1618179 (Refugee)

1618179 (Refugee) [2017] AATA 2376 (17 October 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618179
COUNTRY OF REFERENCE:                  Iran
MEMBER:Rodger Shanahan
DATE OF DECISION:  17 October 2017
DATE CORRIGENDUM
SIGNED:20 November 2017
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In error: Paragraph 18 of the Decision Record
His children were unable to continue their education in Australia.
Should read:
His children were unable to continue their education in Iran.
Rodger Shanahan
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618179
COUNTRY OF REFERENCE:                  Iran
MEMBER:Rodger Shanahan
DATE:17 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 17 October 2017 at 1:52pm

CATCHWORDS
Refugee – Protection visa – Iran – Federal Circuit Court remittal – Nationality – Stateless – Ethnicity – Faili Kurd– Kidnapped by Wahhabis – Inconsistent evidence – Credibility issues
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a stateless (but whom I find to be a citizen of Iran), applied for the visa [in] July 2012 and the delegate refused to grant the visa [in] November 2012. His case was remitted by the Federal Court [in] October 2016 because the Tribunal failed to have regard to the evidence of the applicant’s cousin, despite the original Tribunal member’s indication that she would do so.
The applicant appeared before the Tribunal on 28 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent.
CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection Visa application
The applicant claimed that he was born in Baghdad in [year] but his parents were killed [when] he was [an infant], and he was then adopted by his aunt who raised him. One of his cousins referred to him as his step-brother. In 1990 his aunt’s husband was killed [and] his aunt decided to take them back to Iraq (in 1991), which they entered illegally – he was around [a certain age].
They went to Kazimain and stayed with his maternal uncle [Mr A]. They stayed for 15 days but the Shi‘a intifada started and the Ba’th began executing Shi‘a. [Mr A] was among those executed and so his aunt had to return to Iran. They were detained at the border and placed in [a] refugee camp for [number] months. They were given a green expelled Iraqi card and released.
He began his education and was married in 2000. In 1995 the Iranian authorities announced that all Iraqis who held green cards should come and change them to white cards. They were hesitant to approach the Iranian authorities as they heard Iranian authorities were deporting all Iraqis back to Iran.
In 2005 the Iranian authorities forced them to return to Iraq. At the time he was alone and didn’t have his family with him. He was in Iraq for 13 or 14 days before he was forced back to Iran. In Iraq he went to his [grandparents’] house in Samarra but was threatened by some Wahhabis who saw him as an infidel Shi‘a. The second day after he arrived he and his uncle were kidnapped by Wahhabis, taken to a remote area inside a building where an altercation broke out between his uncle and a terrorist. A terrorist pulled out his gun and shot the uncle in the head.
The applicant yelled out and was knocked unconscious by a terrorist. He woke up and after five days his relatives paid [an amount] for his release. His aunt had a [medical condition] when she heard her brother was killed and was hospitalised for two weeks. He and his cousin then went to Kazimain, obtained two fake Iraqi passports, Iranian visas and then returned to Iran. In Iran he has no right of ownership or to the public health system and cannot be employed in government jobs.
Agent’s submission
His uncle decided to find safety in Iran and he was taken to Tehran to his aunt’s family’s house when he was [an infant] where he lived ever since. He was a Faili Kurd and targeted for harassment and discrimination; he was Shi‘a by birth but has no religion currently.
He was married in 2000 and has [children]. He has no family outside this. He completed primary school and secondary school at [night]. He completed a course in [a certain field] in 1995 and worked in this field from 1992 until 2011.
He was concerned because he was stateless and was living in Iran illegally. In 2005 he tried to return to Iraq but was captured and tortured by Wahhabis. He and an uncle were attending a shrine, and as they left they were grabbed, taken to an underground location and tortured and his uncle shot and killed. This forced his return to Iran and he realised that he could no longer live in either Iraq and wasn’t allowed to live in Iran.
He decided to leave Iran for Australia and left [in] March 2012, traveling on a false passport with his name and photo. The passport was thrown into the ocean on the way to Australia, but he brought his green card with him. He was stateless but there was also religious and social pressure on him. His children were unable to continue their education in Australia. He could not get a new job because of the new national ID card, could not own property or rent a workplace for a shop.
Because he had fled Iran he feared trouble because he had used an illegal passport and may be regarded as a spy – he feared life imprisonment as a result if he returned.
AAT Hearing
The applicant and adviser were asked if they were happy for the oath he took earlier in the morning and the introductory brief he was present for during his brother/cousin’s hearing to remain valid and they agreed. The applicant claimed that if he returned to Iran he would not be accepted as he was not a citizen of that country but that if they were found to be there he could be detained and imprisoned, possibly as a spy.
Prior to being detained in Iran in 2005 they had been living there illegally. He was [an infant] when he was living with his auntie’s family (who adopted him after his parents died) and first went to Iran. His uncle[1] was called to the war but fled – he was unaware of whether he served and had never asked another family member about it. War was not a nice to think of and wasn’t anything to be proud of. He never asked his uncle any questions. Asked how his uncle came to serve in the Iraqi army, he claimed that it was possible because they were Shi’a Failis and Saddam didn’t want his personnel to be exposed to danger.
[1] From this point on to avoid confusion the uncle and aunt who he claimed adopted him will be referred to as his mother and father.
Asked what documentation his uncle had that allowed him to be called up, he said that he was only [an infant]. But he had heard that they came to the villages and took people of the correct age. His auntie told him this. Asked if he asked his mother what documents that the father came out of the army with, he claimed that as his father was taken with force and deserted, he had no documents. He was asked if he had any country information that indicated stateless Faili Kurds were forcibly recruited into the Iraqi army during the Iran-Iraq war. He claimed it could be found on the internet and he was asked to provide such information as the Tribunal was unaware of this occurring.
He didn’t believe he had any paternal uncles but he had two maternal ones. He was unaware if they were conscripted into the Iraqi army. He was asked why he didn’t know and said that he didn’t have any contact with them while he was in Iran. When he was in Iraq he was young when [Mr A] was alive but was killed, and they only stayed for 14 days. He had another uncle [Mr B]. Asked if they were Iraqi nationals he claimed that they had Iraqi wives but he didn’t know if they were citizens. It was put to him that this would have been an obvious question for one who was stateless and he could have asked his mother (or them directly). He claimed he had never spent time with the uncles to ask them and had never asked his mother. He was asked why he wasn’t very interested in his family tree to work out what, if any, nationality he could try to claim.
He claimed it was obvious that his grandparents and his parents were not Iraqi so it would have been a useless question. He was asked why he couldn’t have asked where they were born. He claimed no one from where his parents were born had any nationality. Asked if he inquired about his uncles citizenship he said he assumed his uncles were Iraqi by marrying their wives. Asked why he assumed this, he claimed they had no problems in Iraq. He was asked what the nationality laws in Iraq were, and he claimed that he didn’t know. It was put to him that this would have been an obvious question for someone who was stateless in the event that they might be able to claim Iraqi citizenship. He claimed that he should have asked more questions and if he did he may not have these problems.
He said his parents had no citizenship and if they could have they would have done it. Even if he could have gotten Iraqi citizenship it would have been useless for him as he had been brought up in Iranian and in Iranian culture and saw himself a Iranian. He couldn’t move to Iraq and live with people there whose language and culture he didn’t know. It was put to him that he was happy to come to Australia where he didn’t know the culture or language. In Iraq at least he shared a common religious identity, some family members and could learn Arabic. He said that Iraq wasn’t a safe country. Asked if it was a safety, rather than cultural or linguistic issue, he claimed safety was the top priority.
When he left Iraq [as an infant], he lived in Iran until 1990 when his father passed away and they moved to Iraq in 1991. It was about June/July 1991 when they moved. When they were in Iraq (he was only about [age] years old) they went at the suggestion of [Mr A]. But [Mr A] was taken and they returned to Iran – they were there for only about [number] weeks. Asked why he went to Iraq if it was so unsafe, he claimed he was a child and it was hard for his mother to look after the children financially. His auntie told his mother to come and they would support them.
He was asked if this appeared to be a strange thing to do in retrospect. It was safe in Iran, not in Iraq. [Mr A] could have sent his mother money. He said that perhaps [Mr A] wanted them under his wings. It was put to him that in his statement he had said that they had been in Iraq for 15 days and during that time the Shi‘a intifada had started. Yet the intifada began at the end of February and he said they moved in June/July which was several months after the uprising had come and gone.
He claimed that he didn’t know the exact dates it began but when they were there it was the continuation of the intifada and Saddam was still taking people who were involved. It was put to him that he was quite specific in his statement that he was there when the intifada started. He claimed he had said that he was there when it had started. He claimed that the words were quite close in Farsi. It was put to him that he had signed the statement in front of a JP. The interpreter was asked and said the words could be close.
He claimed that the statement was probably read back to him in Farsi. He was then asked why, if the intifada was still going on at the time they were there, why [Mr A] had asked them to join him during the unrest. Either they had gone to Iraq at the start of the intifada when coalition forces were entering parts of Iraq, or they went while the intifada was ongoing. It was strange in either case that [Mr A] would ask his Shi’a sister to come with her [children] to a conflict zone in Iraq during a Shi’a intifada.
He thought that perhaps [Mr A] believed they would be safer with him than in a country where they had no one to look after them. It was very difficult in Iran for a single mother with [children] to live without a man to look after them. It was put to him that 15 days later they returned and [Mr A] was dead so they were in an even worse position at this point yet the applicant’s mother was able to survive as a single mother from 1991-2005. On the face of it she was easily able to survive given they had a home to live in, the children were educated and the boys subsequently employed.
He claimed that she had just lost her husband and they decided she should stay with her brother. When [Mr A] died, his wife decided to move in with her parents so the applicant’s mother decided they should return to Iran to be safe. At the border they were stopped by the border guards and they were taken to a camp for [number] months and after this they stayed at a property owned by [Mr C] and he sponsored them and they were issued green cards.
His sister married [Mr C]’s son and the family moved to a location close to Tehran. Perhaps they were able to survive because [Mr C] helped out. The applicant and his brother were then able to get work through [Mr C]’s son as [an occupation]; they attended school in the evenings. His mother renewed their green card every year but only until 1374 (1995) but didn’t do it after this because the situation was calmer in Iraq and she was afraid because the Americans were there and the fighting was over and things were relaxed.
It was put to him that the US was not in Iraq at that time as they had withdrawn. He said that he meant that it was calmer because they had taken away Saddam. It was put to him that Saddam was still there. He claimed that he wasn’t sure but thought Saddam was still there. It was put to him that the Tribunal was trying to assess his credibility and much of what he claimed was based on oral claims - Saddam Hussein was not removed by 1995, so if he was unsure of something he should not present it as fact. He claimed that he was confused about dates because he was under a lot of stress. He meant that Iraq was calmer and Saddam was removed was in 2005
He claimed that in 1995 his mother thought that they would be returned to Iraq if she went to renew their card. He was asked what she based on – whether there had been a mass expulsion at the time. He claimed she may have been scared. It was put to him that she had been renewing it up to that time and what there was at this point that made her afraid. He claimed that the Iranian government had used a false advertisement about outlawed motorbikes above 250 cc to identify owners and then remove their bikes.
This was the environment she was in. Asked if Faili Kurds were being returned at this time he claimed there wasn’t. He was asked why she would extrapolate from motorbikes being removed to the expulsion of Failis. He claimed she thought this would be the way in which she would be identified and removed. He claimed that perhaps the decisions his mother made were not based on facts.
He had no problems living in Iran until 2005. It was put to him that if he was happy the Tribunal was happy to accept the account his brother had given about their being stopped for [an offence]. He said the accounts were the same as they were together. After the police station they were given 15 days to leave the country – they went to the border as [Mr C] had given them bail in the form of a bond for his garage. At the border they took their cards and punched them twice. His mother took their cards as she spoke Arabic. He was asked what would happen if they got separated given he was an adult Farsi-speaking male in Iraq in 2005 with no identity document and his only excuse that his mother had his ID card – this was not a good position to be in.
He claimed even if they had the card it was not valid. It was put to him that he was in civil-war racked Iraq as an adult male Farsi speaker whose sole reason for being there rested on having the card yet his mother had it. He claimed they were all together and the card wasn’t worth anything. It was out to him that if they were in different vehicles and were stopped at a US checkpoint then at least he could explain why he was there. He claimed his mother had the cards and they were together. His mother got in contact with [Mr B] who was in Najaf and his cousin [Mr D] who was in [Town 1].
The family made a mistake and went to Samarra as the incidents that occurred to them happened there. He was asked why they didn’t go to Najaf with their uncle [Mr B]. He claimed they weren’t children and couldn’t go live with their uncle. It was put to him that there was a civil war and that safety would have been paramount, if not for them then for their mother. Najaf was Shi’a and Farsi was widely spoken there so it was safer and easier to get around. He claimed they didn’t have much information about the area and they didn’t think there were more Sunnis than Shi’a in Samarra. He was asked if his mother spoke to [Mr B] before they left and he claimed that he asked her to come to Najaf. He was asked if [Mr B] explained the situation in Samarra to his sister - that there were few Shi‘a there and that the Americans were there, along with Sunni jihadis.

He claimed that it was important for them to be somewhere where they could be independent and didn’t want to rely on their uncle. There was a house that belonged to their ancestors in Samarra and they thought they could start there. He was asked if his mother’s brother ([Mr B]) didn’t warn her that she could be killed in Samarra and that they should get protection from him in Najaf. He was also asked why his mother would expose her non-Arabic speaking sons to the dangers in Samarra. He claimed they weren’t children and they put pressure on their mother to go there – they were unaware of the dangers there and had heard that there were [number] Shi’a families there. It was put that this was out of around 200,000 people which weren’t very good odds. He agreed that the percentage wasn’t high and they weren’t going to tell everyone that they were Shi’a.
The house belonged to his maternal grandparents. They weren’t Iraqi citizens otherwise his mother and they would have been citizens as well. There were letters there in Arabic that his cousin later told him what they were about. His mother could only read the Qur’an and didn’t know what the letters said. They didn’t take the letters to their neighbours from whom they got the keys – they knew the house belonged to a Shi‘a family and the letter only arrived in the evening after they arrived.
[Mr B] came to Samarra the third day they arrived – he saw the letter and told them not to take it too seriously. He thought the letters were designed to get someone to sell the house. It occurred in Autumn but he didn’t remember the month. It was put to him that he was kidnapped yet couldn’t remember the month. He said only that it was Autumn. He and [Mr B] went out to get food and they told the family they were going and went first to the shrine. Outside the shrine they decided to take a car; there were two people in the front and one in the back. One of the people in front had a pistol. Asked where the checkpoints (US or Iraqi security forces) were on the road relative to the shrine and he stated that he couldn’t remember.
They had bags put over the heads and made to bend over. By the time the hood was taken off they were underground somewhere in a room that had a metal door. He was assaulted and cut with a knife on his arm. Asked why they cut him on the arm, he claimed he had [other] cuts as well. [There] appeared to be very faint marks that were difficult to see and not indicative of any great scarring.
His uncle began arguing with the captors in Arabic and one of the kidnappers lost control and shot his uncle. Asked why they went to the shrine oif they went to buy food, he claimed his uncle asked him to go visit the shrine. Asked why he didn’t wait for his mother and brother and take them all, he claimed it was an impromptu decision. He was with his captors for around two days after his uncle was shot. He was not interrogated. Asked how they communicated he said that no one spoke to him. They knew he spoke Farsi. Asked why he, as [an adult] Farsi speaking male with no ID turned up in Samarra and, after being captured by Wahhabi terrorist who consider him as an infidel Shi’a he wasn’t considered to be Iranian, perhaps even a member of the Pasdaran. He was asked why he wouldn’t be paraded around, videotaped, or handed on to other groups. He would be of great value to them yet they didn’t appear to be much interested in him.
He claimed Pasdaran wouldn’t be sent without documentation. He didn’t know what the intention of the captors was, they just asked for money. It was put to them that he was very particular about the nature of his captors and, given they were ideologically motivated as Wahhabis it was strange they would release him for money as opposed to taking the money and stringing him up in the middle of Samarra. They could keep the money and kill the infidel Shi’a.
He claimed that perhaps he was lucky or that God was looking after him. It was put to him that this account was hard to believe. He was released towards evening and he saw his cousin [Mr D] who told him it was not safe to stay. His mother had a [medical condition] on news of her brother. They went to [Mr D]’s house that night for eight or nine days. [Mr D] then got them a passport, visa and Kurd Faili card. Asked what they based their identity on before they issued the Faili card, he claimed that his uncle and [Mr D] belonged to this group and knew the group. They were issued cards.
The family re-entered Iran on the fake Iraqi passports but had then destroyed them because it was dangerous to keep them. If they were found with these they would have problems. There was no evidence that they entered Iran on these passports other than his verbal claim. Until they left they worked in the [workplace] but tried not to go out much or to on-site inspections. They were very careful and did things quietly.
Asked why he left in 2012 given he had gone along for seven years without problems, he claimed that the children needed identity to study and to go away. The situation in Iran was getting harder and the fear was growing. Asked what happened in Iran in 2012 to increase their fear, he claimed that it was the executing of nuclear scientists and growing government control. It was put to him that he wasn’t a nuclear scientist and he claimed that life was becoming more unstable and they searched people more and they were undocumented and had been asked to leave in 2005 so would have been in trouble if caught.
Asked why he came to Australia rather than go to Armenia or Turkey quickly and with much less risk than going through Imam Khomeini Airport (IKIA). He claimed that exiting through a land border was difficult. It was put to him that country information indicated that land borders were much easier to travel through and that the Iranian/Turkish border was porous and they could have avoided border posts if required. He claimed that they had been forced to Iraq but perhaps going through the land control point may be easier but not bypassing it. He claimed that the people smuggler knew someone at IKIA so this was more acceptable and this was guaranteed by the smuggler.
It was also put to him that he had claimed he may be considered a spy if he returned and country information was put to him that Iranian authorities generally weren’t interested in returnees unless they had a pre-existing political profile. He claimed that Iranians may appear peaceful but the reality is different for people like them.
Since he had been in Australia he had not had any contact with Kurdish or Faili Kurdish groups. He claimed he wasn’t even involved with these groups in Iran and was just here to work and pay taxes. He understood some Kurdish but didn’t speak any. This was because his mother wanted to keep them away from Kurdish and wanted them to be like Iranians. Asked where he got his Kurdish from, he claimed he understood a bit only.
He claimed that he hadn’t seen his children for six years and didn’t want them to have the same life as he had. Asked if he had reported the death of [Mr B] to Iraqi or US authorities, he claimed that he wasn’t in a situation to do that and [Mr D] didn’t initially and didn’t know if he had subsequently. Asked if it might not have been a good idea to warn other Shi’a that there was a Wahhabi gang out there kidnapping Shi’a, he claimed people living there already knew this.
It was put to him that there were concerns that he was an Iranian citizen and perhaps not Kurdish. He wasn’t very inquisitive about his family’s background in Iraq or Iran and it was reasonable that this would be the key piece of information for a stateless person. His accounts of going to Iraq in 1991 and 2005 appeared implausible, given the timing of [Mr A]’s invitation to his sister to come to a conflict zone from a safe Iran and the inability of [Mr B] to insist his sister come to the relative safety of Najaf rather than let her and [her] non-Arabic speaking sons go to a Sunni city of 200,000 in the middle of a civil war where there were only [number] Shi’a families. Other concerns relating to some claims had been raised; individually these claims appeared implausible and the combination of them even more so. There was a concern that he had left Iran on a genuine passport to come to Australia for economic purposes.
He claimed he was not interested in his Iraqi background and didn’t want to belong to Iraqi society. He was raised as an Iranian and he wouldn’t have been made a citizen there. Asked if he knew the Iraqi citizenship laws he said he didn’t but if it was possible his uncle and aunty would have gotten them. It was put to him that his uncles were Iraqi and this may not have come through marriage so he should have been curious as to how the law worked. It may be that he had no interest in Iraqi citizenship laws because he was an Iranian citizen.
He claimed that it was easy to find in the internet age but it was not a place to live even now, which is why he was never interested. Regarding 1991 it was because his father had died and [Mr A] probably thought it was the best way to look after them. Regarding Samarra he was an adult then and they didn’t want to be a weight for his uncle and never thought it would have been so dangerous. Regarding economic purposes he claimed he had no financial difficulties and took a very dangerous boat journey. Asked why he took a dangerous boat journey when he could have gone by road to Armenia or Turkey. He claimed he didn’t know what was in front of him when he left Iran.
Asked how much money was paid to release him in Samarra, he claimed they paid around USD [amount] but they had asked for USD [another amount] he heard from his cousin. Asked why Wahhabis would release him for less than they asked for, rather than taking the money (giving they thought the Shi’a worth nothing) and killing him. They appeared to be polite Wahhabis. He claimed that his cousin told him that if they gave them the whole amount they would ask for more next time. It was put to him that they weren’t commercial kidnappers so they would have taken the money and then killed the applicant. He claimed that they killed the uncle and perhaps God was looking after him.
The applicant’s brother had his hearing conducted by the same member earlier that day and was outside the hearing room. The applicant was asked if he wanted his brother to present any evidence on his behalf; the member indicated that he would not need to ask the applicant’s brother any. The applicant did not ask for his brother to attend as a witness. The adviser then said that at the previous Tribunal hearing the member said that the brother’s evidence would be evidence in the second applicant’s case because the evidence was mutually corroborative. The member said that he would take that issue on board.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived as an irregular maritime arrival [in] April 2012 without documents. He claimed that he is a Faili Kurd in Iran whose family had fled from Iraq. He was interviewed during his departmental interview in the Persian language and has claimed that he is stateless.
The applicant is [an age] year old married man whose family remains in Iran. The applicant fears that he would not be able to return to Iran because he was there illegally, but even if he did return he could be detained and imprisoned, possibly as a spy.
He provided copies of what he claimed were an ID card provided to him by a Faili Kurd group in Iraq, a copy of an old white card and education and vocational training certificates from Iran. For reasons set out below I have found the applicant to be neither stateless nor Kurdish, but rather that he is an Iranian citizen.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he lied to Commonwealth officials fabricated his claims in order to be granted a protection visa. At the request of the adviser I have taken into account the evidence presented by the applicant’s brother/cousin whose hearing was conducted earlier that day, and that the adviser claimed was mutually corroborative. Whilst I agree that the stories were very similar, so implausible were they that I consider the corroborative nature of them to be because they have concocted the accounts together. I am satisfied that their corroborative nature was reflective of their coordination between the applicants, rather than any truth in the claims themselves.
Nationality
I do not accept that the applicant claim that his parents were stateless Faili Kurds resident in Iraq but they fled after his father had deserted from the Iraqi army after being forcibly recruited into it during the Iran-Iraq war. The Tribunal is unaware of any country information that indicates there was forced recruitment of stateless Faili Kurds into the Iraqi army and, while the applicant claimed that such information could be found on the internet, he failed to provide any supporting information to this effect when asked to do so. I also find it curious that he was unaware of whether his two maternal uncles were also forcibly conscripted, given it is reasonable to believe that he would have inquired of his mother as to whether they had served, as this may have given them some claim to Iraqi citizenship.
Indeed his apparently complete lack of interest in Iraqi citizenship laws is not indicative of someone who fears persecution because of statelessness. I do not accept that this was because he felt Iranian and couldn’t move to Iraq and live with people whose language and culture he didn’t know, given the obvious inconsistency with his willingness to try to live in Australia with a people whose language and culture he also didn’t know. While he then claimed that safety was the top priority, this was only after the inconsistency in his claim was pointed out. Regardless of his attitude towards the security in Iraq, it lacks credibility that he would not at least know whether he was eligible for such citizenship, if for no other reason than he would be able to gain a legal passport and travel to a safer country.
I also do not accept that he assumed his uncles had Iraqi citizenship because they had married Iraqi wives. When asked, he admitted that he was unaware of the Iraqi citizenship laws. The post-hearing submission cites Article 8 of the Iraqi nationality law in force at the time as a reason why the uncles may have obtained citizenship as it notes that someone of ‘first or second degree of direct affinity’ to an Iraqi citizen may receive Iraqi citizenship or that cabinet may approve someone who was ‘utilitarian to the country’.
I place little weight on this as it would appear to refer to direct blood relations given any reference to marriage is absent from the wording and it is difficult to believe that his Faili Kurd uncles would have been considered important enough to be considered by Iraqi cabinet as being ‘utilitarian to the country’. I place more weight on the applicant’s complete ignorance of the Iraqi citizenship laws, and lack of any attempt to find out about them that is the more relevant point in influencing the Tribunal’s belief that the applicant is an Iranian citizen.
Rather, I am satisfied that the applicant is an Iranian citizen. He speaks no language other than Farsi, has been educated, married and employed in Iran, and has shown no interest in or knowledge of Iraqi citizenship laws, his extended family background or the way in which to go about trying to prove citizenship that may have allowed him to resolve his statelessness.
Ethnicity
The applicant has claimed to be Kurdish, however I am not satisfied that this is the case. He has presented a card from [an association] from Baghdad but I lend it little weight – they aren’t government-issued cards and have been issued despite the applicant claiming to have no documentation whatsoever, so the basis on which the cards were issued raises grave doubts as to what they actually signify.
I also lend little weight to the photocopy of what he claims was his green card. What has been presented is a photocopy and the date of issue is blank, so it is impossible to use this to verify when the card was valid for, as it would be for any official (or employer) wanting. I also note that the applicant was earlier confused about the period of validity for the respective cards. He said originally in his statement that their green cards were changed to white cards in 1995 (folio 69) but later amended this to the end of 2001/beginning of 2002 (folio 110), which raises further questions in the Tribunal’s mind as to the applicant’s knowledge of the system regulating Kurds’ identities in Iran.
I am also not satisfied with the veracity of his claim that they were given green cards after they were expelled from Iraq in 1991 and his mother renewed their green cards until 1995 when she stopped them out of fear of being returned to Iraq. Given there are no reports of mass returns of Faili Kurds from Iran to Iraq over this period I am not satisfied that this is the case, and am not convinced that an alleged Iranian administrative scheme to remove certain motorbikes from the road through bureaucratic trickery was the catalyst for this. He has not provided any copies of his cancelled green card that would have allowed the Tribunal to lend some weight to.
In addition to the concerns expressed above is the fact that the applicant has proven not to be a witness of truth, speaks no Kurdish, has no links to any Kurdish organisation in Iran or Australia (who may have been able to attest to his Kurdishness), was only ever caught once for his lack of documentation over more than a decade of allegedly being without documents and travelling freely for work, and the fact that he has been fully employed (and as he claimed economically successful) whilst in Iran. I am therefore satisfied that the applicant in neither stateless nor Kurdish, Fayli or otherwise.
Incidents
I do not accept that the applicant returned to Iraq for a period of 15 days in 1991 after the death of the applicant’s father in 1991. To begin with there is some ambiguity over his claims. In his written statement (folio 70) he claimed that ‘Within those 15 days (in which they were in Iraq) the Iraqi Shi‘a intifada started and the Ba’th Party started executing Shi‘a people’, whilst during the hearing he claimed that they moved there in June/July. Given the Shi’a uprising was effectively ended on 29 March 1991 it would appear that their movement was well after the intifada concluded. I am not satisfied with the post-hearing submission’s claim that the applicant’s statement referred not to the ignition point of the intifada but to some point later, even months later. It is, I believe too long a bow to draw.
Regardless, my concern is that I find it implausible that their uncle [Mr A] would ask his Shi‘a sister and her children to come from the peace in Iran to a full-on/ongoing sectarian uprising in Iraq. Indeed, a conflict in which [Mr A] was to allegedly lose his life, thus further illustrating the high risk environment [Mr A] invited his sister to enter. I do not accept that [Mr A] did this because he thought they would be safer with him. Given they were safe in Iran, [Mr A] (and even her other brother [as] well) could have remitted money to their sister in Iran to help her survive economically.

I also do not accept that the applicant and his family were thrown out of Iran after being discovered without valid documentation in 2005. To begin with I have found that he is an Iranian citizen so the circumstances as he described could not have occurred. Additionally, the idea that his other uncle [Mr B], would allow his sister and her [adult] Farsi-speaking sons to go by themselves and live in a house in Samarra during the civil war is entirely implausible. He was put on notice that the Tribunal found his account of travelling to Samarra in 2005 to be implausible and this article[2] from the New York Times in 2005 paints a good portrait of the security situation in Samarra in 2005 at the time, reinforcing the Tribunal’s view.
[2] accessed 5 September 2017
Other aspects of the claim compound the implausibility. Their mother allegedly kept their cancelled green cards so the [adult] male Farsi-speaking sons had no identity documentation at all with which to present to any Iraqi or US military checkpoints unless they were with their mother. A Wahhabi terrorist group just happened to be in a car passing by the shrine site at the same time as the applicant and his uncle were looking for a lift, and they passed no military checkpoints.
Then, these same Wahhabi terrorists who saw him as an infidel Shi‘a were left with a fighting aged, Farsi-speaking male in Samarra and made no attempt to interrogate him as to what a Farsi-speaking adult male was doing in Samarra in 2005, or to make propaganda films of him portrayed as an Iranian spy. Not only that, after receiving much less ransom money than they asked for they simply let him go. Given the ideological nature of their cause, it is reasonable to believe that they would have kept the money and killed the infidel Shi’a rather than let him go.
Because I find that they family never moved to Samarra or that the applicant was kidnapped, it follows that the account of his uncle being shot in front of him was similarly fabricated, as was the claim of gaining a fake Iraqi passport and valid Iranian visa. I do not accept the post-hearing claim that these travel events occurred because they were not well educated or well-versed in geopolitical matters. The mother was in contact with her brother in Najaf who would have been well aware of the circumstances in Samarra in 2005 and made it perfectly clear what awaited them; it would be reasonable that she would have followed such advice regardless of how educated she or the sons were.
Other Issues
Because I do not accept that the applicant is stateless I also do not accept that he left Iran on a false passport (or that he may be regarded as a spy as a result), his children could not get education, he could not get a job, own property or rent a workspace.
Failed Asylum Seeker
Although he made no direct claim on this basis, I have addressed it for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[3]
[3] >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.[4]’ and that Iranian officials do not attempt to prosecute a voluntary returnee.[5] This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’[6]
[4] DFAT Country Information – Iran, 21 April 2016, p 29
[5] Ibid, p 28.
[6] DFAT Country Information Report, Iran, 20 November 2013, p 25
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is a stateless Faili Kurd but rather is a documented Iranian citizen, that he has been stopped and deported from Iran for living there illegally, has been to Iraq twice and forced to return for security reasons, was kidnapped, used fake Iranian or Iraqi passports to travel, would be prosecuted as a voluntary returnee or for seeking asylum or as a spy I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rodger Shanahan
Member

ATTACHMENT A – RELEVANT LAW
1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.
2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
3. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
4. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.

[2017] AATA 2376

17 October 2017

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction