1618764 (Refugee)

[2017] AATA 2002

1618764 (Refugee) [2017] AATA 2002 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618764

COUNTRY OF REFERENCE:                  Iran

MEMBER:Rodger Shanahan

DATE:12 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 October 2017 at 5:18pm

CATCHWORDS

Refugee – Protection visa – Iran – Federal Circuit Court remittal – Social group – Stateless – Ethnicity – Faili Kurdish – Credibility Issues

LEGISLATION

Migration Act 1958, ss 36, 65, 424A, 424AA, 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

1. 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).

2. The applicant who claims to be a stateless, applied for the visa [in] July 2012 and the delegate refused to grant the visa [in] November 2012.

3. 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] November 2016 because the Tribunal failed to invite the applicant to comment on information in accordance with s 424A(1) or s424AA(1).

4. 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.

5. The applicant was represented in relation to the review by his registered migration agent.

   CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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

11. The applicant claimed to be a stateless Faili Kurd born as an only child into a Faili Kurdish family.  His family adopted his [cousin] when [his cousin’s] parents were killed in [an] accident.  In the early 1980s his father decided to take them to Iran as the situation in Iraq wasn’t good for Faili Kurds and Shi’a Muslims.  His father died in [an] accident in 1990 and in 1991 his mother decided to take them back to Iraq illegally and stayed with their [uncle] [Mr A] in Kazimain.

12. They only stayed there for two weeks because the Shi’a intifada started and the Ba’thists began executing Shi’a, including his uncle [Mr A]. They returned to Iran, were detained and put in the [refugee] camp for three months.  They were given a green expelled Iraqi card and returned to Iran.

13. He began his education and married in 2000; he had one son.  In 1995 Iranian authorities announced that all Iraqi green card holders should change their cards to white cards.  They were hesitant to do so, as they had heard that Iranian authorities were deporting Iraqis back to Iraq.

14. In 2005 the Iranian authorities approached them and deported him and his cousin to Iraq, where they stayed for [a number of] days.  They went to Samarra to his great-grandparents’ house.  They were threatened by Wahhabis as soon as they got there.  The second day they were there his uncle and his cousin were kidnapped by terrorists.  The day after, his uncle’s phone rang and he answered it.  The people were talking in Arabic which he couldn’t understand but he heard his uncle say that it was him and they wanted $[an amount] and then hung up.  They called two hours later and told her they wanted $[an amount] otherwise they would kill the uncle and cousin.

15. They raised $[amount] and the applicant took the money to the designated place where there was a [vehicle] with [people] inside.  He left the money and they took it and left and released his cousin the next day but his uncle was dead.  The applicant and [his cousin], with help from his cousin [Mr B] were able to buy fake Iraqi passports and then real Iranian visas, with which they returned to Iran.  However in Iran they have no right to property ownership or access to the public health system.  Without an ID there are many places that he can’t be employed, such as in government offices.  There is also general discrimination against Iraqis in Iran.

    AAT Hearing

16. The applicant indicated that he had been issued a white card, didn’t know when it was issued but his mother got it as he wasn’t old enough to do this.  He referred to a green card, however he was referring not to an Iranian-issued card but a green-coloured card he claimed was given to him by the Faili Kurd Society in Baghdad.  The use of the terms white and green card were explained to him, and he stated that he did not have a green card issued by the Iranian government.  The card from Baghdad was issued to him based on his cousin also being a member of this group.  They did not produce any documents to receive this card – it was done based on their cousin’s identity.  It was put to him that the card would be unlikely to carry any evidentiary weight given the lack of documentary proof needed to be issued by one.

17. He claimed that if he returned to Iran he could not do so as he had no Iranian identity.  He had been in Iran illegally and then that he had been in Iran on a green card.  He could not return to Iran as he was not Iranian.  He was advised that the Tribunal had to establish his country of reference and that the only country that he had indicated that he had resided in was Iran and was again asked what serious harm he feared there. 

18. He again stated that this could not be answered.  He was again asked if he feared serious harm in Iran and said that he did.  He had been living illegally in Iran and he may have been called a spy and his family harmed.  He agreed that he feared serious harm for being a spy and he had no identity in Iran.  He had been deported once from Iran and would be asked why he had returned.  He would be detained and put into prison for being a spy, and then later deported to Iraq again.

19. He was asked to be as precise as possible in making his claims.  He claimed his mother told him that he was born in Iraq and his father was Shi’a and sent to the war by Saddam Hussein.  He claimed there was a difference between being a soldier and being in the military.  The applicant was advised that the member had been in the Australian army for 26 years and the applicant was asked what the difference was between being a soldier and being in the military.  It was established that he meant his father was forcibly made to serve in the military for two years (conscription).

20. He claimed that compulsory service in Iraq was for 10 years, in Iran it was two.  The population of Iraq was 10-12 million and the service was for ten years; he was asked if he had country information to support this as the member believed that the period for Iraq was also about two years, and it didn’t appear plausible that men could be forced to serve for 10 years.  He was also reminded about the need to establish his credibility and that he should make claims based on what he knew to be true, not what he thought to be the case.  He said that he understood.  He then said he repeated what he was told by his mother, and she didn’t know much about politics.  Saddam used to send Shi’a to the war against Iran.

21. He was asked how long his father served and he said that his father fled after a few months of the war and they went to Iran. His father was conscripted a few months after the war started.  Asked if his father was an Iraqi citizen, he claimed his mother said he wasn’t.  Asked how he could be conscripted if he wasn’t a citizen, he claimed this happened to Faili Kurds.  It was put to him that Saddam was expelling Faili Kurds at this time and he agreed that some were.  It was put to him that it didn’t make sense that he expelled and conscripted Faili Kurds at the same time.  He claimed Failis were expelled in 1970 but during the war Saddam needed people. He had read this on the internet. 

22. The member advised that he was unaware of any country information that Faili Kurds were being recruited at the same time that he was fighting and expelling Kurds.  He claimed that Shi’a Kurds didn’t want to secede so they weren’t attacked by Saddam.  He was asked if there was any country information about non-citizen, undocumented Failis were being conscripted.  He was also asked if his father was an Iraqi citizen and his mother said that he wasn’t. 

23. Asked if he ever sought information about his father such as his military records so he could determine his nationality, he claimed his mother and uncle had told him that he wasn’t and this was enough.  The Tribunal told him that it needed to examine what steps the applicant had personally taken to determine issues of citizenship.  The applicant said that he hadn’t made any enquiries with the Iraqi government as an adult as to his father’s citizenship based on his military service, and repeated that his mother told him they weren’t Iraqi.  He was asked if the fact that his father had served in the Iraqi military didn’t raise questions in his mind as to his father’s citizenship and he said that his mother had told them they weren’t Iraqi and they had no Iraqi documents.  

24. When his father deserted the applicant and the rest of the family came to Iran.  He didn’t know what year this was (he was perhaps [age] year old).  He didn’t know anything about this period.  He had never asked his mother details about this period as he was not interested and wanted to forget everything.  He was asked why he didn’t seek as much information about his past while his mother was alive (he was [an age] when she died) to see if he could gain citizenship and to research his family history.  He claimed his uncles ([Mr A] & [Mr C]) were Faili Kurds who married Iraqi women and became Iraqi citizens; he was first aware of this in 1991 when they went to Iraq.

25. Asked if he knew whether Iraqi citizenship could be passed on from Iraqi women to non-Iraqi men at this time as the Tribunal was not aware.  He claimed that he wasn’t there and didn’t know about the Iraqi laws.  It was put to him that until 2005/06 the 1963 citizenship law held and although the member was not positive, the Tribunal believed that citizenship could not be passed on in this way in 1991.  The applicant was asked to provide a copy of the relevant Iraqi law in force at the time that would allow for citizenship to be passed in the manner he described. 

26. He claimed it wasn’t relevant to him and it was put to him that he had claimed they got their citizenship through their wives (he agreed that this was the case) but if this was not possible in 1991 then the uncles must have been Iraqi citizens already which meant his mother would also have been an Iraqi citizen.  If he claimed to have been stateless then it was reasonable to believe he would have been active in determining what citizenship his family members had and how they had received it. 

27. He claimed that [Mr A] was killed around 1991 so he couldn’t speak to him.  They had told him they got their citizenship through their wives.  The second time he went to Iraq [Mr C] was killed.  [Mr C] had one son, [Mr B].  He didn’t know where [Mr A]’s wife was.  He claimed that his mother told him that her brothers married Iraqi wives and they became citizens.

28. After his father’s desertion they came to Iran in 1359/1360 and lived in a small village until his father died in 1369 (1990).  They had entered Iran illegally and went to this particular place (this was according to what he had been told by his mother) as the owner knew someone in Iraq (who his father also knew).  The owner was also a Faili Kurd who had been expelled in 1970 and had been granted Iranian citizenship later. 

29. They had no Iranian documentation once they entered Iran as they simply said they were escaping the war.  As they had no identity they did not register – they did not feel it was important in the villages.  His mother said all their documentations had been destroyed in the war.  Asked exactly how his family’s documents had been destroyed, he claimed that they were told they left Iraq without documents.  His parents didn’t speak much Faili Kurd as they didn’t want to be recognised.  They spoke some Arabic but tried to speak Farsi.  He had been born in Baghdad in a house according to his mother but he never checked.  His mother’s word was enough.

30. In Iraq he didn’t know what his mother spoke but she spoke Farsi in Iran so she wouldn’t be recognised.  Asked where she learnt Farsi given she would have spoken Arabic and perhaps some Faili Kurd.  He claimed that in Iraqi Kurdistan 20-30% of people spoke Farsi.  Most people living in Kazimayn, Karbala and Najaf in Iraq as places of worship spoke in Farsi.  It was put to him that he was living in Baghdad where people didn’t speak Farsi.  He claimed that it was Kazimayn and it was put to him that he said he was born in Kazimayn and he claimed that it was in Kazimayn which was part of Baghdad.

31. He studied for [a number of] years in Iran in a non-government school.  Asked what documentation he had in Iran and when he received it, he claimed that it was in 1991 as a refugee when he returned from Iraq.  Their father passed away and they had gone to Iraq around June/July 1991 – it was the end of Spring, or summer.  They wanted to start a new life, unfortunately it was the time of the Shi’a rebellion.  It was put to him that the rebellion was around the start of February which was winter and would have occurred and finished well before they entered Iraq. He claimed they didn’t go there at the start of the rebellion (intifada) but that it went on for a few months.

32. Their situation was bad as they spoke Farsi and everyone was fleeing; they joined them.  It was put to him that in his statement he claimed they went to their uncle’s house in Kazimayn but only stayed there for two weeks.  Within those two weeks the Iraqi Shi’a intifada started, which meant that they were there at the beginning of the intifada, which was again different to what he said.  He claimed he had said that they were there for two weeks, not that they were there when it started.

33. They returned to Iran and entered through a police station at the border in 1991.  This was around June/July.  They were given a green card at the camp and were given individual cards. His mother contacted the owner of the house they had stayed at previously, and he said he would sponsor them.  His mother renewed the green card for a few years but thinks it wasn’t renewed after 1995; he doesn’t know if he received a white card. 

34. His brother would know.  It was put to him that it was difficult to believe as the only form of ID that he wouldn’t know if he had a white card yet his brother would.  He said he would have to ask his brother.  It was put to him that there was no need to ask his brother as he was an adult claiming to be stateless and it was reasonable to believe that he would know if he had a white card.  He was again asked the question when he didn’t answer the question, and then said that he couldn’t remember. 

35. He didn’t follow it up but thought his brother followed it up but he didn’t check with him.  It was put to him that statelessness was the basis of his claims yet he didn’t appear to have much knowledge of, or interest in what documents he or his brother had.  He claimed he only used his green card twice as there was no need to have a card as no one asked for it.  Where he studied he gave a copy of his green card at the middle [school] – the copy of the card he had presented was the one he had given to the school.

36. It was put to him that he would have been [a young teenager] and yet the photo on the card was someone with a very full moustache.  He asked what year the card was, and was advised that there was no date on the card, just that it was valid for a year.  There were concerns about the validity of the card.  He said that the last time the card was renewed was in 1374 and he was [age] years old and he would have started [school].  It was put to him that the letter from his adviser at the time said that the photo was placed at the time of enrolment – he claimed that the school didn’t change but that every year the card was renewed they gave them a new copy.

37. He also had a sister in Iran.  She was married to an Iranian and was now a citizen.  She was married in 1371 (1992).  Asked if she had an Iranian identity card, he claimed that she had a birth certificate but didn’t know about identity documents.  He was asked to provide a copy of her identity document post-hearing.  He worked in Iran and had no problem while he had a green card.  In 2005 they were going to [a] job – they were speeding and were stopped by police and ID was requested.

38. Three others had ID but he and his brother didn’t.  This was the first time they had ever been stopped and asked for documents.  This was in 2005.  This was the first time in 14 years they had been asked for ID.  They were taken to the police station and the sponsor was called and the out-of-date green cards were produced.  They were told to bring a valid card or that they would be considered illegal.  They were not allowed to renew it when they tried.  Asked why they never renewed it, he claimed this was his mother’s job and they heard there were talks about peace in Iraq and many Iraqis returned there from Iran. They had nothing in Iraq and his mother was scared they would be repatriated.  She was thinking they might get a humanitarian visa because of their circumstances; she said they had no Iranian ancestry. 

1. He never checked because he had no problems and they had a good life.  Asked about his father’s side, he said he didn’t know and didn’t try to find out because he wasn’t interested, even know he wasn’t.  The question of nationality had always caused problems.  It was put to him that if he claimed he had problems because of statelessness yet wasn’t interested in seeking the backgrounds of his parents to see whether he could gain Iraqi or Iranian citizenship it didn’t strengthen his case that he feared statelessness.  He claimed Faili Kurds in Iran had no identity documents and Iraqi and Iranian Kurds were coming to Australia to seek safety.

2. In 2005 they were accused of living in Iran illegally and their sponsor said that the applicant would return to Iraq.  It was put to him that it was very dangerous in Iraq in 2005 and he claimed this was Iranian law.  They went to the border (he, his brother and mother) – he didn’t tell the Iranians he was married.  He was asked about the sponsor having to sponsor his family members.  He claimed he sponsored only the immediate family.  His wife had no green card as her family lived in Iran illegally also.

3. The authorities punched their green card on departure and they were told if they showed this in Iraq the Iraqis didn’t ask for ID documents.  His mother spoke to [Mr C] who told her to come to Najaf but she didn’t accept as her great grandfather and grandfather had a house in Samarra (looked after by [Mr C]).  It was put to her that if they owned the house there must be Iraqi citizenship from her grandfather as he owned it, as did her great grandfather.

4. He didn’t know their nationalities – he was asked whether the ownership raised questions in his mind about the nationalities of his grandfather and great grandfather and a potential solution to his statelessness.  He claimed that buying and selling of land is often done through pieces of paper, not through offices. It was put to him that there was still a title deed so it was unlikely that a Faili Kurd would own a house in Samarra.  It was more likely an Iranian may own a house here.

5. He claimed that many Faili Kurds in Iran owned property and this was only shown on a paper.  He was asked what research he did regarding the property in Samarra – he claimed that his mother told him that the house was purchased by her father.  He was asked whether he went to search the title deeds to see what paperwork he could find.  He claimed he couldn’t speak Arabic and it was put to him that his uncle and cousin spoke Arabic and they could have helped – he claimed they said the same thing as his mother.  He was asked if he requested them to help him to do title deed searches given the seriousness of their situation and that this may help reveal the nationality of the grandfather/great grandfather.  He didn’t ask about the ownership of the house because he claimed this was not his business.

6. They went to Samarra and got the house keys from a neighbour as his mother spoke Arabic.  There was a pamphlet in the house written in Arabic.  He showed it to his uncle who laughed and said it wasn’t important and this happened a lot there.  He and his brother went out to buy something for the house but they didn’t return.  They went to worship first while he stayed at home because his mother was alone.

7. [Mr C] left his mobile at home as out of respect for the shrine they didn’t take their phones, and also so their mother had access to a phone if they needed to call from outside.  It was put to the applicant that the member had been to the large shrine sites [in] Iran and others elsewhere, and mobile phones and photo taking were very common there. One could simply put their phones on silent if that way inclined.  He claimed that people are all different and some have a lot of respect. 

8. He was asked why the applicant didn’t just get a SIM card or [Mr C] drop his son’s phone over as they would have needed a phone while shopping.  He said he never saw [Mr C] again to ask him.  He didn’t know how they went to the shrine.  The phone rang and he thought it was his uncle.  Someone was speaking in Arabic and then they hung up.  They rang again and in the background someone shouted ‘It’s me, [Mr C].  They’ve taken us here and they want USD [amount].’  [Mr C] spoke broken Farsi and said that if they didn’t pay they would be killed.  His mother rang the father of their son-in-law in Iran and told him what happened – she also spoke to their cousin [Mr B].

9. The son-in-law’s father and [Mr B] brought some money and then [Mr B] spoke to the kidnappers direct. They were told to leave the area and he was given a rendezvous to hand over the money.  They found out that the pamphlet they found in the house originally was a threat letter telling dirty Shi’a to leave.  He and [Mr B] went to the address and the applicant went to the meeting because they didn’t want to be recognised so they asked the applicant to go.  He was asked why they just didn’t just cover their faces if they didn’t want to be recognised – it also made little sense they would ask for a non-Arabic speaker to attend a meeting with Arabic speakers.  His cousin was also from Najaf and wouldn’t have recognised them. The claim didn’t make much sense.

10. He claimed that perhaps the accent may have given them away, and they had covered their faces.  He called them Wahhabis because they wore a red keffiyeh.  Wahhabis wore this only.  It was put to him that the member had lived in Saudi Arabia and red, black, white keffiyehs wore worn.  He claimed most Wahhabis wore red keffiyehs – he was asked to provide country information to support this claim.  He then said [Mr B] told him they were Wahhabis and this is why he said this.  It was put to him that he had previously stated this as a fact and not that he was told this by his cousin and the Tribunal needed to assess his credibility.

11. He went to the meeting and it had already been discussed – he wasn’t supposed to talk.  He got out of the car [and] waited.  A [vehicle] came, asked him into the car.  Their faces were covered.  They held a pistol to his head and then took his money and threw him out of the car.  A time later [Mr B] came and picked him up.  In the afternoon someone knocked at the door and it was his brother who was injured.  His forehead and hands were bloody and he said that his uncle had been killed.

12. [Mr B] took his mother to the hospital and said he would organise a fake passport for him and because they didn’t speak Arabic they would have problems.  They left Iraq 10-14 days later; it was around Autumn in 2005.  They were in Iraq for approximately two weeks.  They got the fake passports in about two or three days.  [Mr B] got them from Baghdad and they got Iranian shrine visit visas easily.  [Mr B] got the visas from the Iranian embassy.  The applicant never presented himself to the counter – he entered but his brother didn’t go into the embassy.  There were no problems entering Iran but they threw them away after entering Iran.  They didn’t want to be stuck with illegal documents.  Asked if there was any physical evidence that they used an Iraqi passport to enter Iran he said no – the claim relied entirely on his verbal claim.

13. He continued with the same job and remained un-registered.  [Mr B] sent him the Fali Kurd Association card but he lent it little weight.  His mother had kept their punched green cards but didn’t know why.  It was put to him that he was [age] year-old male in Iraq so he needed his card.  He said that his mother spoke Arabic and they needed to speak to enter Iraq.  He was asked after they entered Iraq and were wandering without their mother – he said they never went without their mother so it wasn’t an issue.  It was put to him that his brother went with his uncle.  In 2005 there were checkpoints everywhere with US soldiers and he had no documentation to show who he was.  He spoke only Farsi and if he turned up at a US checkpoint it would not have been good.

14. He claimed at the time he didn’t think of this at the time.  He repeated that his uncle was with his brother who spoke Arabic.  It was put to him that his uncle would surely ensure that he and his brother needed to keep their punched green card with them inside Samarra. [Mr B] was from Najaf and experienced in Iraqi society during the war.  He claimed they wouldn’t have gone to Samarra if they knew it was so dangerous – their uncle should have told them but he didn’t.  He was asked if he didn’t think going to a Sunni-majority city in 2005 in the so-called Sunni ‘Triangle of Death’ with so few Shi’a there would have been dangerous, and he claimed that he had no information about Samarra. 

15. They had to go there suddenly so there was no reason for him to look up about it.  His mother had rung [Mr B] once and perhaps her uncle may not even have known about Samarra.  He was asked why his uncle didn’t dissuade them about going to Samarra and tell them to come to him to Shi’a-majority Najaf.  His mother didn’t want to bother him or cause issues and had a house in Samarra.  It was put to him that it was strange that [Mr B] would allow his sister to go to Samarra given the danger when she could have gone to Najaf.  He claimed he thought that perhaps it was small and quiet far from the capital and they could perhaps learn Arabic and they owned a house.

16. Asked why they left Iran in 2012 after returning in 2005, he claimed that the laws were not as relaxed anymore and ID cards were being issued.  Weekly they were killing people and Iran had problems with other countries and the government became more severe and punishing.  Asked why they didn’t go to Turkey by the land border without going through a border crossing or going by land to Armenia where refugees were accepted. 

17. He claimed that he didn’t have this information and didn’t think about it but would have gone this way if he knew about it.  His son-in-law told them about Australia, not the other places.  It was put to him that Imam Khomeini airport was a difficult exit point and there were easier exit options as previously mentioned.  This may raise the question as to whether the route he chose was because he had economic reasons to come to Australia.

18. He claimed that the people smugglers directed him this way and didn’t tell him about others.  He claimed it was not as hard as the Tribunal made out.  He also claimed that he had no problems with money so didn’t need a cheap option.  He also said that people had been accepted as refugees in Australia who had not left Iran via Turkey or Armenia.

19. Asked if he was a member of any Kurdish group in Australia, he claimed he didn’t like being Kurdish and had no contact.  He had more Iraqi friends than Kurdish ones.  He didn’t like speaking Kurdish and his mother didn’t speak to them in Kurdish.  She never told anyone they were Kurds and tried to change her accent to make her more like Persian.  They said they were from Ilam.  He was asked if people didn’t think they should have done military service and he claimed he was working illegally and they had no father.

20. It was put to him that he had a brother (and he claimed that the person was his cousin not his brother).  He was asked whether people would have assumed he has a brother and one of them would have done military service.  He said he either worked or studied so nobody saw him outside and they had green cards they renewed so they were known not to be Iranians.

21. Asked how he exited the country, he claimed that the people smugglers told them they would meet someone at the police section who take them through to the second section which was the Sepah where their names would be checked on a computer.  If they were okay to pass they would be allowed to go through and the person would take them through.  It was put to him that the member had been through Imam Khomeini airport a couple of times and he was asked to talk through how he departed from Iran.

22. He claimed he met the person (who was in plain clothes) at [a] shop, he went with them to the first point where they showed their passport and entered.  The person with them had a walkie talkie and a suit and he believed that he worked at the airport.  The officials never stopped the person.  They went into the passport queue and the person with them went and stood next to the person checking the passports on the computer – the person spoke to the person checking the passports and they went through without a problem.  They just walked through the Sepah checkpoint without problem.

23. Asked if he wanted his brother to present something in support of his claim (the Tribunal had no questions of him regarding the applicant’s case).  The Tribunal said it had concerns that the applicant may be an Iranian citizen and not Kurdish.  As someone who claimed to be stateless he appeared to have little knowledge of his family’s background or done much research into it, or tried to leverage information to solve his statelessness.  The Tribunal also had concerns that the applicant ever went to Iraq as claimed in 1991 or 2005 and his claims regarding this were not credible.  He had concerns that he had never tried to leave Iran and in the [number of] years he had no identity documents he had only been picked up for lack of identity once.  His alleged white card had no validity date and his photo didn’t appear to be indicative of the age he claimed to be.  There were significant problems with his credibility.

24. The adviser asked to clarify what photo the Tribunal was referring to and it said it was referring to the white cards that had been presented.  The applicant then asked for time to respond and he claimed he wasn’t Iranian as he would have stayed there had he been.  He had lived there for many years in Iran with a green card.  He couldn’t live in Iraq because it was never calm.  He was just fortunate he hadn’t been searched in Iran other than the one time.  Nobody had ever asked him for ID since he had been in Australia.  Regarding his photo he claimed the photo had been enhanced to darken his moustache; this was the way photos were done.  Lots of Faili Kurds didn’t go to school in Iran but he had done so to make something of himself.

25. Asked how his wife survived the six years past, he said that he sent money sometimes.  He claimed he sent money to [someone] and he passed it to his wife.  He did this through the money exchangers.  He did this every two, three or five months.  He has sent different amounts at times.  She doesn’t work and this was her only income. He claimed houses in Iran had been exchanged just by a piece of paper – the situation in Iraq and Iran was totally different to that in Australia.

26. He was asked about a previous claim where he had claimed that he feared returning to Iran and would be considered a spy yet country information indicated that returnees weren’t of much interest to Iranian authorities if they lacked a political profile and this may be the case with him.  He claimed that he had never been a political person because of his situation and religion didn’t matter to him.  He understood that many Iranians had returned to Iran without problems but because he wasn’t Iranian on return he would be asked all these questions and he lacked any documents or identity.

27. The adviser said that the applicant also relied on his evidence from 2013 and 2015 and stated that he would include the relevant elements in his submission.  He was also asked to provide a copy of the applicant’s sister’s identity or naturalisation certificate (and not her birth certificate) post-hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. 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. 

29. The applicant is [age] year old married man.  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 and then deported to Iraq. 

30. 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.    

31. 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.

32. 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.  

    Nationality

33. I do not accept that the applicant claimed 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 undocumented, stateless Faili Kurds into the Iraqi army and the applicant failed to provide any country information that would support such a claim even though he claimed at one stage that he had read this on the internet. 

34. He also appears to have done nothing by way of individual research into his parents’ antecedents that may have given him an opportunity to establish a claim for citizenship.  He never inquired about his father’s military records regarding his service in the Iraqi army for instance.  I do not accept that he simply accepted his mother telling him that they weren’t Iraqi citizens and they had no documents, or that their documents had been destroyed in the war.  He did not explain exactly how their documents were physically destroyed and, given his father allegedly deserted and the family fled it is reasonable to believe that they would have had the opportunity to take their documents with them.  It is also reasonable to believe that an educated adult would be able to ask his mother some detailed questions regarding the issue and/or conduct his own inquiries with Iraqi authorities (via the Iraqi embassy in Tehran, or through his relatives in Iraq for example) in order to ascertain whether he had a claim to Iraqi citizenship.  

35. The same held for the issue of his claim that his uncles gained Iraqi citizenship through marrying Iraqi wives.  He was unaware of what the laws relating to gaining Iraqi citizenship through marriage were, and it is again reasonable to believe that he would have taken an interest in this process.    

36. The post-hearing submission cites Article 8 of the 1963 Iraqi Citizenship Law 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.  This would appear to refer to direct blood relations and makes no mention of citizenship through marriage.  I am therefore not satisfied that at the time they were married Iraqi women could pass on citizenship to their non-Iraqi husbands.

37. This means that his uncles must have been able to obtain Iraqi citizenship some other way, and there is every chance that the applicant’s mother would have been eligible as well.  Regardless, it is the applicant’s complete ignorance of the Iraqi citizenship laws, and lack of any attempt to find out about them that is the most relevant point in influencing the Tribunal’s belief that the applicant is not stateless.  Again, his reliance on his claim that he believed what his mother told him lacks credibility given it is reasonable to believe that an adult could have made some inquiries into the matter in order to solve his alleged problem of statelessness.

1. Indeed his apparently complete lack of interest in Iraqi citizenship laws is not indicative of someone who fears persecution because of statelessness.  At one point he stated that he didn’t know about his father’s ancestry and wasn’t interested in finding out, nor was he interested in doing so even now.  This is hardly indicative of someone who fears serious harm due to statelessness.  I have taken into account his claim that he never checked about his status in Iran because he had no problems and they had a good life.  This is inconsistent with what he claimed in his protection visa application statement (folio 67) in which he claimed that ‘In Iran we have no right to ownership.  We do not have any right to access the public health system…there is discrimination against those who may be in Iran illegally…There is also general discrimination against Iraqis in Iran, which makes harassment and discrimination very common for us.’

2. Neither is his lack of understanding as to what identity cards they had been issued indicative of someone who fears serious harm due to statelessness.  He believed that their green card wasn’t re-issued after 1995 and didn’t know if they had ever been issued a white card.  I find that it lacks credibility that someone who claims to fear serious harm because of their statelessness would neither have any interest in researching Iraqi citizenship laws or not remember whether he had ever been issued a white card in Iran. 

3. He has also claimed that his sister had married an Iranian citizen and was now an Iranian citizen after marrying an Iranian.  He was asked to provide a copy of her national identity document or her citizenship certificate post-hearing but only offered a birth certificate (which was specifically not asked for).  I note however, that the birth certificate is in Farsi and lists her place of birth as Baghdad.  There is no explanation as to why the Iranian authorities would issue a birth certificate to an undocumented Faili Kurd.

4. It is reasonable to conclude that this lack of interest in citizenship laws or of documentation is because the applicant is not, in fact, stateless.  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

5. 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] of Iraq from Baghdad but I lend it little weight – it isn’t a government-issued card and has 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.

6. I also lend little weight to the photocopy of what he claims was his white 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 to verify its validity. 

7. 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

8. I do not accept that the applicant returned to Iraq for two weeks in 1991 after the death of the applicant’s father in 1991, or that they were detained for three months on return to Iran.  To begin with there is some ambiguity over his claims.  In his written statement (folio 69) he claimed that ‘Within those two weeks (in which they were in Iraq) the Iraqi Shi‘a intifada started (my emphasis added) and the Ba’th Party started executing Shi‘a people’, whilst during the hearing he claimed that they moved there in June/July (the end of Spring or Summer), and that he had not said they were in Iraq when the rebellion started.  Given the Shi’a uprising was effectively ended on 29 March 1991[1] it would appear that their movement was well after the intifada concluded.  I am not satisfied with the argument put forward in the post-hearing submission that the applicant’s statement referred not to the ignition point of the intifada but to some point later, even months later.   

   [1] accessed 6 October 2017

9. In addition 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 during which [Mr A] was allegedly executed, thus further illustrating the high risk environment  [Mr A] allegedly invited his sister to enter. 

10. 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 C], would allow his sister and her [adult] Farsi-speaking sons to go by themselves and live in a house in Samarra in 2005 during the civil war is entirely implausible  

11. Other aspects of the claim compound the implausibility.  Their mother allegedly kept their cancelled green cards which meant 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.

12. The applicant also claimed that he was asked to go to the meeting alone with the Arabic-speaking kidnappers even though he spoke no Arabic himself.  I do not accept that this was because the kidnappers may have been recognised by the applicant’s cousin, given they could easily have covered their faces (as is seen in images of terrorists in Iraq) and the cousin was from Najaf, not Samarra so would not have known them.  Nor do I accept that picking someone’s accent during a civil war in Iraq serves as much of an identification of an individual. 

13. Because I find that they family never moved to Samarra or that the applicant’s brother/cousin was kidnapped, it follows that the account of his uncle being shot by the kidnappers was similarly fabricated, as was the claim of gaining a fake Iraqi passport and valid Iranian visa to ‘re-enter’ Iran.

    Other Issues

14. Because I do not accept that the applicant is either stateless or Kurdish, but is in fact an Iranian citizen 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 – folio 62 refers), he could not get a job with the government, own property, access the public health system or that he would be discriminated against because he was an Iraqi or because he was Kurdish. 

    Failed Asylum Seeker

15. Regarding being persecuted as a failed asylum seeker and considered to be a spy, I am not satisfied that either would occur.  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.    

16. 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.’[2] and that Iranian officials do not attempt to prosecute a voluntary returnee.[3]   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’[4] 

    [2] DFAT Country Information – Iran, 21 April 2016, p 29

    [3] Ibid, p 28.

    [4] DFAT Country Information Report, Iran, 20 November 2013, p 25

17. He has not offered any country information to support his claim that he would be considered a spy, nor is any country information available to the Tribunal that would support such a claim.

18. 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

19. 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, had his brother kidnapped and uncle executed in Iraq in 2005, 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.

20. 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

21. 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).

22. 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).

23. 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

24. 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.