the meaning of the term “persecution” as used in the Convention, to the extent that it is to be used for the purposes of the Act. In the context of this misconstruction of ss 36 and 91R, the appellant asserts that the second respondent was distracted from her true function by the examples listed in s 91R(2). I see no substance in the submission that the second respondent applied the wrong definition of the term “refugee”.

18    The appellant then submits that the second respondent found that Bidoon (including himself) had no citizenship rights. In fact, at para 78 of her reasons, the second respondent found that the appellant, as a documented Bidoon, had various rights, rejecting his claim to have no rights. The appellant challenges the second respondent’s conclusion that his statelessness was not because of his race, religion, nationality, political opinion or membership of any particular social group. In that statement, the second respondent was not disposing of the appellant’s claim to fear persecution for a Convention reason. Rather, she was explaining why he is not a Kuwaiti citizen. As previously observed, the second respondent went on to find that he was a member of a particular social group and to assess his claim on that basis. The relevant social group was stateless persons or Bidoon and/or documented Bidoon. There is absolutely no evidence of any definition of the word “Bidoon” other than that it is used to describe stateless persons. Although the appellant, at one stage, claimed that he was of Bidoon ethnicity, he had previously claimed Arab ethnicity. In the appellant’s submissions in reply, it is submitted that there are three categories of Bidoon, one such category being Bedouin people. This submission is based upon an assertion made in the appellant’s solicitors’ submissions at AB 178 as follows:

Today’s Bidun population originates from three different categories. First, there are those Bidun who claim citizenship under Kuwait’s Nationality Law, but whose ancestors failed to apply or lacked necessary documentation at the time of Kuwait’s independence. … Among this group are the descendants of nomadic clans which regularly traversed the borders of modern day gulf states but settled permanently in Kuwait prior to independence. This group of Bidun have never held the citizenship of any other country. … A second group is composed of former citizens of other Arab states (such as Iraq, Syria, and Jordan), and their descendants, who came to Kuwait in the 1960s and 70s, to work in Kuwait’s army and police forces. The Kuwaiti government preferred to register them as Bidun rather than to reveal this politically- sensitive recruitment policy. … Some of these migrants settled in Kuwait with their families and never left. … The third category of Bidun is composed of individuals born to Kuwaiti mothers and Bidun fathers.

I should add that in an earlier submission at AB 136, the appellant’s solicitors had submitted:

The Arabic word “bidoon,” meaning “without” and short for “bidoon jinsiya” (without citizenship), refers to the stateless residents of Kuwait. The Kuwaiti Bidoons are part of a large Bidoon demographic that resides in Saudi Arabia and the United Arab Emirates.

In response to para 55 of the respondent’s submissions, the appellant seems to accept that he is Bidoon because he is stateless, and stateless because his father was not a Kuwaiti citizen. However he then asserts that he is in the first category identified above because his father was born in Kuwait in 1946. Hence he cannot be in the second category. It is said that he cannot be in the third category because there is no evidence that his mother had an official Kuwaiti birth certificate. It may be that this submission in reply is an attempt to relate the appellant’s statelessness to his allegedly Bedouin antecedents. It is not clear from the evidence whether the term “Bedouin” describes a particular social group of persons, probably having Arab ethnicity, or a separate ethnic group. The question seems not to have been previously raised. As far as I can see, there has been no suggestion that the appellant is Bedouin, or that such application was the reason for any discrimination. If there were any such discrimination it would arise from the fact that his father had not been registered in 1959, as discussed at AB 178. As far as I can see, the reason for the appellant’s status as Bidoon does not matter for present purposes. The point is that he is stateless, and such discrimination as he suffers is attributable to his statelessness. Further, although the reference to three categories of Bidoon may appear to provide an exhaustive definition of the term, one wonders whether that was necessarily the intention. It may be that the three categories include most, but not all of those who are so described.

19    That the case has been conducted, to this point, on the basis of the appellant’s statelessness appears from the appellant’s submissions at paras 17 and 19 as follows:

17.    The second respondent’s conclusion at paragraph 67 (page 204) is problematic where he/she states:

I find [the appellant’s] statelessness is not for reason of his race, religion, nationality, political opinion or membership of any particular social group.

18.    He is stateless because he is a Bidoon, yet the Federal Circuit Court judge concluded (at paragraph 63 page 236):

It is the circumstances of being stateless that qualifies one as being Bidoon, not the other way round.

19.    The conclusion of both the second respondent and the Federal Circuit Judge is circular and illogical.

20    The second respondent concluded that the appellant would suffer persecution by virtue of his being a member of a social group, but that such persecution would not involve serious harm. The question on appeal is whether, given the findings of fact made by the second respondent, that conclusion was open. In the following extracts from the second respondent’s reasons, she disposed of the appellant’s claims:

At para 66:

I find [the appellant’s] lack of Kuwaiti citizenship, and thus his Statelessness, is because he was born to a non Kuwaiti citizen father.

At para 67:

I find [the appellant’s] statelessness is not for reasons of his race, religion, nationality, political opinion or membership of any particular social groups. 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.

At para 68:

Whether a posited group is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the society. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

At para 69:

I find [the appellant] is a member of this particular social group Bidoons and that he is recognisable by others as belonging to this particular social group.

At para 70:

I find [the appellant] is a member of this particular social group documented Bidoons and that he is recognisable by others as belonging to this particular social group.

At para 71:

As I accept [the appellant’s] evidence of his Kuwaiti birth record issued in 1992, his oral evidence of having been first issued a security card by ECIR in approximately 1997, and having regard to my findings that [the appellant] is a member of the particular social group documented Bidoons and would be so recognised by others, I emphatically reject the advisor’s proposition that [the appellant] is (or may even be considered) an undocumented individual from Kuwait. In rejecting this proposition I note [the appellant’s] evidence that renewal of his card was refused by an Officer of the Committee in 2008. However, the independent information is that all Bidoons in Kuwait are entitled to receive a security card (DFAT, 2009), and [the appellant’s] documentary evidence of his 1979 birth in Kuwait was issued by the Central Civil Registry in 1992, which is eight years before June 2000 when the government set a deadline for persons to come forward so as to be documented (UK Home Office, 2012). In rejecting the advisor’s proposition, it follows, and for the same reasons, I do not accept [the appellant’s] claim (made in the advisor’s submission forwarded by email on 22 August 2012) that he is a person with no identity in Kuwait.

At para 72:

As I accept [the appellant’s] evidence of his ongoing employment with various employers from 1993 until 2011 … I find any past discrimination he may have experienced in employment matters has not threatened his capacity to subsist. I accept the independent information from Refugees International (2011) that in April 2011 a government decree was announced that registered Bidoon would be granted facilities including access to public sector employment. Based on the information from Refugees International (2011) and my findings that [the appellant] has undertaken paid employment with various employers since 1993, and that as he is a documented Bidoon (due to the ECIR having a record of his presence in Kuwait and from which he was issued a security card) he is able to obtain from the Ministry of Social Affairs and Labour a work permit so he can be hired in the public or private sectors, I find [the appellant] has not been in the past denied the capacity to earn a livelihood of any kind such as to threaten his capacity to subsist as set out in subparagraph 91R(2)(f) of the Act.

At para 73:

I find [the appellant] has not been in the past denied access to basic services (such as medical care) threatening his capacity to subsist as set out in subparagraph 91R(2)(e) of the Act.

At para 74:

Having considered all of the claimant’s evidence in relation to 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.

At para 75:

On the evidence before me I do not accept [the appellant] has ever been denied a driver’s licence, and I find that he (as a documented Bidoon) is and will continue to be entitled to obtain a driver’s licence in Kuwait.

At para 76:

On the information before me I find [the appellant] has no political or criminal profile with the Kuwaiti authorities.

At para 77:

I find the totality of [the appellant’s] treatment by his former employers’ friends, including their harassment and physical ill-treatment of him, combined with their stated disapproval of him to this former employer which led to his voluntary cessation of employment, did not involve serious harm to him as set out in subparagraph 91R(l)(b) of the Act. I accept [the appellant’s] entry interview evidence of employment since 1993, in particular his employment with the family in a domestic capacity since 2004/2005 and note he has not made any other claims about being abused in the course of his employment. For these reasons, and as his work with the former employer whose friends/social associates maltreated him is not ongoing but has been voluntarily terminated by [the appellant], I find this circumstance (of conflict with his past employer’s guests) is an isolated, one-off occurrence. I find there is not a real chance now or in the reasonably foreseeable future [the appellant] will face any circumstances or harm of a similar nature.

At para 78:

I accept the general proposition that discrimination, that is, differential treatment of persons in any one society, can involve serious harm. However, having regard to [the appellant’s] claims and circumstances cumulatively as reasoned in the proceeding paragraphs, I do not accept in his particular circumstances that as a member of the particular social groups of Bidoons and documented Bidoons, 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.

At para 79:

There being no evidence before me of Kuwaiti laws prohibiting the making of asylum claims and/or imposing penalties upon persons whose exit from Kuwait was on a false passport, I do not accept [the appellant’s] claim that he will be arrested on return on account of his having used a false passport to leave Kuwait and his having unsuccessfully sought asylum during his absence.

At para 80:

For these reasons I do not accept [the appellant’s] claims that in relation to his attendance at the March 2011 protest, his use of a false passport to depart Kuwait and his claim for asylum during his absence, he will be imprisoned and face torture and death on his return to Kuwait. I find there is not a real chance now or in the reasonably foreseeable future [the appellant] will experience any adverse consequences by the authorities on account of these matters.

At para 81:

For these reasons I find if [the appellant] is detained at Talha Deportation Centre upon his arrival at Kuwait airport in the reasonably foreseeable future, there is not a real chance any treatment he receives or conditions he encounters will include serious harm, including any of the non-exhaustive listed serious harms in subsection 91R(2) of the Act, as set out in subparagraph 91R(l)(b) of the Act. I find there is not a real chance now or in the reasonably foreseeable future that if [the appellant] is detained at Talha Deportation Centre because he is denied re-entry (due to his being a non-citizen) and his being Stateless means there is no country to which he can be deported, his detainment will encompass any type of serious harm as contemplated by section 91R of the Act.

At para 82:

I have found neither the individual or the cumulative impact of the restrictions [the appellant] experiences as a stateless person who is a Bidoon and/or documented Bidoon amount to serious harm, and I have found his statelessness does not come within the scope of the Refugee Convention, nor does any possible denial of his re-entry by the authorities constitute persecution. I have [concluded] there is not a real chance now or in the reasonably foreseeable future [the appellant] will experience any adverse consequences by the authorities on account of his attendance at the March 2011 protest, his use of a false passport to depart Kuwait and his claim for asylum during his absence. Consideration has been given to the information contained in the correspondence from M. Stroscio­ Nicolosi from Melaleuca Refugee Centre dated 18 September 2012, and I accept [the appellant] is genuinely worried about his prospects upon return to Kuwait. However, on the available information I do not accept [the appellant’s] fear of Refugee Convention based persecution, now or in the reasonably foreseeable future, is well founded.

At para 83:

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

21    At paras 22 – 40 of his outline of argument the appellant makes a number of general assertions concerning the second respondent’s conclusions and reasoning. First, at paras 22 and 23, he disputes the alleged implication that recognition as an illegal resident is a right. The second respondent certainly concluded that as a documented Bidoon, the appellant had access to a wider range of government services than would the undocumented Bidoon. I doubt very much whether the second respondent intended to imply anything more. She proceeded upon the basis that in this case, denial of citizenship was not itself persecution, a proposition which I consider to be plainly correct. In other cases the denial of citizenship by reason of nationality, race, religion or membership of a social group may constitute persecution. However that cannot be the case where the relevant social group is identified by reference to the fact that its members are stateless.

22    At para 24 the appellant submits that if he attends a protest meeting concerning the treatment of the Bidoon, there is a real chance that he will be met with a violent response from the authorities. The second respondent recognized that the appellant had attended one protest in March 2011, and that such meeting may have been the meeting at which, according to independent information, security forces used significant force to disperse it and detained numerous persons. However the second respondent appears to have understood the appellant’s claim to address his subsequent treatment by friends of his employer, rather than difficulties which might be encountered in participation in future protests. There seems to have been no suggestion that he desired to participate in any future protest, or that he feared retaliation if he did so. There was no evidence of continuing protests in which he might wish to participate.

23    At paras 25 to 33 of his submissions, the appellant addresses the conduct of his employer’s friends, which led to his resignation and eventual departure from Kuwait. The evidence suggests that shortly after the March 2011 protest, there was a social function at the appellant’s employer’s home. The topic of protests arose in the course of discussion. The friends expressed discriminatory views about the appellant and stabbed him in the foot. It seems that until October 2011 nothing further happened. At that time his employer’s friends again talked to his employer. Subsequently, the employer said either that he did not want the appellant to continue working for him, or that it was in the appellant’s best interests that he not do so. Whichever version be correct, the second respondent accepted that the appellant resigned and was not actually dismissed. Assuming that he resigned as a result of the indication given by his employer, whatever form that may have taken, the second respondent appears to have concluded that there was no more than a fanciful chance that any future action would be taken against the appellant by virtue of his attendance at the protest in March 2011.

24    At paras 26 and 27 of his submissions the appellant challenges the second respondent’s conclusion that whatever actions were taken by his employer’s friends, they were undertaken as private persons and not as officials performing official functions. Given that the conduct in question occurred whilst they were at social gatherings, that conclusion was a reasonable inference. The second respondent had previously observed that none of these people had, between March and October 2011, used their official positions to take any formal action against the appellant. The appellant then questions whether one can sensibly distinguish between actions taken as an officer of the state and actions taken in a private capacity. This is nothing more than speculation.

25    At paras 28, 29, 30, 31 and 32 the appellant asserts that “persecution does not as (sic) cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action.”. He refers to the following passage in the second respondent’s reasons:

I do not accept that there is anything more than a fanciful chance now or in the reasonably foreseeable future the Kuwaiti authorities will take any adverse interest in [the appellant] in respect of his attendance at one protest in March 2011, even if the authorities are informed at a future point in time (by [the appellant] or others) of his attendance.

The appellant submits that the second respondent could only have reached that conclusion if she assumed that the appellant would take “evasive” action by avoiding protests and/or by avoiding employment with any person who might have links to the government. The cited extract from the second respondent’s reasons appear at the top of page 208. However the sentence commences on the preceding page in which she provided the context for the cited passage. Clearly, the second respondent was addressing the inferences available from the appellant’s evidence concerning his attendance at the protest and subsequent events. Thus the second respondent was not assuming any conduct on the part of the appellant. Rather, she was holding that the events of March 2011 and subsequent, related events did not lead her to conclude that the appellant would be exposed to the risk of further adverse attention as a result of his attendance at the March 2011 protest.

26    It may be that in those paragraphs of his submission, the appellant was seeking to make a broader point concerning his possible attendance at future protests and/or future employment. As I have previously indicated the case seems not to have been conducted upon the basis that he was likely to attend future protests and feared persecution as a result of any such attendance. As far as I can see, there is no evidence of continuing protests. As to the question of any future employment by a person who may have connections to government, there seems to be no basis for assuming that such a person would take a view similar to that taken by his former employer’s friends. There is also no reason to assume that all, or even a substantial number of potential employers will have government connections, or that other government officers or employees would necessarily want to interfere in other people’s household matters. Again, this submission is little more than speculation, based upon one incident which the second respondent considered to be an isolated event.

27    At paras 34 and 35 the appellant submits that the second respondent failed to consider whether there was a real chance that if he returned to Kuwait, he would be detained indefinitely, and whether such detention would amount to serious harm. The second respondent considered that if he were refused re-entry, it would be because, as a non-citizen, he had no right of entry. Relying upon the decision in Diatlov (supra) the second respondent concluded that neither his statelessness nor his lack of right of entry amounted to persecution for a Convention reason. Further, at para 87 the second respondent found that if he were denied entry, any resulting detention would be limited to the period necessary for the issue of appropriate documentation. Further, he would be detained at an identified deportation centre where there was no real chance that he would be subjected to treatment or conditions which might constitute serious harm.

28    At para 36 of his submissions the appellant submits that stateless persons in Kuwait do not enjoy the rights and benefits available to Kuwaiti citizens, including the availability of marriage and death certificates, free access to state-sponsored schools and healthcare. The second respondent dealt with all of these matters, finding that, particularly in the appellant’s case, any such limitations did not constitute serious harm.

29    At para 37 the appellant summarizes the persecution which he claims to fear. I have dealt with all of these matters. In paras 38 and 39, he asserts error without adding further to his earlier submissions. At para 40 the appellant alleges that the second respondent failed to “pick up that the appellant was constructively dismissed”. In my view, to speak of constructive dismissal is merely to describe a situation in which somebody resigns from his or her employment because of the conduct of his or her employer. The second respondent may not have used the expression “constructive dismissal”, but she clearly considered the relevant factual situation.

30    At para 41 the appellant submits that he relies on his earlier submissions as demonstrating that the second respondent also misconstrued the term “inhuman treatment” for the purposes of ss 36(2)(aa) and 36(2A) of the Act. The second respondent dealt with the so-called complementary protection provisions at paras 84 to 91 of her reasons, referring extensively to her previous findings and applying ss 36(2)(aa) and  36(2A). She was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Kuwait, there was a real risk that he would suffer significant harm. There is no specific attack upon that finding.

31    At ts 46 – 49, counsel for the appellant and I entered into a somewhat lengthy debate about questions of fact and questions of law. The debate seems to have been initiated by counsel’s submission that the second respondent, having dealt with the various aspects of the appellant’s case, should have considered whether, notwithstanding her views as to individual matters, on an overall view of the case, she should have inferred a well-founded fear of serious or significant harm. Such a submission is easy to make and has a superficial appeal. It seems to reflect the way in which courts have dealt with other decision-making processes in which an overall assessment of identified factors is required. However different forms of discriminatory or prejudicial conduct will not necessarily have a cumulative effect. Thus, for example, the effects of mild discrimination in employment cannot necessarily be combined with the effects of mild limitations on political expression to produce a combined result which can be recognized as serious or significant harm. There may be circumstances in which discrete actions have a cumulative effect which can be described as “harm” to the relevant person. In each case the decision-maker must identify potential areas of harm and then identify the reason for causing such harm and its seriousness. In my view the second respondent performed that function. Indeed, she said as much at para 83 of her reasons. I see no basis for this criticism.

Conclusion

32    In my view the primary Judge was correct in upholding the second respondent’s decision. Accordingly, the appeal should be dismissed. The appellant must pay the first respondent’s costs.

Associate:

Dated:    26 May 2014