1707843 (Refugee)

1707843 (Refugee) [2018] AATA 1004 (7 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707843
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Louise Nicholls
DATE:7 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Statement made on 07 March 2018 at 4:58pm

CATCHWORDS
Cancellation – Refugee – Protection visa – Stateless – Iran – Providing incorrect answers in visa application – Citizenship – Race – Faili Kurd ethnicity – Iranian citizenship – Civil rights – Attacks from Basij militia – Airport departure processes – Bribes

LEGISLATION
Migration Act 1958, ss 5, 97-105, 107-109

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

The applicant claims to be a stateless Faili Kurd born in Iraq, but expelled from Iraq to Iran and living there until he departed for Australia in 2009. He arrived [in Australia] as an irregular maritime arrival [in] November 2009. He was granted a protection visa [in] February 2010 on the basis that he was a stateless Faili Kurd in Iran and required protection.
[In] April 2017 the applicant’s Subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that he found that the applicant had provided incorrect information in his protection visa application, that information being, that he was a stateless person. The delegate referred to the applicant’s children’s Iranian passports which, taking into account country information on Iranian nationality, indicated that the applicant was an Iranian citizen. Taking into account discretionary factors the delegate decided that the visa should be cancelled.
This is an application for review of that decision.
The applicant appeared before the Tribunal to give evidence and present arguments on two occasions; the first hearing was held on 17 October 2017 and the second adjourned hearing was held on 27 November 2017. The applicant gave evidence about his background, his travel to Australia, his claims for protection and his current circumstances. The Tribunal also discussed relevant country information regarding Iranian citizenship and airport departure processes.
The Tribunal also received oral evidence from the applicant’s wife and eldest child. 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. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
What evidentiary material is before the Tribunal?
The Tribunal has before it a number of Departmental files and the delegate’s decision record. It also has the oral evidence of the applicant, the applicant’s wife [named] and the applicant’s daughter, [named].
The Departmental files contain some documents which are relevant to the consideration of cancellation, including,
Department’s Cancellation File [number].
·            Notice to Consider Cancellation (NOICC) of the applicant’s protection visa (Class XA)(subclass 866) - [issued in] August 2016.
·            The applicant’s representative’s request for further time to provide a full response to the NOICC and a short response to the NOICC- [in] August 2016
·            A statutory declaration made by the applicant [in] August 2016.
·            Delegate’s cancellation decision dated [in] April 2017 (This document was given to the Tribunal by the applicant).
Department’s Protection Visa File for the applicant [file number].
·            Record of applicant’s Entry Interview [in] November 2009.
·            Refugee Status Assessment Application Form.
·            Applicant’s statutory declaration made [in] December 2009.
·            Form 80 Particulars
·            RSA interview with Departmental officer [in] December 2009.
·            Protection Visa Decision Record [in] February 2010.
Departments Refugee and Humanitarian (class XB) file [for the applicant’s wife] [file number]
·            Application for offshore humanitarian visa [in] May 2010.
·            Translation of handwritten Persian marriage contract between the applicant and [his wife] on or about [in] 1999[1] witnessed by the parties and witnesses and original marriage contract.
·            Copy of the biodata page of [the applicant’s wife’s] Iranian passport and accompanying persons. The passport notes that the bearer is accompanied by the two children [named].
·            [The applicant’s wife’s] Iranian identity card.
·            Photographs of the applicant, his wife and children taken in Iran.
·            Record of interview with [the applicant’s wife] [in] May 2011.
·            Departmental request for additional information [in] May 2011.
·            Hospital birth records for [the children].
·            Vaccination and health cards for [the children].
[1] Date of marriage is expressed in the Persian calendar.
Background
The applicant gave oral evidence that he is [age] and is of Faili Kurdish ethnicity and a Shia Muslim. He claims he was born in Baghdad. He stated he was illiterate as he had been removed from school twice in Iraq during his childhood.
His family were expelled from Iraq to Iran during the reign of one of the Iraqi kings. They were later returned from Iran to Iraq but during the time of Saddam Hussein he and his family were expelled to Iran for a second time. His father has now passed away but his mother is still living in Tehran. She lives on her own but has one brother and sister living in Iran. The applicant can speak Faili Kurdish, Persian and Iraqi Arabic.
He was quite young when the family were first expelled from Iraq but remembers that it was a painful experience. He remembers being put in a truck and being taken to the border.
After the second expulsion his parents obtained “green cards” but that card was taken from him about 12 to 13 years ago. He was about [age] years old at the time. He is not entirely sure why the card was taken from him. He thought that the card had to be renewed on a yearly basis and one year the expired card was taken and not renewed. He stated that as far as he knew some cards were renewed and others were not but he did not know why his card was not renewed.
He married his current wife in [Village 1], a village close to the Iran/Iraq border in 1999. His wife is a cousin and is of Kurdish ethnicity. His wife is an Iranian citizen. Her father was Kurdish but was able to obtain a national identity card. As a consequence when his wife was born she was able to obtain a birth registration certificate (shenasmane) and subsequently her own Iranian passport.
The applicant worked as [an occupation] in Tehran and the family lived in a rented apartment.
The couple have two children; [a daughter] who is [age] years of age and [a son] who is [age] years of age. He stated that the children did not have formal schooling in Iran as they did not have birth registration certificates (shenasmane). Documents in the Department’s file indicate that [their daughter] was home schooled by the applicant’s wife who has been educated in the Iranian school system. At the time the applicant left Iran his [son] was too young to attend school.
The applicant arrived in Australia in November 2009 by boat. He left Iran through Iman Khomeini International airport in Tehran using a false passport. He flew to [another country] using that passport but it was eventually taken by the people smuggler who was organising his travel.
The applicant’s wife applied for a humanitarian visa in 2010 but her application was affected by the change in government policy in 2013 regarding family reunions. Under the new policy announced at that time the applicant’s wife and the children would have to have waited many years before their applications were processed.
As a result of this change the applicant’s wife and children departed Iran through the international airport in Tehran and organised passage to Australia by boat through a people smuggler. The applicant’s wife gave evidence at the Tribunal hearing that she did not realise that the boat journey would be as difficult or dangerous as it turned out to be and if she had been aware of the dangers she would not have put herself or the children at such risk. She handed her Iranian passport to the people smugglers and lost her shenasname during the sea voyage to Australia.
The applicant stated that he is in poor health and currently in receipt of Centrelink benefits. His representative points to numerous health problems outlined in a number of medical documents. The applicant’s wife told the Tribunal that his condition has deteriorated and that she did not consider that he was currently fit to work. The applicant’s wife has been attending college courses to improve her language skills and has successfully completed a number of [tertiary] courses in [subject].
At the time of the hearings the applicant’s children had been attending school; [their daughter] had just finished her Higher School Certificate and hoped to enrol in a [tertiary] course at [an education provider]. She has provided a large number of attainment certificates from [her] School and teaching references which indicate that she is a diligent and conscientious student. [Their son] has been attending [another] School and has provided a number of awards and certificates which indicate that he has been an active participant in school, sport and extracurricular activities.
CONSIDERATION
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
What were the particulars of non-compliance set out in the notice?
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects:
·            [In] November 2009 the applicant arrived [in Australia] as an irregular maritime arrival.
·            [Days later] he was interviewed by an officer of the Department with the assistance of an interpreter in the Kurdish Faili language.
·            The applicant claimed he was born in Baghdad and was of Kurdish Faili ethnicity. He claimed he was removed from Iraq and entered Iran illegally.
·            He claimed he was married to [his wife] and had two children, [named].
·            He claimed his spouse is an Iranian citizen but his children were not citizens due to nationality laws in Iran as citizenship is dependent on the paternal line.
·            The applicant’s claims for protection were contained in his statutory declaration of [December] 2009. He claimed that he would face persecution in Iran because of his status in Iran as a stateless Faili Kurd. He claimed he had no civil rights in terms of employment or education, and he cannot buy a house or car or open a bank account. He has always been denied social rights to identity documents to recognise him as an Iranian citizen. He has always lived in fear of the Iranian authorities and the Basij militia because of the harassment of Faili Kurds.
·            He claimed that eight months prior to his arrival in Australia he was stopped one night by the Basij, assaulted and had his money stolen due to his ethnicity as a stateless Faili Kurd with no identification. He claimed his mother and wife have been mocked in Iran in people because of their dress and ethnicity. He claimed that since the election things became worse for Faili Kurds and the Basij do not have mercy on Faili Kurds.
·            He claimed he would be unable to return to Iraq because he is Shia Kurd and if he returns to Iran he will be killed because his ethnicity and because he left the country illegally.
·            On 2 February 2010 the applicant lodged a form 866. His name on the form was [applicant’s name variant].
·            He listed his wife’s country of birth and citizenship as Iran; he listed his children’s details including the country of birth as Iran and their citizenship as stateless. He stated he was born stateless.
·            He stated he is seeking protection in Australia so he does not have to go back to Iran.
·            He referred to his statement submitted with his RSA assessment ([in] December 2009) for;
·the reasons he left Iran,
·what he thinks might happen to him if he returns to Iran,
·who he thinks may harm mistreated him if he returns,
·why he thinks this will happen to him, and
·whether he thinks the authorities can and will protect him if he returns.
The delegate noted
·            The applicant’s protection visa was granted [in] February 2010 on the basis of being a stateless Faili Kurd in Iran and requiring protection.
·            [In] May 2010 the Department received an application for a Global Special Humanitarian Class XB (subclass 202) visa in relation to his spouse [named] and his children [named]. The applicant was the proposer for the application and listed as the spouse of [his wife] and father of [his two children].
·            As part of the application [the applicant’s wife] provided her Iranian passport and police clearance. Birth records and vaccination certificates in relation to the applicant’s children were also provided as identification for [the children]. The applicant was listed as the father of [the children] on the birth records.
·            On [the applicant’s wife’s] Iranian passport [the children] are both listed as her dependents.
·            [The applicant’s wife’s] Iranian passport is evidence that she and the applicant’s children [named] hold Iranian citizenship.
·            Country information indicates that according to the nationality laws of Iran the applicant’s wife’s Iranian’s passport would not list his children [named] as dependents unless they are Iranian citizens. The fact that the children are listed as Iranian citizens in his wife’s passport indicates that he is an Iranian citizen and not stateless as claimed in his protection visa due to the operation of Iranian nationality laws that stipulate children in Iran acquire citizenship through the paternal line. In addition [the children’s] Iranian birth certificates and vaccination certificates would not have been issued if their father was not an Iranian citizen.
Therefore the delegate considered that the applicant was an Iranian citizen and not stateless as claimed in his application for a protection visa.
On the basis of the information set out in the notice the delegate considered that the applicant had not complied with s.101(b) of the Act because he provided incorrect information to the Department in support of his application. Specifically he considered that he provided incorrect information in the application form in the following manner.
·            By answering “stateless” to question 9 in part B of the form 866 where it asks “Citizenship?” in reference to his children [named].
·            By answering “Born stateless” to question 23 in part C of the form 866 which asks “if you are stateless, how, and when and why did you lose your citizenship?”
·            By answering “See statement already submitted with RSA application” to question 42 “Why did you leave that country?”
·            By answering “See statement attached RSA application” to question 44 which asks “Who do you think may harm/mistreat you if you go back?”
·            By answering “See statement attached RSA application” to question 45 which asks “Why do you think this will happen to you if you go back?”
·            By answering “See statement attached to RSA application” to question 46 which asks “Do you think the authorities of that country can and will protect you if you go back?”
In the NOICC the delegate put it to the applicant that he had not complied with s.101 of the Act as it appeared he had provided incorrect information to these questions in his subclass 866 protection visa application.
What was the applicant’s response to the notice (s.109(1)(b)?
In his short response to the NOICC [in] August 2016 the applicant maintained that he is a stateless person and has never been granted Iranian citizenship. He stated that his two children’s names have been added to his wife’s passport by the payment of bribes as consistently maintained in previous representations to the Department. He submitted that the children’s Iranian vaccination cards do not record nationality. The applicant claims he has never provided false, misleading or incorrect information to the Department.
[In] August 2016 the applicant provided a statutory declaration giving a more comprehensive response to the NOICC. He stated that the delegate accepted that the applicant was of Kurdish Faili ethnicity but put it to him that he had been granted Iranian citizenship and was an Iranian citizen. This proposition was based on the fact that his children’s names are included on his wife’s passport and that as the nationality laws of Iran provide that the citizenship of children is based on their father’s citizenship, by inference, he must be an Iranian citizen.
The applicant points to his wife’s interview with the Department held in Tehran [in] May 2011 where the interviewer asked the applicant’s wife how her children could be listed on her passport as Iranian if their father was stateless. She stated that her father in law paid a bribe to get children listed on the passport.
He stated that the cancellation of his protection visa after almost 6 years of having lived in Australia and the intensifying fear of being forcibly sent back to Iran is keeping him and his wife awake all night and having a terrible impact on his health.
He states that he does belong to the Faili Kurdish minority and his parents were also of the same ethnicity.
He was born and raised in Iraq until his whole family was deported to Iran when he was about [age] years of age. At the time of his statement his parents were still living in Iran without being granted Iranian citizenship. They are both very old and the applicant and his wife provide them with as much financial support as they can.
The applicant speaks an Iraqi version of Arabic and the Faili Kurdish language with ease and fluency. He is also able to speak in standard Persian. He stated he has never been granted Iranian citizenship and his two children have never been granted Iranian citizenship. He and his two children are not eligible for the grant of Iranian citizenship. He has never made any false or misleading claims in statements to the Department.

He stated that there are over 1 million refugees in Iran mostly of Afghan and Iraqi nationality and he has never heard of any of them having trouble vaccinating their children. The evidence of his children’s birth cards or the vaccination cards do not refer to the nationality of the children or their father’s. They are mostly issued in his wife’s name.
If he had any document as proof of his Iranian citizenship he had no reason to register his marriage in [1999] by a religious clergyman in the small Kurdish village of [Village 1]. He has never had an officially accepted marriage registration certificate and if he was legally entitled to register a marriage with his citizen wife you could have done so through the standard legal ways in Iran.
His wife has always declared her nationality as Iranian and her ethnicity as Faili Kurdish. There are no documents which prove that he is an Iranian citizen because no such document has ever existed.
Delegate’s decision
In the cancellation decision the delegate found that the applicant had not complied with s.101(b) of the Act because he provided incorrect information in, and in support of, his application for a protection visa.
Specifically the delegate found he provided incorrect information;
·     By answering “stateless” to the question of citizenship in relation to the applicant’s two children -question 9 in part B of form 866.
·     By answering “born stateless” to question 23 in part C of form 866 which asked “If you are stateless how, when and why did you lose your citizenship?”
·     By answering “see statement already submitted with RSA application” to question 42 which asked “why did you leave that country?”
·     By answering “see statement attached to RSA application” to question 43 which asked “what did you fear may happen to you if you go back to that country?”
·     By answering “see statement attached to RSA application” to question 44 which asked “who do you think may harm/ mistreat you if you go back?”
·     By answering “see statement attached to RSA application” to question 45 which asked “why do you think this will happen to you if you go back?”
·     By answering “see statement attached RSA application” to question 46 which asked “do you think the authorities of that country can and will protect you if you go back?”
The delegate found that the applicant was granted refugee status on the basis that he was a stateless Faili Kurd and would face persecution in Iran. The delegate found that this was not correct information as the applicant was an Iranian citizen.
The delegate gave as his reasons for the decision that in May 2010 the Department received an application for a Global Special Humanitarian (subclass 202) visa in relation to the applicant’s spouse and two children [named].
As part of the application, the applicant’s wife provided her Iranian passport and police clearance. On her passport the children were listed as dependents. The delegate stated that birth records (shehnasnames) and vaccination certificates in relation to the children were also provided as identification.
The delegate stated that according to Iranian nationality laws, citizenship for those under the age of 18 can only be acquired by the paternal lineage, that is, through their father. Consequently, the applicant would have needed to be an Iranian citizen when his children were born in order for them to be included on their mother’s Iranian passport. According to Iranian law the applicant’s wife’s passport would not list his children as dependents unless they were Iranian citizens. Furthermore, their mother produced a type of birth record (shehnasmanes) for the children which are only issued to Iranian citizens.
The applicant is listed as the father to [his two children] on the birth records. The delegate found that the applicant’s wife’s Iranian passport is evidence that she and the applicant’s children hold Iranian citizenship. The fact that the children are listed as Iranian citizens indicates that the applicant is also an Iranian citizen and not stateless as claimed in his protection visa application.
The delegate did not accept that the children had been listed as dependents on their mother’s passport through the payment of a bribe to an Iranian government official. The delegate found that the evidence showing that the children are Iranian citizens was compelling and significantly outweighed the improbable counterclaim provided by the applicant. The delegate found that grounds for cancellation existed and then went on to consider whether the visa should be cancelled taking into account the matters set out in s.109 of the Act.
Evidence before the Tribunal
The applicant provided the Tribunal with a copy of the cancellation decision, a statutory declaration made [in] September 2017, an English translation and copy of a handwritten marriage contract made [in] 1999, medical records for the applicant and educational documents relating to the applicant’s wife and two children.
The Tribunal held two hearings and took evidence from the applicant, his wife and his daughter.
The applicant gave oral evidence that he was of Faili Kurdish ethnicity and was born in Iraq but was finally expelled together with his family during the time of Saddam Hussein. He stated that he had never been granted Iranian citizenship and had no Iranian identity card or passport.
He stated that the information he gave to the Department in connection with his application for protection was truthful. He denied being an Iranian citizen and denied providing false or inaccurate information.
With respect to his children, [named] he stated that they have never held Iranian birth registration certificates (shenasname).
He stated that the children had birth records provided by the hospitals in which they were born but they have never had their births registered or obtained official birth certificates. He stated that his wife had an Iranian passport and he had always disclosed her Iranian citizenship.
When the applicant’s wife applied for a humanitarian visa he understood that she needed passports for herself and the children so that they could depart Iran. She was entitled to a passport and obtained her passport in July 2010. Her father in law arranged for her children to be included on the passport by bribing a government official.
The applicant’s wife gave evidence that she is [age] years of age, is of Faili Kurdish ethnicity and was born in Iraq. However she and her family moved to Iran when she was a very young child and her father acquired Iranian citizenship which entitled the applicant’s wife to a shenasmane and an Iranian identity card.
She attended school in Iran and completed her secondary education. She did not work after she finished school but could speak Kurdish, Persian and a little bit of English. The applicant was questioned about how she obtained her passport and how she was able to have the children listed as dependents without shenasnames for them. She stated that her father in law arranged for the passport and she understood a bribe had been paid but she was not involved and did not know the exact details. All she had to go was provide passport photographs of the children.
She needed the passports to give to the Department of Immigration. At the interview she provided a photocopy of the passport but was told to provide whatever documents she had regarding her identity and the children. So her father in law arranged for the children to be listed as dependents and she gathered other documents including hospital birth records, health cards, vaccination certificates and a handwritten marriage contract. They also attended medical examinations.
However, in the end they did not get humanitarian visas and they had to wait to hear more about their visas. They waited 2 and half years and then were told they would have to wait another 7 years so her father in law arranged their travel through a people smuggler. She was not told about the dangers of travelling by boat and when they were at sea she feared death every day. Her father in law gave her passport to the people smuggler who helped them through the airport. She does not know what happened to the passport.
The applicant’s wife also had an Iranian shenasname but it was in her bag whilst on board the boat to Australia. The boat started sinking and everyone had to throw their possessions overboard. She did not have that document when she arrived in Australia.
The Tribunal discussed the documents she gave to the Department to support her humanitarian visa application. The original documents were held on the Department’s file and the Tribunal presented each to the applicant’s wife and then to the interpreter who identified the followed Persian language documents;
·     The applicant wife’s vaccination records.
·     The birth records of [the two children] provided by [a named] Hospital[2], where the children were born.
·     [The daughter’s] vaccination records (the interpreter noted that there was no birth registration number on the card)
·     [The son’s] vaccination record without a birth registration number.
·     [The son’s] health card including a record of [a specified] testing.
[2] [Details deleted.]
The Tribunal put it to the applicant and his wife that the critical issue in the review was whether the applicant’s children were Iranian citizens. If they were Iranian citizens then by inference the applicant must be an Iranian citizen as they acquired their nationality through their father’s nationality and not their mother’s. If this was the case then the applicant had provided incorrect information in connection with his protection visa application.
The Tribunal also put it to the applicant that country information indicated that it was highly unlikely that a person could depart Iran with a false passport because the Iranian airport authorities checked those departing on Iranian passports against the national registration database. Presumably this meant the children’s details would have been checked at the departure point to ensure that they were leaving legally.
The applicant’s wife stated that someone met them at the airport and they followed him through the check-in and departure checkpoints. He helped them with their bags, through barriers and they had no problems leaving the airport. The Tribunal put it to the applicant that under Iranian law, the children’s father needed to give permission for them to leave Iran. She did not know how this was managed as all the departure arrangements were made by her father in law.
Following the first hearing held on 17 October the Tribunal wrote to the applicant on 27 October 2017 and provided some extracts of country information relating to the issue of Iranian passports and circumstances surrounding departure from Iran as well as copies of original identity documents held on the Department’s Refugee and Humanitarian (class XB) file for [the applicant’s wife], that is, [file number].
Essentially the country information noted:
·            That an application for minor children to be included on a passport requires an application form, photographs and the submission of the child’s shenasname. The children’s male guardian must fill out the form.[3]
·            The removal of a child without a legitimate passport is a criminal act.[4]
·            Nationality and citizenship is derived through paternal lines and children are not automatically entitled to Iranian citizenship unless their father is an Iranian citizen. Subject to some exceptions which do not cover the applicant’s situation, if children are entitled to Iranian citizenship then their father would be an Iranian national.[5]
·            Marriage certificates include Iranian identity numbers for both bride and groom. [6]
·            [7]The Iranian government maintains a database of personal details of all citizens, linked to their national identity number.
·            Given the sophisticated nature of the documents and the rigorous departure screening at airports and other official border checkpoints most sources agree that successful exit from Iran on fraudulent shenasnameh, NICs or passports would be rare[8].
·            However, sources did not discount the possibility of forged or fraudulently obtained identity documents and other civil documentation being used within Iran.[9]
[3] Application procedures for Iranian passports’, Embassy of the Islamic Republic of Iran, The Hague,
[4] Provisions on Child Abduction in Non-Hague Countries’, Law Library of Congress (United States),
May 2015, p. 16, CISEC96CF14731
[5] ‘Feyli Kurds—obtaining identity travel documents’, DIBP Tehran, 17 September 2015, p. 8,
CISEC96CF13392
[6] Feyli Kurds—obtaining identity travel documents’, DIBP Tehran, 17 September 2015, p. 8,
CISEC96CF13392
[7] ‘National Organization for Civil Registration’, Personal Status Registration Organisation (Iran) pp. 35–47, CIS27449
[8] ‘DFAT Country Information Report Iran’, Department of Foreign Affairs and Trade, 21 April 2016, p.
30, CIS38A8012677
[9] ‘DFAT Country Information Report Iran’, Department of Foreign Affairs and Trade, 21 April 2016, p.
On 27 November 2017 the applicant’s representative wrote to the Tribunal responding to the information set out in that letter. The applicant maintains that he has not provided any false or misleading information in his protection visa application. He pointed out that his wife’s Iranian passport stated the father’s name is [the same as the applicant’s name] which was an indication that the issuing authority had no access to any reliable nationality document to establish the identity of the children’s father whose name is [the same name].
The applicant asserts that he is a stateless person of the Faili Kurdish ethnicity and that forced repatriation will have devastating consequences for his own already fragile health as well as his family’s welfare and well-being.
With respect to the reasons given for the cancellation decision the applicant notes that it is alleged he concealed his nationality for the sole purpose of achieving a favourable protection outcome. This finding however is not based on independent evidence that proves in isolation that the applicant has Iranian nationality, that is, there is no Iranian birth certificate, national ID card or driver’s license.
He submitted that the delegate’s finding that he has provided inaccurate information has been predicated upon the inclusion of his children’s names in his wife’s passport. He submits that there was no consideration by the delegate of the fact that the couple entered a customary marriage which has not been validly registered with the Iranian officials and national authorities. This handwritten document dated [March] 1998 [sic] is a strong indication that the marriage has not been officially registered. Given the apparent lack of registration it would be reasonable to assume that there has been an impediment to registration of the marriage. It can be inferred that this motivated the parties to resort to having their matrimony sanctioned by a village chieftain.
He submitted the delegate’s findings relating to the applicant’s alleged nationality are entirely based on the documents that have been voluntarily submitted to the Australian Embassy in Tehran. None of those documents can directly and independently establish the applicant’s alleged Iranian nationality.
The applicant’s representative submits that the Iranian nationality laws have a number of exceptions to the concept of paternal lineage and refers to Article 976 of the Iranian Civil Code.
Country information on Iranian identity and personal status documents.
‘A national identity card is mandatory to all Iranians aged 15 years and over. It is valid for seven years. An individual’s shenasname is required when applying for a national identity card.[10]
[10] ‘Obtaining Your National ID Card’, Embassy of the Islamic Republic of Iran, The Hague, 14 September 2015, CXBD6A0DE13511. See also ‘National Organization for Civil Registration’, Personal Status Registration Organisation (Iran), n.d, p. 27, CIS27449
Shenasname’ is frequently translated as ‘birth certificate’, but it is much more detailed and important than birth certificates issued in Australia. The shenasname is a small, passport-style book issued to all Iranians at birth. The shenasname records names and identity numbers of the individual and parents. It also records marriages, divorces, military service, births of any children, and the death of the person. It is valid for the lifetime of the bearer, but the photo must be updated periodically. A minor’s shenasname does not contain a photo but an adult’s does.[11]
[11] DFAT Country Information Report Iran’, Department of Foreign Affairs and Trade, 21 April 2016, ss. 5.43–5.45, CIS38A8012677; ‘IRN105037.E - Iran: The new format of the shenasnameh (birth certificate), including physical characteristics, security features, and period of validity; application procedures and requirements; whether citizens are required to replace their shenasnameh’, Immigration and Refugee Board of Canada, 16 January 2015, OGFDFC61A9
DFAT provides the following advice in regards to obtaining a shenasname for newborn children:
Hospitals issue birth certificates for newborn children. Parents submit these certificates along with their own National Identity Card or shenasnameh to the local Office for the National Organisation for Civil Registration (ONOCR). A child’s shenasnameh is then issued by the ONOCR… Birth registration of all children is compulsory and must occur within 15 days of birth.[12]
[12] ‘DFAT Country Information Report—Iran’, Department of Foreign Affairs and Trade, 21 April 2016, s. 5.43, CIS38A8012677
According to English-language pages of the National Organisation for Civil Registration website, in order to apply for an infant’s shenasname, both parents’ shenasnames, the certificate of birth issued by the midwife, and the presence of one of the parents is required.[13] DFAT reported in April 2011 that an official marriage certificate (i.e. not a religious document) must also be provided.[14]
[13] 30 ‘Birth Registration’, National Organisation for Civil Registration (Iran), n.d., p. 1, CISEDB50AD5541.
[14] ‘Response to IRN 11573: Acquisition of Iranian citizenship by marriage for Faili Kurd and stateless woman’, Department of Foreign Affairs and Trade, 14 April 2011, CX262815
In July 2005, UNICEF released a detailed report on birth registration in Iran that commented on the difficulty in obtaining a shenasname for children born in an unregistered marriage or to a parent who was a non-Iranian citizen. The report states that birth registration but not shenasnames are available to non-nationals:
By Iranian legislations, non-nationals can register their children’s births but cannot get birth certificates [i.e. shenasnames] easily because having a birth certificate means proof of Iranian nationality. This question of nationality is one of the most sensitive and complex aspects associated with Birth Registration and can compromise the registration of a child.
...As entry to the State for most asylum-seekers, especially Afghans, is not legally registered, marriages cannot be registered with the result that their children cannot get birth certificates.[15]
[15] 32 ‘Birth Registration in Iran: An analysis of the state of relevant laws in Iran’, UNICEF, July 2005, pp. 7–8, CIS17967
Registered stateless Faili Kurds are able to register their marriages, however, unregistered stateless Faili Kurds cannot.[16]
[16] ‘Feyli Kurds—obtaining identity travel documents’, Department of Immigration and Border Protection, 17 September 2015, p. 5, CISEC96CF13392; ‘DFAT Thematic Report—Faili Kurds in Iraq and Iran’, Department of Foreign Affairs and Trade, 3 December 2014, s. 3.42, CIS2F827D91722
DFAT reports that
5.46 Iranian passports are issued to nationals of Iran for the purpose of international travel. Passports serve as proof of Iranian citizenship. Iran has issued diplomatic and service biometric passports since July 2007. Ordinary biometric passports have been issued since February 2011.
5.47 Applicants for a passport are required to provide completed copies of the application form; their original Iranian Birth Certificate (shenasnameh); photocopies of all the pages of the Birth Certificate (containing an ID photo); the original and a copy of their Residence Permit card (IND issued document); and three passport photos taken within the past six months.

The process to include children on the passport of an Iranian parent is to fill out a specific application form and submit it (along with the children’s shenasnames) whilst applying for the parent’s passport.[17]
Are the children and the applicant Iranian citizens?
[17] 1 ‘Application procedures for Iranian passports’, Embassy of the Islamic Republic of Iran, The Hague, February 2012, p. 4, CIS22556
In considering matters of proof in cancellation matters, the Tribunal notes that the basis for the exercise of the cancellation power in s.109 of the Act is finding the existence of factual material on which to cancel the visa. Thus the Tribunal must be positively satisfied that there was non-compliance in the way described in the s.107 notice.
Essentially the delegate’s decision to cancel is based on the nationality of the applicant’s children as evidenced by the applicant’s wife’s Iranian passport. The inference drawn from that evidence is that if the applicant’s children are Iranian citizens then it must follow that the applicant is a citizen of Iran and not a stateless Faili Kurd as claimed. The delegate also considered that the vaccination cards and birth records were further evidence of Iranian citizenship.
The Tribunal has considered the evidence of the children’s inclusion in the passport and accepts that, on the face of it, and taking into account the country information set out above, that the children appear to be citizens of Iran. If the children are Iranian citizens, then the Tribunal could reasonably find, based on the country information on nationality, that the applicant is also an Iranian citizen. The wife’s evidence was somewhat vague in her description of the arrangements made to organise the children’s inclusion on her passport. However, the Tribunal notes that the applicant and the applicant’s wife have consistently stated that she is an Iranian citizen, entitled to an Iranian passport and the inclusion of the children was made possible through bribery of a government official in 2010.
The country information indicates that bribery and falsification of documents in Iran is relatively easy. An unspecified Western embassy in Tehran stated that ‘it is possible to buy legal documents in Iran and obtain genuine documents in a fraudulent manner’. Consular officers at the U.S. embassy in Ankara have stated that ‘documents are easy to get in Iran through bribery and connections’, including civil documents.[18]
[18] Danish Immigration Service, Landinfo and Danish Refugee Council 2013, On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures: Joint report from the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London, United Kingdom 9 November to 20 November 2012 and 8 January to 9 January 2013, February, p.68 <
Other information which might support a finding that the children are Iranian citizens is the evidence of the applicant and the applicant’s wife, which the Tribunal accepts, that the applicant’s wife and children departed Iran on the wife’s passport through the international airport in Iran without restriction. Country information indicates that it would be highly unlikely for an Iranian citizen to be able to depart Iran on false documents through the international airport in Tehran.
The applicant’s wife gave evidence that she left Iran using the services of a people smuggler organised by her father in law. She seemed somewhat evasive when giving evidence about the circumstances of her departure. She was not able to provide much detail and stated that she met a pre-arranged contact at the airport who was able to organise her passage through the various checkpoints.
Whilst it may be relatively easy to obtain falsified documents in Iran, the country information also indicates that it would be highly unlikely for a person to be able to depart Iran on false passport or using other false documents.
However, the Tribunal has also considered the country information in a April 2016 DFAT report[19] which notes:
DFAT assesses that it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. DFAT agrees with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visa. Additionally, many Iranians travel to Turkey where there is no visa requirement for Iranians and from there travel onwards using forged documents. Forged visas or visas obtained through false information are common but exit from the Imam Khomeini International Airport with a forged passport would be difficult, although not impossible if bribery were involved.
[19] ‘DFAT Country Information Report—Iran’, DFAT, 21 April 2016, p. 30, CIS38A8012677
In April 2009, the Danish Refugee Council and Danish Immigration Service[20] reported:
A western embassy stated that Iranians abroad might be misinforming foreign authorities by saying that they have left Iran illegally through an airport, as this is very difficult due to thorough security checks. However, it was elaborated that it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally. This, though, will include bribing of a lot of airport staff members since there are several check points in the airport.
[20] ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008’, Danish Refugee Council and Danish Immigration Service, April 2009, pp. 37, CIS17329;
This advice is replicated in different reports over a substantial period of time.[21]
[21] ‘IRN104624.E - Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini International airport; whether authorities alert border officials of individuals they are looking for; incidence of bribery of Iranian border officials to facilitate departure; the punishment for border officers caught taking such bribes (2009-October 2013)’, Immigration and Refugee Board of Canada, 21 October 2013, CIS27380; ‘Iran: CI150312143209738 – Fraudulent Passports – Returnees from Turkey’, COISS, 31 March 2015, CRE6D9079100
Whilst the Tribunal considers it unlikely that the applicant’s wife and children left Iran on the wife’s Iranian passport with the children’s details included, the Tribunal considers it is not impossible. The country information suggests that departure through the international airport using bribery is rare, but the Tribunal notes that there is no other evidence which contradicts the applicant’s claims that they arranged their departure through bribery using the wife’s passport.
The other possibility is that the wife and children left on other false non-Iranian passports arranged by the people smugglers, but this is just speculation on the part of the Tribunal and there is no evidence to support such a proposition.
Despite evidence suggesting that the applicant’s children are Iranian citizens, the Tribunal has considered the following matters which would support the applicant’s assertion that he is a stateless person and that he did not provide incorrect information in his protection visa application:
·     The applicant has consistently claimed that he is a stateless person of Faili Kurdish ethnicity. The applicant’s wife also stated that her husband was stateless when interviewed by a Departmental officer in 2010.
·     The applicant and his wife have consistently stated that the applicant’s wife is an Iranian citizen and that she held an Iranian passport and shenasname. The Department has a copy of the biodata pages of her passport. At the hearing the wife claimed she was born in Iraq and came to Iran as a very young child but her passport states she was born in [a location], on the Iran/Iraq border. However, it may be that when her shenasname was issued the birth records were altered or she has been misled about her actual birthplace. In any event, her birthplace has no impact on her husband’s nationality.
·     There is no evidence before the Tribunal that the applicant has acquired an Iranian passport or that he is the holder of an Iranian shenasname. There is no evidence he held any Iranian documents such as a national identity card, driver’s licence or other documents only available to Iranian citizens.
·     There is no evidence that the children have their own shenasname documents.
·     During the interview with the Department in connection with her humanitarian application the applicant’s wife provided a number of documents. These included a handwritten marriage contract, birth records for the children, vaccination and health cards.
·     The applicant submitted that the couple could not obtain marriage registration due to his stateless status. The marriage contract appears to be a document written by a local iman in [Village 1], Iran to provide evidence that the couple were married according to custom and religion. No marriage registration was provided and the Tribunal finds this consistent with the applicant’s claim to being stateless. As the applicant points out, he would not have taken steps to obtain an unofficial record of the marriage if he had been entitled to marriage registration.
·     There is some country information which suggests a registered Faili Kurd may obtain marriage registration. According to the applicant’s evidence, in 1999 he would have still been the holder of a green registration card which was later taken away from him. However, it may be that the applicant was not aware of the possibility that his marriage could be registered at that time.
·     The country information indicates that birth records are provided by the hospital for children born in Iran. However, these documents are not evidence that a child is an Iranian citizen; only that their birth has taken place in Iran. As set out in the country information above, the birth record, together with other documents, need to be presented to the Iranian authorities to apply for a shenasname which is evidence of Iranian citizenship.
·     The applicant, his wife and daughter gave evidence that [the daughter] had not attended school in Iran. The documents before the Tribunal suggest that the applicant’s daughter was educated at home by her mother in Iran. The evidence before the Tribunal indicates that public schooling is not available to unregistered Faili Kurds. The documents provided by [her Australian] School refer to [the daughter] arriving in Australia with no prior schooling and the fact she has made exceptional progress since her attendance at school in Australia. This is consistent with the applicant’s evidence that his daughter was not an Iranian citizen and that he was not registered when she was of school age. This is consistent with his claim that he was stateless.
The Tribunal considers that the applicant and applicant’s wife have been evasive and not entirely truthful in some aspects of their evidence. It is not clear to the Tribunal how the inclusion of the children on the wife’s passport was arranged and the evidence relating to the wife and children’s departure from Iran was limited and unsatisfactory.
The Tribunal also accepts that it may be possible that the applicant is an Iranian citizen and has not provided a full account of his circumstances. It is also possible that the applicant was a registered refugee prior to his departure from Iran. The country information indicates that most Faili Kurds in Iran are registered refugees.[22]
[22] DFAT 2011 Status of Faili Kurds refugees and documentation issued to them in Iran 19 October 2011 CX274742
However, the Tribunal is mindful that cancellation must be approached with an appreciation of the gravity of the consequences for the applicant. The onus of establishing the factual basis for cancellation is on the Tribunal. In weighing the evidence before it as set out above, it considers the matters which support the applicant’s assertions outweigh other evidence suggesting that the applicant is an Iranian citizen. The Tribunal is not satisfied that the children [named] are Iranian citizens. It is also not satisfied that the applicant is, or was, an Iranian citizen.
Thus, the Tribunal finds that it is not satisfied that the applicant provided incorrect information in his application for a protection visa, taking into account all the evidence before the Tribunal and noting that the Tribunal must be positively satisfied that there is non-compliance in the way described in the s.107 notice.

100. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
101. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Louise Nicholls
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)     was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)     informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)     visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)     having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

February 2012, p. 4, CIS22556; ‘Provisions on Child Abduction in Non-Hague Countries’, Law Library
of Congress (United States), May 2015, p. 16, CISEC96CF14731; ‘Human Rights Situation for
Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting,
etc.’, Danish Immigration Service, April 2009, p. 27, CIS17329; Provisions on Child Abduction in Non-Hague Countries’, Law Library of Congress (United States),

May 2015, p. 16, CISEC96CF14731

30, CIS38A8012677; ‘Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009
Election Protestors as well as Legal Issues and Exit Procedures’, , Landinfo and Danish Immigration

Service, February, 2013, CIS25114

[2018] AATA 1004

7 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice