Ford 1 Al-Anezi v Minister for Immigration & Multicultural Affairs FC 355 Australian Federal court (1999) Facts 1. Mr. Al -Anezi is a Bedouin derived from the Arabic Bedu which means he is an inhabitant of the desert 1 (The Bedouin Culture in Transition) 2. He was born in Kuwait in 1952 where he resided until 1991 when the invasion of Kuwait took place by Iraq. 3. Under Kuwaiti law a Bedouin is not considered a citizen. 4. Mr. Al-Anezi claims to have served in the Kuwaiti army during this time. 5. In 1974 he married an Iraqi national to whom he had ten kids, seven of which were born in Kuwait. 6. Following the war many Mr. Al-Anezi was deported along with many other Bedouins for sympathizing with Iraq during the war. 7. From September 1991 until December 1993 the defendant lived in Basra Iraq where he was not persecuted and was allowed to travel as he felt fit. 8. The applicant then moved to Jordan in 1993 where he and his family, all of which entered with Iraqi passports, gained two three month residency permits. They continued to stay after the final permit ended. During the time they legally worked and lived on a farm near Amman. 9. On the 8 th of July 1998 Mr. Al-Anezi arrived in Australia via Singapore with through the usage of a false passport. 10. On the 16 th of July 1998 Mr. Al-Anezi claimed refugee status and applied for a protection visa. 11. November 10 th 1998 the Refugee Review Tribunal affirmed the decision of a Minister not to uphold a protection visa for Mr. Al-Anezi, although they did find that he did fit the definition of a refugee in Kuwait. Questions 1. Was Mr. Al-Anezi ever a citizen of any of the three countries in which he has resided? 2. Does Mr. Al-Anezi fit the description of a refugee? 3. Does Australian law dictate that refugees may be given protection visa? 4. Did the Refugee Review Tribunal in fact look at all details necessary for this case? 1 www.geographia.com/egypt/sinai/bedouin.htm
Ford 2 Decisions 1. Prior to Mr. Mr. Al-Anezi s entrance into Australia he had resided in three separate countries: Kuwait, Iraq and Jordan. As a Bedouin born in Kuwait Mr. Mr. Al-Anezi had no citizenship in Kuwait, this action goes against many UN initiatives such as the UN convention on the Reduction of Statelessness which aimed to eliminate statelessness. The relationship between Mr. Al-Anezi and the Kuwaiti government would not offer any sigh as to a relationship between the two. This relationship which as seen in Liechtenstein v. Guatemala (1953), otherwise known as the Nottebohm case, in which the relationship or social contract between an individual and an inhabitant is what obligates citizenship. The expulsion of many Bedouin in including Mr. Mr. Al- Anezi along with the unconfirmed reports of Mr. Al-Anezi s service in the Kuwaiti army further symbolized the disconnect between the two and the impossibility not only to establish citizenship but, residence as well. However, Ira represents an entirely different scenario then that of Kuwait. In Iraq Mr. Al-Anezi was able to rent housing a travel around Iraq with some form of government issued identification. The fact that Mr. Al-Anezi was freely able to travel within Iraq with his documentation can prove his residence in the country was legal. This is also substantiated by the fact that many other Bedouin have been able to live comfortably in Iraq as Mr. Al Anezi had 2. Mr. Al-Anezi s wife is an Iraqi national as are three of his sons which would give him not only a reason but a legal argument to obtain citizenship. Mr. Al-Anezi never made a formal inquiry to secure his citizenship; rather he lived a de facto life as an Iraqi resident. In fact, Mr. Anezi never made any attempt to find work while in Iraq or apply for a visa when he traveled abroad to Jordan. It is clear that Mr. Al-Anezi is not a citizen of Iraq. Jordan offers another unique view, in that Mr. Al-Anezi did secure legal residence for six of his months in Jordan. After those six months Mr. Al-Anezi and his family lived illegally in Jordan also, while his wife and children entered the country with Iraqi passports Mr. Al-Anezi entered without a passport however, Jordanian law states that Bedoons may enter without legal passport. There is no evidence of a naturalization process to speak so it would appear as though only residency can be established in the country. 2 http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6b7617
Ford 3 2. According to article 1 of the Convention Relating to the Status of Refugees state s that A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. (Convention Relating to the Status of Refugees) 3 Following this definition and applying it to the case at hand Mr. Al-Anezi will have to prove that he fits the definition of refugee status for each of the three States involved. In regard to Kuwait, Mr. Al-Anezi does fit the definition of a refugee, in concurrence with the decision reached by the Refugee Review Tribunal. His direct expulsion and mistreatment for his member of the Bedouin people is has created circumstances in which his return will put himself at risk. Mr. Al-Anezi fails to meet the definition of a refugee when examining his time and exit from Iraq. In Iraq Mr. Al-Anezi and his family enjoyed the benefits of the national food rationing programs as well as some forms of government ID s which allowed for their travel within the country. Bedouins were not looked upon in the same negative light in Iraq as they were in Kuwait, and there is no reasonable fear to which Mr. Al-Anezi or his family must face. Their fore there is no reason to treat Mr. Al-Anezi as a refugee in terms of his residence in Iraq. The situation and environment which Mr. Al-Anezi faced in Jordan was in fact more welcoming than his existence in Iraq. He had legal residence in Jordan as well as employment which as mentioned in the previous decision, solidify his residence to Jordan. He was not treated negatively due to any social factors (i.e. him being Bedouin) and there is no reason to expect any mistreatment or violence on his return to Jordan. The only impediment is that fact that Jordan is not signee of the Convention on Refugees and their fore has no legal mandate to protect him from expulsion to Kuwait. The aforementioned data would conclude that Jordan has made no attempt to do this in the past and has actually facilitated Mr. Al-Anezi s life in Jordan. Once again, Mr. Al-Anezi does not fit the definition of a refugee. 3 http://untreaty.un.org/cod/avl/pdf/ha/prsr/prsr_e.pdf
Ford 4 The inability for Mr. Anezi to validate his claim for refugee status in two of the three States in which he has resided in negates his claim for refugee status in Australia and his attempt to secure a protection visa. 3. Under Article 33.1 of the 1951 Refugee Convention, A State may not return an individual to his or her homeland if his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (1951 Geneva Convention on the Status of Refugees) This clearly stated international treaty, of which Australia is a part of, mandates that Australia must in fact research whether or not an individual fits the definition and, if they do they are not allowed to expel them from their State. Article 33 clearly indicates that Mr. Al-Anezi cannot be sent back to his land of birth, Kuwait; however, Jordan and Iraq are two third party States of residence which Australia may deport Mr. Al-Anezi to. Under the direction of domestic law that request for refugee status and the visa were sent along the proper channels and viewed on by experts in the field. In the handling of Mr. Al-Anezi s request for refugee status and an associated Australian visa, the Australian authorities followed international law in hearing and addressing the suit as well as, following domestic procedure on the matter. 4. The Refugee Review Tribunal of Australia failed to take into account all of the details of the case when rendering their decision. The key error of the Tribunal was in the lack of further investigation put into the matter of Mr. Anezi s place of future dwelling. While the Tribunal found that both Iraq and Jordan would be appropriate locations for his residence, it failed to actually procure and answer or a detailed investigation as to his actual status. This failure to further investigate could possibly lead to a situation of statelessness to which Australia would take direct responsibility to and a failure of the 1951 Convention on Refugees. In failing to procure a clear and detailed assessment of Mr. Anezi s ability to secure residence in one of two, Third Party State s, Iraq and Jordan, related to the issue. This Court remanded the decision back to the Tribunal in order to deliberate on these topics. Principles The 1951 Geneva Convention on the Status of Refugees and its subsequent amendments and protocols clearly establishes that Refugees are to be protected by the international community as a whole and, that it is the mission of each state to guarantee these rights.
Ford 5 The status of Refugees is much more clearly established and regulated by international law and the international community as compared to Statelessness. The issue of Bedouins and other Nomadic peoples creates a unique setting for international law and domestic law as their citizenship cannot clearly be marked. Conclusion The Judge in this case found that the Refugee Review Tribunal had in fact failed to initiate enough investigation and research into the future dwelling of Mr. Al-Anezi. In finding this way the Court remanded the case back to the Tribunal for further research into the matter. This case also brought up many interesting features of international law. The uniqueness of this situation, that fact that Mr. Al-Anezi is a Bedouin, helped to further examine several key aspects of Refugee cases. The first of which is how to establish the residence or citizenship, especially in the case of a nomadic or displaced person. This case looked at the legal aspects of residence and citizenship, government documents and knowledge of the inhabitant, as well as, the social and economic life of the inhabitant. The second situation is how to handle the issue of the third party actors in a Refugee case. Whether or not Australia could deport Mr. Al-Anezi to Iraq or Jordan, two of his former places of residence, based on the fact that he did not meet the requirements of a Refugee opened up a series of very interesting decisions. The relationship of the individual and the State was used a reference for establishing the ability to deport a person to place of prior residence. Bibliography Articles and Books Geographia The Bedouin Culture in Transition 1997 www.geographia.com/egypt/sinai/ bedouin.htm Office of United Nations High Commissioner for Refugees, Al-Anezi v Minister for Immigration & Multicultural Affairs, 1 April 1999. http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6b7617 United Nations, 1951 Geneva Convention on the Status of Refugees, Guy S. Goodwin-Gill http://untreaty.un.org/cod/avl/pdf/ha/prsr/prsr_e.pdf
Ford 6 Court Cases Al-Anezi v Minister for Immigration & Multicultural Affairs [1999] FCA 355 (Australian Federal Court