1709735 (Refugee)

1709735 (Refugee) [2018] AATA 5172 (29 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709735
COUNTRY OF REFERENCE:                  Stateless
MEMBER:Louise Nicholls
DATE:29 October 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 29 October 2018 at 12:54pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Stateless – incorrect information – citizenship – returned to Iran and Iraq on titre de voyage documents – claims fear of harm in both countries – held Iranian identity documents – no Iraqi citizenship – use of false passports – non –compliance – no serious breaches of the law – health issues – hardship – no family support in Iran – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 424A, 438
Migration Regulations 1994 (Cth) r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 for review is [age] years of age. She arrived in Australia [in] June 2012 as the holder of a [Temporary Visa 1]. She was granted a protection visa on 22 March 2013 on the basis of her claim that she was a stateless person residing in Iran before her departure and faced serious harm in Iran and Iraq.
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in connection with her protection visa application made on 27 August 2012. The applicant sought review of that decision on 5 May 2017.
The applicant appeared before the Tribunal on 26 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s grandson. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.
The applicant gave evidence about her background, her application for protection, her subsequent travels overseas and her current circumstances. She also gave evidence in relation to the grounds for cancellation and matters relevant to the possible exercise of discretion.
The applicant advised the Tribunal that she had hearing problems and the Tribunal arranged to have amplified headphones available to the applicant to enable her to hear the interpreter. The Tribunal took careful note of the applicant’s ability to hear the questions and is satisfied that the applicant understood the questions being put to her and was able to meaningfully participate in the hearing. However, the quality of applicant’s evidence was limited; in parts she was clear and articulate and in other parts she appeared either confused or evasive. She was certainly able to assert those matters she felt were to her advantage but was not responsive to questions, the answers to which, might have been to her detriment.
The applicant was represented in relation to the review by her registered migration agent.
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. It also has the oral evidence of the applicant and her witness, her representative’s submissions and documents provided to the Tribunal.
The Departmental files contain some documents which are relevant to the consideration of cancellation, including:
Department’s cancellation file [DIBP file number 1]
·Notice of Intention to Consider Cancellation (NOICC) of the applicant’s class XA Subclass 866 protection visa pursuant to s.109 of the Act dated10 February 2017.
·Submissions in response to the NOICC dated 3 March 2017.
·Delegate’s cancellation decision made on 11 April 2017.
·International Treaties Obligations clearance letter dated 27 March 2017.
·Photocopy of the applicant’s Australian titre de voyage issued [in] 2016.
·Photocopy of the applicant’s Iraqi “S Series” passport issued on [date] 2005. The cancellation file contained a scanned copy of the Iraqi passport ([passport number deleted]) in the name of [Applicant’s Alias 1] which was issued on [date] 2005 and expired on [date] 2006. This passport contains a stamp from the Iraqi authorities indicating that it was extended on [date] 2006 until [date] 2008. This passport also contains an Iranian visa for a 30 day entry which was issued [in] March 2007 and was valid until [June] 2007. The passport also contains stamps that indicate that the visa holder departed Iraq [in] April 2007 and returned [in] June 2007 and that her visa was extended in Iran.
·Photocopy of the applicant’s Iranian passport issued on [date] 2009.
·Photocopies of: a psychological report prepared by [Mr A] dated [February] 2013; a photocopy of a letter from the applicant’s general practitioner [Dr B] dated [February] 2013; a discharge document from [a] Hospital dated [March] 2013; and a letter from the applicant’s general practitioner [dated] [March] 2013.
·DIBD Inspectors Report [Australian city 1] Airport dated [February] 2017 and photocopy of the applicant’s titre de voyage with visa and entry and exit stamps.
·Photocopy of the applicant’s protection visa application made on 27 August 2012 and the statement setting out her claims.
·Photocopy of the applicant’s Protection (Class XA) Visa Decision Record made on 22 March 2013.
·Various passenger cards completed by the applicant during in and outbound flights from Australia.
·Traveller itinerary for the applicant.
·Identity Assessment Report.
Protection visa file for the applicant [DIBP file number 2]
·Photocopy of applicant’s Iranian passport issued on [date] 2009.
·Psychological Report on the applicant prepared by [Mr A] [in] February 2013 and general practitioner’s letter of [February] 2013.
·The applicant’s protection visa application made on 27 August 2012 and statement setting out her claims.
Application for [Temporary Visa 1] and associated documents [DIBP file number 3]
·Application for [Temporary Visa 1] made by the applicant on 21 May 2012.
·Translated Iranian shenasnamehs for the applicant and her daughter [Ms C].
Application for sponsored visit visa and associated documents [DIPB file number 4]
·Application for sponsored visit visa made by the applicant on 18 February 2008.
·Photocopy of the applicant’s Iranian passport’s biodata page (issued [date] 2006).
·Translation of the applicant’s daughter’s Iranian shenasnameh.
·Australian identity documents relating to the applicant’s daughter.
Certificate restricting disclosure of Departmental documents
The Tribunal notes that it has the Department’s cancellation [DIBP file number 1] which contains a certificate issued pursuant to s.438 of the Act restricts the disclosure of certain documents in the file. The documents affected were contained in folios 16 to 21, 46 to 47, 50 and 53.
The documents in 16 to 21, 50 and 53 were restricted on the basis that they contained documents or information relating to investigations by the Department, disclosure of which may reveal investigation methodology and may affect future capacity to obtain information using these methods.
Folios 46 to 47 were restricted because they contained information about investigations by the Department, disclosure of which may reveal investigation methodology and may affect future capacity to obtain information and these folios contained information about third parties, disclosure of which would be a breach of privacy.
The documents affected by the certificate are:
·ff. 16-21 – An identity assessment report prepared by the Department dated 28 September 2016.
·ff. 46-47 – Email correspondence regarding the issue of NOICC’s to the applicant and a number of unrelated individuals.
·f. 50 and 53 – Two copies of a DIBD Inspector’s Report at [Australian city 1] Airport dated [February] 2017.
The Tribunal discussed the existence of the non-disclosure certificates referred to above with the applicant at hearing. It outlined the nature of the restricted information and disclosed the conclusions drawn from the identity assessment document.
The Tribunal sought submissions from the applicant as to the validity of the certificates and no submissions were made. The Tribunal advised the applicant that following the hearing it would invite the applicant to comment on or respond to the information in the restricted material which might be relevant to the application.
Background
The applicant is a [age] year old widow who claims she was born in Najaf, Iraq. The applicant claims that she is from a Shia family and she married when she was 16 years of age in Iraq. She claimed that she and her husband were mistreated before they were expelled from Iraq to Iran by Saddam Hussein’s regime in about 1988.
The evidence is that the applicant’s husband died in Iran leaving the applicant a widow. It is not clear when the applicant’s husband died. The evidence of the time of death has not been consistent; the date of death has been variously stated to have taken place from 1998 in her oral evidence to 2006 in her application for protection.
At the Tribunal hearing the applicant stated that she and her husband had [several] children; she has [several] daughters and one son living in Najaf, Iraq and one daughter living in Australia. It is not clear how many of her children were born in Iraq and how many were born in Iran. The applicant’s [daughters] currently living in Najaf are Iraqi citizens. She claimed that they gained their Iraqi nationality through marriage to their Iraqi citizen husbands.
She stated that her son goes back and forth to Iran and his wife is Iranian; she claimed she did not know whether her son was an Iraqi citizen. She claimed she did not know much about him. He lives in Iraq but he goes back and forth. She claimed his wife and children live in Qom but they were not good with her so she did not know. The Tribunal put it to her that she was being very evasive about her son’s nationality and place of residence. She did not respond.
She entered Australia travelling on a [Temporary Visa 1] granted in Tehran in May 2012. She arrived in Australia [in] June 2012. She has remained living in Australia since her arrival other than for four visits to Iraq. In Australia she lives with her daughter, son-in-law and grandchildren. She is in receipt of Centrelink payment for her financial support.
She claimed she has several serious health [problems] She attended the Tribunal hearing in a wheelchair and required hearing assistance through the hearing.
CONSIDERATION
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.
What are the issues before the Tribunal?
The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
The Tribunal must consider 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.
Has the delegate reached the requisite state of mind to give the applicant the s.107 notice?
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?
What were the particulars of non-compliance set out in the notice?
On 10 February 2017 the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with s.101(b) of the Act.
The delegate set out answers given to questions in the applicant’s subclass 866 protection visa application made on 27 August 2012. In the application the applicant provided the following answers to questions in the form 866:
·Question 20 states “Your citizenship at birth” and the visa holder responded “Iraqi”
·Question 21 states “Your current citizenship” and the visa holder responded “Stateless”.
·Question 22 asks “Do you hold any other citizenship or are you a national of any other country?” and the visa holder responded “No”.
·Question 23 asks “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” and the visa holder responded “No”.
·Question 42 states “I am seeking protection in Australia so that I do not have to go back to” and the visa holder responded “Iraq and Iran”.
·Question 43 asks “Why did you leave that country?” and the visa holder responded “She is stateless”.
·Question 44 asks “Have you experienced harm in that country?” and the visa holder responded “See the report please”.
·Question 45 asks “What do you fear may happen to you if you go back to that country” and the visa holder responded “See the report please”.
·Question 46 asks “Who do you think may/mistreat you if you go back?” the visa holder did not respond.
·Question 47 asks “Why do you think this will happen to you if you go back?” and the visa holder responded “See the report please”.
·Question 48 asks “Do you think the authorities of that country can and will protect you if you go back?” and the visa holder responded “See the report please”.
The applicant provided a statement outlining her claims and her statement has been extracted in the s.107 notice. Based on her answers to the questions and on the claims set out in her statement and discussed with the delegate she was granted a class XA subclass 866 protection visa [in] March 2013.
Following the grant of her protection visa the applicant departed Australia [in] September 2013 and returned [in] March 2014. Her outgoing and incoming passenger cards showed she had intended to travel to Iraq, and had in fact travelled to Iraq for six months.
[In] July 2014 the applicant departed Australia and declared on her passenger card she would be away for five months and she would spend most of her time in Iran. The applicant arrived back in Australia [in] December 2014.
[In] September 2015 the applicant departed Australia and declared on her outgoing passenger card she would be overseas for five months and spending most of her time in Iraq. The applicant arrived back in Australia [in] February 2016.
On arrival in [Australian city 2] she was spoken to by an officer of the Department and showed her Australian titre de voyage which contains stamps indicating she had entered Iraq [in] September 2015 and departed [in] February 2016. The applicant also provided an Iraqi passport issued under the name [Applicant’s Alias 1] issued on [date] 2005 with an expiry date of [date] 2006. The passport had been extended until [date] 2008.
The delegate noted that the name on the passport is different to the name the applicant has notified the Department but that available information indicated that the applicant’s name is the Persian version of the Arabic name [Alias 1]. The applicant has also previously provided a copy of her father’s identity card which indicates that his family name was [name deleted].
[In] November 2016 the applicant departed Australia and declared on her outgoing passenger card she would be travelling to Iraq for a period of two months and 20 days. She stated that her nationality was Iranian. She arrived back in Australia [in] February 2017 and was spoken to by an officer from the Department. The applicant provided the officer with her Australian titre de voyage which contained an entry stamp indicating the applicant had entered Iraq [in] November 2016 at [an] International Airport and a departure stamp indicating she exited Iraq at the same airport [in] February 2017. This document also contained a visa for Iraq which declared the applicant to be an Iranian citizen.
The delegate’s notice put it to the applicant that she had provided incorrect information with her application for a class XA subclass 866 protection visa. She had claimed that she was stateless and did not have the legal right to reside in either Iran or Iraq. She had claimed that both countries discriminated against her and were unable to provide protection.
The delegate noted that following the grant of a protection visa the applicant had been found to be in possession of an Iraqi passport issued in 2005. This appears to contradict the applicant’s claim that her Iraqi citizenship was cancelled when she was expelled from Iraq in 1988 and she was not able to resume her citizenship. The delegate noted that the applicant did not declare that she was in possession of an Iraqi passport when she applied for her protection visa. It appears that the applicant is not stateless and is in fact an Iraqi citizen.
The delegate also noted that the applicant had provided evidence of an Iranian passport with her application for a protection visa and the passport contained a number of entry and exit stamps indicating that the applicant had used this document to enter and exit Iran, Iraq and [another country].
The delegate noted that the applicant had claimed that her husband had formed relationships with Iranian officials in order to obtain these passports even though the applicant claims to be stateless. The delegate cited country information on Iran which indicated that it is highly unlikely that the applicant would be able to travel in and out of Iran’s airports on multiple occasions without hindrance given the highly sophisticated measures in place unless she had held a genuine Iranian passport. The delegate considered that the Iranian passport was evidence of the applicant’s Iranian citizenship and the document appears to be legitimately obtained and a genuine document. The delegate considered that this was further evidence that the applicant was not stateless person as claimed in her protection visa application.
The delegate noted that the applicant’s protection visa was granted on the basis that the applicant feared harm from authorities of Iran and Iraq as a stateless person and because of this she could not return to either Iran or Iraq. The delegate indicated these claims were fundamental to the determination that the applicant was a person to whom Australia has protection obligations. The incorrect information provided was material to this determination and it now appears that the applicant is an Iraqi citizen and an Iranian citizen and was so at the time of her protection visa application and not stateless as claimed.

Further, the delegate noted the applicant has spent over 550 days in Iraq and possibly Iran without apparent harm suggesting she is not at risk of persecution.
The delegate considered that the applicant had not complied with s.101(b) of the Act because she provided incorrect information in her application for a protection visa. The delegate considered she had provided incorrect information in response to questions 21, 22, 43, 45, 47 and 48. Specifically:
·At question 21 the visa holder claimed that she is stateless. The correct information would be that she has citizenship of Iraq and Iran.
·At question 22 the visa holder has claimed that she does not hold citizenship of any country. The correct information is that the visa holder holds citizenship of Iraq and Iran.
·At question 43 the visa holder claimed that she left her country because she is stateless. The correct information is that the visa holder is a citizen of Iran and Iraq.
·At question 45 the visa holder claimed that she would face harm from the authorities and different groups. The correct information is that the visa holder would not face harm as evidenced by her return to these countries without apparent incident.
·At question 47 the visa holder claimed that she feared she would be harmed as she is stateless. The correct information is that the visa holder is not stateless and that she is not at risk of harm from the authorities.
·At question 48 the visa holder claimed that the authorities would not protect her as she is stateless. The correct answer is that the visa holder has citizenship of Iraq and Iran.
What was the applicant’s response to the notice? (s.109(1)(b)
The applicant responded to the notice on 7 March 2017. This response included the following information:
·That she had not provided incorrect information to the Department in association with her protection visa application.
·That following the grant of her protection visa, she has only travelled to Iraq and not Iran. The visa holder states that someone else completed her passenger card for her and accidentally wrote Iran instead of Iraq on one occasion.
·That she travelled to Iraq from Iran in 2007 after obtaining a visa from the Iranian authorities and this is evidence that she does not hold Iranian citizenship.
·That she has travelled to Iraq from Australia with her titre de voyage and an Iraqi visa.
·That she claimed protection from Iraq due to her problems with Saddam Hussein and that she did not have any Iraqi documents that allowed her to reside there.
·That her travels to Iraq were to visit her family members and to visit holy places in Najaf.
·That following the grant of her protection visa she was advised not to travel to Iran, but she could travel to Iraq.
She also stated that the Iraqi passport is a non-genuine document which she obtained by paying someone to make it for her. The applicant states that a number of features help demonstrate that it is a non-genuine document such as:
·The cover and material of the document.
·The fact that the document was only issued for one year which is not standard procedure for Iraqi passports.
·That the passport was obtained many years prior to her travel to Australia.
·That she has always obtained a visa to enter Iraq and that her nationality has been declared on the visa as Iranian.
Her representative also stated that the Iranian passport was obtained in a non-official and illegal manner and that she does not possess any Iranian identity documents. She has since lost this document. The applicant states that the passport was obtained by her husband who paid for it to be issued and that she cannot obtain a further passport as her husband is deceased and she does not have any other Iranian documents.
Delegate’s decision
On 11 April 2017 that delegate decided to cancel the applicant’s protection visa taking into account the information before her, as well as the applicant’s response to the NOICC. The delegate considered that the applicant had provided incorrect information for her visa on the basis that:
·She claimed she was stateless when the correct information was that she is a citizen of Iraq and Iran.
·She stated that she did not hold citizenship of any country when the correct information was that she held citizenship of Iraq and Iran.
·That she was not stateless as claimed.
·That she would not face harm from authorities in Iraq and Iran as evidenced by her return to Iraq and Iran without incident.
·That she would be harmed as she is stateless when the correct information is that she was not stateless and not at risk of harm from the authorities.
·She also stated that the authorities would not protect her as she is stateless when the correct information is that she had citizenship of Iraq and Iran.
Evidence before the Tribunal
The applicant sought review of the cancellation decision on 5 May 2017. The applicant provided a copy of the delegate’s cancellation decision together with her application for review.
The applicant also provided;
·Submissions made by the applicant’s representative dated 23 October 2017.
·A copy of a psychological report prepared by [Mr A], registered psychologist, dated [October] 2017.
·A medical report from the applicant’s general practitioner [Dr B] dated 21 October 2017.
·A psychiatric report prepared by [a] consultant psychiatrist, dated [October] 2017.
The applicant gave evidence at the Tribunal hearing regarding her background and stated that she was a Shia Muslim of Arabic ethnicity.
She was born in Iraq and when she was much younger she and other members of her family were imprisoned by the government of Saddam Hussein. She was released from prison but suffered [an injury] as a result of her time in prison.
She and her husband were forced to leave Iraq and they went to Iran. She did not have a passport or evidence of Iraqi citizenship. The Tribunal put it to her that in earlier evidence she had stated that her father was born in Iraq and she stated that she did not know where her father was born.
She claimed that after she left Iraq she stayed in Iran for 30 years and that her children were born in Iran. Her husband died 20 years ago and when he was alive he sold [goods] in Ahvaz (aka Ahwaz), Iran.
The Tribunal tried to take the applicant to her history as set out in statements and submissions; however she appeared to be somewhat confused and told the Tribunal that someone in Iran robbed her of all her jewellery and her daughter had to come and take her back to Australia.
The Tribunal asked her about her Iranian passport and she stated that her husband obtained the passports for the couple but her children did not get Iranian passports. She claimed she lost her Iranian passport in Australia. With respect to her overseas visits she stated she had only gone back to Iraq and had not returned to Iran.
The Tribunal asked her further about her Iranian passport. She claimed she does not have Iranian citizenship only a passport. The Tribunal put it to her that the Iranian passport indicates that she has Iranian citizenship but she disagreed. The Tribunal put it to her that the country information regarding Iran indicated that Iran has a sophisticated system of passport checking at their international airports and they also check the passport against their other records. It put it to her that she would not have been able to travel in and out of Iran as frequently as she did if her passport had not been genuine. She stated her husband gave money to get the passports. The Tribunal put it to her that it was extremely difficult to leave on a false passport and almost impossible to leave and return a number of times. She claimed she used the passport only once but the Tribunal put it to her that the stamps in the passport showed she had used it a number of times and had also gone to [another country] and Iraq. She appeared confused at this stage between her Iraqi and her Iranian passports.
The Tribunal clarified that it was asking her about her Iranian passport which had a number of exit and entry stamps. Country information indicated that it was almost impossible to leave and return on a false passport. When the applicant was shown the copies of her Iranian passport she stated it was a long time ago and that after she came to Australia she has not returned to Iran.
She claimed that she cannot return to Iran because she is scared to go back. She explained that she had been robbed and the person who robbed her has been sent to jail and his family are hostile to her.
She claimed she did not know how her husband obtained the passports. The Tribunal put it to her that she appeared to be avoiding answering questions about the Iranian passport and she stated she had many health issues.
The Tribunal also discussed the 2005 Iraqi passport found in her possession. She claimed that was not a good passport and was not a genuine document. She also noted that it had expired in 2006. When she was in Iran they sent this passport to her. She has kept it because she did not know what to do with it but she has never used it to travel to Iraq. She kept this passport in her handbag because she did not know what to do. In this passport the Tribunal noted that it had listed her nationality as Iranian.
The Tribunal put it to her that she had claimed she was a stateless person. The delegate stated that she gave incorrect information because she is, in fact, a citizen of Iran and Iraq. The applicant stated that her husband obtained Iranian citizenship, although she does not know how he obtained citizenship.
The applicant also stated she was not willing to return to Iran or Iraq due to the harm she would be subjected to and because the authorities cannot protect her.
The Tribunal noted she had returned to Iraq four times for lengthy periods despite saying she feared harm in Iraq. The statement she made that she feared harm in Iraq is not correct. She stated that when she goes to Iraq she has to pay $100 to renew her visa each month.
The Tribunal put it to her that she claimed that she feared returning to Iraq and needed Australia’s protection but she has, in fact, returned to Iraq. She stated that she was not prohibited from entering Iraq to see her children. She claimed she had nothing to fear in Iraq, only in Iran. She claimed that the family of the person who robbed her in Qom are hostile to her and she fears returning to Iran. She does not fear returning to Iraq but does not have documents which would allow her to remain in Iraq.
Section 424A invitation to comment/respond
On 15 May 2018 the Tribunal invited the applicant to comment on or respond to information which would be the reason or part of the reason for affirming the decision under review. The substance of that invitation is set out below:
IDENTITY ASSESSMENT REPORT
On 28 September 2016 a Departmental officer prepared an Identity Assessment Report. That report noted
Iranian passport
You entered Australia on an Iranian passport [number deleted] issued on [date] 2009.
The passport showed that you departed and entered Iran on several occasions prior to your arrival in Australia in 2012.
Iraqi passport
On 13 February 2016 you were found to be in possession of an Iraqi passport (S Series) in the name of [Applicant’s Alias 1] issued on [date] 2005 with an expiry date of [2006]. The passport was extended to [2008] and was used to enter and depart Iraq.
The Persian version of the Arabic name “[Alias 1]” is”[the applicant’s first name]”. Your father was named [first name deleted] and your grandfather was [grandfather’s name deleted]. This is the surname you used on the Iraqi passport. The Iraqi passport was held in your Arabic name. A departmental officer located an Iraqi identity card in the name of your father [and] his father’s [name].
Iraqi visas
You travelled in and out of Iraq numerous times on your Iranian passport. On one of the Iraqi visit visas issued on your Iranian passport ([June] 2011 to [September] 2011) your name is spelled [differently] a phonetic transliteration of the name “[Alias 1]”. The visa also revealed that the visa was issued by the Iraqi embassy on the basis that you were known to be an Iraqi national with an Iraqi passport.
Visits to Iran and Iraq
You arrived in Australia on a [temporary] visa [in] June 2012.
You were granted a protection visa on 22 March 2013.
[In] September 2013 you departed Australia and lived in Iraq for 6 months travelling on your Australian travel document (titre de voyage).
[In] July 2014 you departed Australia and lived in Najaf for 5 months travelling on your Australian travel document.
[In] September 2015 you departed Australia and lived in Iraq for 5 months travelling on your Australian travel document.
VISIT VISA APPLICATIONS
In your application for a [Temporary Visa 1] to visit Australia on 21 May 2012 you provided a copy of your Iranian “shenasnameh” document and title deeds to property in Iran to support your application. Your “shenasnameh” document noted that your foreign nationality shall be considered null and void pursuant to the provisions of Article 989 of the Civil Code of Iran. You also provided a copy of an Iranian passport issued on [date] 2009.
You also provided an Iranian “shenasnameh” document for your daughter [Ms C].
In your application for a sponsored family visit visa made on 18 February 2008 you provided an earlier Iranian passport [which] was issued on [date] 2006 with an expiry of [date] 2011.
The information set out above is relevant because
The information indicates that you have held two Iranian passports, have travelled from Iran to Iraq many times on your Iranian passport and that you hold an Iranian “shenasmaneh” in your name. Country information indicates that shenasmanehs are only issued to Iranian citizens.
Country information indicates that it would be rare for an individual to be able to depart or enter Iran using a false Iranian passport considering the comprehensive checks of documents which take place at the international airport in Tehran.
Further the country information indicates that shenasnameh have sophisticated security features which make it difficult to falsify. In April 2016, DFAT reported:
Key Iranian identification documents (a birth booklet known as the shenasnameh and National Identity card) are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use. It might be possible to obtain a genuine identification document with the intention of impersonating another person, but sophisticated border control procedures would make it difficult to use in order to leave Iran.[1]
[1] DFAT Country Information Report Iran’, Department of Foreign Affairs and Trade, 21 April 2016, s.5.37, CIS38A8012677.
Further, the Iranian government maintains a database of personal details of all citizens, linked to their national identity number.[2] This database links 632 government services, according to an Iranian Government publication.[3]
[2] ‘National Organization for Civil Registration’, Personal Status Registration Organisation (Iran), n.d, pp. 35–47, CIS27449.
[3] ‘National Organization for Civil Registration’, Personal Status Registration Organisation (Iran), n.d, p. 44, CIS27449.
As you have departed and entered many times this indicates that your Iranian passport is a genuine document and you have Iranian nationality. The information set out above indicates that you held a shenasmaneh and obtained a genuine Iranian passport and thus must have been an Iranian national when you applied for a protection visa.
The information also indicates that you are also an Iraqi national. You had an Iraqi passport in your Arabic name in your possession when questioned at [Australian city 2] Airport [in] February 2016.
Country information indicates that individuals born to Iraqi fathers were entitled to obtain Iraqi citizenship if their parents were Iraqi nationals, even if they had been stripped of their nationality by Saddam Hussein’s government. You have [several] children who are Iraqi nationals living in Iraq. Together with the possession of an Iraqi passport, this indicates that you hold Iraqi citizenship.
If you were an Iranian and/or Iraqi national at the time you applied for protection in 2012 then the answers you gave in your application for protection were incorrect. In particular, with respect to Form 866C dated 27 August 2012:
·At question 21 you claimed that you were stateless, this is incorrect as you have citizenship of Iran and Iraq.
·At question 22 you claimed that you did not hold citizenship of any country. This is incorrect as you hold citizenship of Iran and Iraq.
·At question 43 you claim that you left your country because you were stateless, this is incorrect because you are a citizen of Iran and Iraq.
·At question 45 you referred to your accompanying statement in which you claimed that you would face harm from the authorities and different groups if you returned and this is correct as you have since returned to Iran for significant periods of time.
·At question 47 you referred to your accompanying statement in which you claimed that you feared you would be harmed as you was stateless. This is incorrect as you are a citizen of Iran and Iraq and have returned to Iran for significant periods of time without apparent harm.
·At question 48 you referred to your accompanying statement in which you claimed that the authorities would not protect you and you were stateless. This is incorrect as you were and are a citizen of Iran and Iraq entitled to seek protection from those states.
If the answers were incorrect then there are grounds pursuant to s.109 of the Act for cancellation of your protection visa.
If the Tribunal finds there are grounds for cancellation of your protection visa then your frequent and lengthy visits to Iraq indicate that you do not have a genuine fear of persecution in Iraq and will not face a real chance of serious harm if you return to live in Iraq.”
On 21 June 2018 the applicant’s representative responded to the invitation to comment/respond as summarised below. The Tribunal notes that the response is not always clearly articulated (unedited):
The applicant claimed that when she entered Australia she held an Iranian passport; however this passport was obtained through unofficial ways when her husband was alive; she stated he paid money to obtain it. Since entering Australia she has never renewed her passport or used any Iranian passport to travel outside the country.
Although the passport was obtained unofficially it was a legal document that would not be easily recognised by Iranian officials. “Many searches or incidental notice” could lead to an officer recognising the passport and that it was obtained not by descent rather by paying ransom to government officers.
The applicant submitted she was lucky that she had avoided questioning when she travelled in and out of Iran on that passport and may not be lucky again as her own story and detainment in Iran prior to her escape to Australia would place her in the attention of officers who would then suspend her passport and detain her again.
She claims that in her passport and other Iranian documents her nationality has always been considered null proving that she is stateless and belongs to no other nationality. Being a citizen is not enough by a piece of document especially when this document could be cancelled and withdrawn as it was unofficially obtained.
The applicant holds claims of protection from Iran where she was granted a protection visa on 22 March 2013. These claims continue to exist and the applicant has not travelled to Iran since her arrival in Australia. When travelling she has obtained visas in her Australian travel documents.
With reference to holding claims of protection from Iraq she does not fear returned to Iraq due to “prosecution” but because she is stateless and does not have the right to permanently live in Iraq. She was displaced during the Saddam regime in the 1980’s and lived in Iran with her husband and children until the toppling of Saddam. She said she was mistreated in Iraq and stripped of her Iraqi nationality. When she first visited Iraq she tried to obtain a fake Iraqi passport in order to reinstate her Iraqi nationality. She tried on many occasions to apply and in some cases paid to reinstate her citizenship but failed. She confirms she was unable to use the fake Iraqi passport to travel. It was only obtained for that purpose and in the end it did not benefit her at all. She confirms that it is easily recognised as fake because of the material, layout and the issue and expiry dates.
Her children who live in Iraq are mainly girls who are able to obtain Iraqi identities because of marrying Iraqi citizens but being the wife of the deceased and stripped citizen it was impossible to obtain Iraqi identity documents.
Since entering Australia she has only visited Iraq and the only reason is because she does not fear prosecution in Iraq, rather she is not welcome to live permanently. She has always held an Iraqi visa on her travel document and these were obtained from the Iraqi consulate in [Australia]. She visits Iraq because she has a love of the holy places during the holy months and she also visits her children.
Being an elderly and frail woman she initially intended to travel for short periods to Iraq however she often felt ill and had to delay her return to Australia. Cancelling her visa will disadvantage her health and well-being as she suffers a number of illnesses and she would have to return to being stateless and in fear of prosecution and harm. She will not have any support or be able to live safely.
The representative submits that the Tribunal should take particular note of the age and history of the applicant and maintain she has been honest and truthful and complied with her protection visa conditions.
Is the applicant an Iranian citizen?

The applicant gave evidence, which the Tribunal accepts, that she is a Shia Muslim born in Iraq and expelled in the 1980s together with her husband. She claimed that her husband had been accused of being a traitor to Iraq and they were both accused of being supporters of the Iranian regime. The applicant claimed in writing that her father was an Iraqi national and that she would have been an Iraqi national if not for her expulsion.
The applicant gave evidence she and her husband entered Iran and they lived there for many years and some of their [children] were born in Iran.
The evidence of the applicant regarding her expulsion from Iraq is consistent with country information on Iraqi Shia Muslims expelled from Iraq in the late 1970s and 1980s.
In 2005 BBC News reported on the situation for Shias in Iraq:[4]
Shia Muslims were oppressed by Iraq's Baathist regime for more than 30 years and excluded from the highest ranks of power.
They make up the majority of Iraq's population - accounting for as much as 60% - and their support is seen as vital if any new Iraqi government is to have legitimacy.
….The Shia heartland is in the south-east of the country. It includes Basra and the sacred cities of Najaf and Karbala - home to shrines revered by millions of Shia across the East. In the late 1970s, thousands of Iraqi Shia were expelled to Iran under the pretext of their "Persian connections". (Tribunal emphasis)
[4] Who are the Iraqi Shias? 17 February 2005
The Ba’athist regime in Iraq stripped the citizenship from and expelled tens of thousands of Iraqi citizens before and during the Iran/Iraq war. Those expelled were mostly Shia Kurds, Arabs and Persians. Many of those expelled had ‘of Persian origin’ in their identity papers, a consequence of (mainly Shia) citizens telling Ottoman officials decades previously that they were Persian, not Ottoman, in order to avoid compulsory military service.[5]
[5] ‘Iran in Iraq: How much influence?’, International Crisis Group, Middle East Report Number 38, 21 March 2005, p. 4, CIS14345.
A 2005 International Crisis Group report reported:
At the beginning of the Iran-Iraq war, the Baath regime expelled large numbers of Iraqi Shiites it accused of being Iranians. The designation "Iranian" stemmed from a quirk in Iraq's Ottoman legacy. In Ottoman times, many citizens chose to register as Persians (Faresi) in Iraq in order to avoid extended army service, even if they had lived in Iraq for generations. When post- Ottoman Iraq adopted its citizenship law in the early 1920s, Iraqis inherited this designation of "national origin", which was marked in their identity cards (daftar jinsiyeh) as either "Taba'iyyeh Othmaniyeh" or "Taba'iyyeh Faresiyyeh". Fathers passed it on to their children, and only the payment of a bribe sometimes could change it. In the era of vocal Shiite opposition politics in the 1970s and the outbreak of the Iran-Iraq war in 1980, the Baath regime deemed these Iraqis a potential fifth column, confiscated their properties, removed their identification papers and shoved them unceremoniously across the border, penniless and with barely the clothes on their backs, "back to" Iran, where they were treated, not as returning citizens, but as refugees.[6]
[6] ‘Iran in Iraq: How much influence?’, International Crisis Group, Middle East Report Number 38, 21 March 2005, p. 4, CIS14345.
Since the 2003 US-led invasion of Iraq, those who were stripped of their citizenship have been allowed to return and reclaim Iraqi citizenship. Likewise, the children of Iraqi men stripped of their citizenship (even if the fathers have subsequently died) have been allowed to return and claim Iraqi citizenship.[7]
[7] ‘The Constitution of Iraq’, 13 January 2005, Articles 18 (2) and 18 (3a), CIS9BE2467714; ‘Iraqi Nationality Law (Iraq)’, 7 March 2006, Article 3(a), CIS18097 ‘Iraqi Nationality Law (Iraq)’, 7 March 2006, Article 18(1).
The applicant claimed, and the Tribunal accepts, that the applicant and her family lived in an Iranian refugee camp for a few years and then they moved into their own accommodation. At the Tribunal hearing the applicant stated that her late husband had sold [goods] in Ahvaz and that he ran that business there until he died 20 years ago (or in July 2006).
The applicant claimed that her [children] were born in Iran, however, some documents suggest that some children were born in Iraq before the applicant was expelled. [Several] of her daughters now live in Iraq and the applicant claims that they married Iraqi citizens and have Iraqi nationality through marriage. The applicant stated that her son lives in Iraq but moves back and forth between Qom in Iran and Najaf in Iraq. The applicant was evasive when asked about her son’s residence and nationality; she claimed his wife and children lived in Qom and that they are Iranian citizens. She also stated that they did not like her and consequently she did not know much about her son’s circumstances. The Tribunal does not accept the applicant’s evidence that she is not aware of the nationality of her son or his circumstances. She gave evidence that she saw him when she visited Najaf in 2014, 2015 and 2016 and had herself previously lived in Qom. The Tribunal considers it is not plausible that she would not be aware of his circumstances given their continuing contact. The Tribunal considers that the applicant has withheld this information from the Tribunal fearing that she might be disadvantaged by any admissions on her part.
While the applicant’s evidence was somewhat confused, the Tribunal accepts her evidence that she was living in Iran prior to her departure on a [Temporary Visa 1] to Australia in 2012. She stated that she was robbed of her jewellery when living in Qom and that the person who robbed her has subsequently been imprisoned for a lengthy period of time. As a consequence his family are angry with her and she had to leave Iran to escape retribution from his family. She stated she cannot return to Iran because she fears harm at the hands of this family. This claim was not articulated in any other statements and has been expressed in quite vague terms including the date of the incident, but the Tribunal accepts that, although the applicant’s evidence was unsatisfactory in many respects, that this incident took place and that she feels she cannot return to Iran for this reason. The applicant’s claim that she was robbed and feared the perpetrator’s family was also set out in one of the psychological reports provided by the applicant.
Overall, the Tribunal was not able to obtain satisfactory evidence regarding the applicant’s circumstances immediately before she departed Iran. It does, however, have sufficient evidence to make a finding on whether the applicant is an Iranian citizen and whether she was an Iranian citizen at the time of her application for protection.
Taking into account the available evidence, the Tribunal finds that the applicant travelled to Australia on an Iranian passport issued on [date] 2009 and she also held an earlier Iranian passport issued on [date] 2006. The applicant’s most recent Iranian passport contains several departure and entry stamps showing that the applicant travelled through the international airport in Tehran numerous times. The applicant claimed her husband had earlier obtained Iranian passports for the couple and she was not aware how he arranged those passports. If the applicant’s husband obtained the Iranian passports but died 20 years ago or in 2006, this indicates that the couple held another one or more Iranian passports before the most recent passport was issued in 2009. There was some suggestion in the documents that the original passport or passports were obtained through bribery; however, the applicant resiled from that claim at the Tribunal hearing. She eventually stated she did not know how her husband obtained the passports.
The latest DFAT report on Iran[8] notes in relation to passport issue that:
5.31 Iranian passports are burgundy, with the Iranian Coat of Arms emblazoned on the top of the front cover. Passports serve as proof of Iranian citizenship. All Iranian passports have been biometric since February 2011. Iranian passports include the following data: holder’s signature, country of residence, place of issue, name and position of issuing authority, passport type, country code, passport number, national ID number, holder’s name, father’s name, date and place of birth, sex, date of issue, and date of expiry. Applicants for passports are required to provide their original Iranian Birth Certificate (shenasnameh), photocopies of all of the pages of the Birth Certificate containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the past three months.
5.32 Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran. In February 2016, the International Business Times reported the arrest in Thailand of a passport forger who admitted to selling forged passports to people from Iran, Iraq and Syria. The majority of forged passports sold by the forger were allegedly used to travel to Europe.
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, 7 June 2018.
The Tribunal also finds that the applicant held an Iranian shenasnameh. The most recent DFAT Country Report on Iran[9] notes:
5.27 The shenasnameh itself is a small passport-style book issued to all Iranians. The first page is the inside of the cover page and includes the bearer’s fingerprint. The second page contains a photograph (for bearers over the age of 15), the names of the bearer’s parents, the date and place of birth, the location where the shenasnameh was issued, the name of the issuing officer and a serial number. The third page contains information on the bearer’s marriage(s), divorce(s) and children. The current style of shenasnameh was introduced in 2013 at around the same time as the National Identity Cards (see following section).
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran, 7 June 2018.
The applicant’s shenasnameh provided to the Department in the context of a [Temporary Visa 1] application was endorsed with a note that her foreign nationality shall be construed as null and void pursuant to Article 989 of the Civil Code of Iran.
The applicant’s representative’s submitted that this was evidence of the applicant’s statelessness. However, country information indicates that this endorsement is acknowledgment that the Iranian government considers Iranian citizens who hold another nationality as Iranian citizens only, subject to some qualifications set out in the Civil Code of Iran. Article 989 of the Civil Code provides that for any Iranian subject who acquired foreign nationality after the solar year 1280, that foreign nationality shall be considered null and void. The Tribunal finds that the endorsement on the applicant’s shenasnameh indicates that the Iranian government considered that the applicant had acquired another nationality (most likely as a result of her possession of an Iraqi passport) but according to Iranian law her dual nationality was not recognised by the Iranian government and she was regarded as an Iranian citizen only.
The Tribunal finds that that during the period of time the applicant and her husband lived in Iran they were able to obtain Iranian citizenship. Taking into account the available country information, the Tribunal finds that the applicant is an Iranian citizen and she was an Iranian citizen at the time she applied for a protection visa on 27 August 2012. She has held at least two Iranian passports, one issued in 2006 and the other in 2009; she has held an Iranian shenasnameh in her own name, and the applicant has travelled regularly using her Iranian passport to enter and depart Iran through the international airport in Iran. The country information indicates an Iranian passport is only issued to Iranian citizens. Several sources[10] indicate it is highly unlikely that a person would be able to leave or enter Iran through the international airport using anything other than a genuine passport. Given the regularity of her travel the Tribunal finds that the applicant did not travel on a false passport.
Is the applicant an Iraqi citizen?
[10] IRN104624.E-Iran: Iran 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 bribes (2009-October 2013) Immigration and Refugee Board of Canada, 21 October 2013.
The applicant has given evidence, which the Tribunal accepts, that she was born in Najaf, Iraq and that she and her husband were expelled from Iraq to Iran in the 1970s/1980s as the result of a campaign by the Iraqi government to expel Shia Muslims from Iraq.
The applicant claims that she lived in Iran before she arrived in Australia in 2012. When the Tribunal questioned the applicant about whether she had returned to Iraq after the fall of Saddam Hussein she was not responsive to the questions. The applicant was either not willing or able to give any detailed oral evidence about her efforts to obtain Iraqi citizenship after the fall of Saddam Hussein’s government. In her original application for protection she stated she had returned in 2011 and 2012. Her application also stated that her father was born in Iraqi and had been an Iraqi citizen.
After the Tribunal hearing the Tribunal invited the applicant to comment on, or respond to, information that she had been found with an Iraqi passport in her possession. It was put to her that she was the passport holder despite a difference in the spelling of her name. The passport was used to enter and depart Iraq.
The Tribunal also put it to the applicant that country information indicated that individuals born to Iraqi fathers were entitled to obtain Iraqi citizenship if their parents were Iraqi nationals, even if they had been stripped of their nationality by Saddam Hussein’s government. As she has [several] children with Iraqi nationality living in Iraq and had been an Iraqi passport holder, this also indicated that she also held Iraqi citizenship.
In response to the invitation to comment/respond to this proposition, the applicant claimed that she obtained a fake Iraqi passport to help her efforts to restore her Iraqi nationality. She claimed that she tried to restore her Iraqi nationality but was not successful. She stated that as the wife of a deceased citizen stripped of citizenship it was impossible to obtain Iraqi identity documents to support her application for Iraqi citizenship.
At the hearing she stated that if she had Iraqi nationality she would not have travelled to Iraq on her Australian travel document and paid for Iraqi visas which needed to be frequently renewed.
In her earlier submission to the Department, she stated that the passport found in her possession was an “S Series” passport which was false and in any event had expired. She claimed she does not have a current Iraqi passport.
For the reasons set out below, the Tribunal considers that the applicant is entitled to obtain Iraqi citizenship; however, practical difficulties relating to the provision of identity documents may have prevented her from having her citizenship restored.
With respect to the restoration of Iraqi citizenship, the latest DFAT report on Iraq notes, in relation to another group of Iraqis previously stripped of their citizenship:[11]
Legislation to return citizenship is now in place, although the process can be administratively complex if an individual lacks sufficient documentation to demonstrate Iraqi origin.
[11] Department of Foreign Affairs and Trade, DFAT Country Information Report Iraq; Faili Kurds 3.4-3.7, 9 October 2018.
Country information set out below indicates that this legislation also applies to all other Iraqis stripped of their citizenship before the fall of Saddam Hussein’s government.
According to the 2005 Iraqi Constitution:
Anyone who is born to an Iraqi father or to an Iraqi mother shall be considered an Iraqi. This shall be regulated by law.
An Iraqi citizen by birth may not have his citizenship withdrawn for any reason. Any person who had his citizenship withdrawn shall have the right to demand its reinstatement. This shall be regulated by a law.[12]
[12] ‘The Constitution of Iraq’, 13 January 2005, Articles 18(2) and 18(3a), CIS9BE2467714.
Likewise, according to the 2006 Iraqi Nationality Law:[13]
A person shall be considered Iraqi if he/she is born to an Iraqi father or an Iraqi mother.
and
Any Iraqi, who was denaturalized on political, religious, racist or sectarian grounds, shall have the right to restore his Iraqi nationality, subject to submission of an application to this effect. In the case of his death, his children, who have lost their Iraqi nationality consequent to his father's loss of nationality, shall have the right to submit an application to restore Iraqi nationality.
[13] ‘Iraqi Nationality Law (Iraq)’, 7 March 2006, Article 3(a), Article 18(1), p. 6.
Under the heading ‘Justifications’, the law makes clear, “This law is enacted to … enable an Iraqi who had been arbitrarily deprived of his nationality to duly restore it”.
The Tribunal also accepts that the applicant was found in possession of an Iraqi “S Series” passport which appears to bear her Arabic name, but that passport has now expired. The Tribunal considers that this may have been a legitimate passport but equally may have been obtained by fraud.
With respect to S Series passports, a Landinfo report published in January 2014[14] noted:
Iraqi passports (jawas) are designated with a capital letter indicating the period in which they were issued. Passports in the series M, N and H were issued during the Ba'th regime and retained their originally specified validity after Saddam Hussein was overthrown.
In July 2004, new foreign passports in the S-series were issued. The Iraqi passports in the S-series have dark green covers, measure 12.5 x 9 cm and have 36 pages.
In the second half of 2006, Iraqi authorities introduced G-passports. The G-passports are machine-readable and of far better quality than previous passports. They are also in accordance with international standards and are thus more difficult to forge. A further improved version, series A, was introduced on 01 October 2009.
[14]“Iraq Travel documents and other identity documents” Landinfo Report 16 December 2015
The report also noted that:
As a result of the upheavals in Iraq after 2003, it has, at times, been difficult to obtain the ID documentation required to be issued a passport. A high number of counterfeit ID documents have been in circulation since 2003.
Many people have used fake documents, which have been readily available on the open market both in and outside Iraq.

100. A BBC report on Iraq passports[15] in March 2007 noted:
….The first S series issued a year or so after the toppling of Saddam Hussein is rejected by most countries, because they can easily be faked.
[15] “Passport dilemmas beset Iraqis” 21 March 2007 news.bbc.co.uk/2/hi/middle_east/6474597.stm

101. The news report also outlined the difficulties faced in 2007 by Iraqis seeking to obtain identity documents including passports.
102. The applicant stated that the “S Series” passport issued in May 2005 was a false passport and is not, therefore, proof that she held Iraqi citizenship at the time she applied for a protection visa.

103. The Tribunal has not seen the original Iraqi passport and it has not been examined by a document examiner to identify whether it is a genuine passport. The Tribunal has only had access to a copy of the document. Given the country information that “S Series” passports could be easily falsified, that false documents were rife in the period after the fall of Saddam Hussein and taking account of the applicant’s written and oral evidence, the Tribunal cannot positively be satisfied that the Iraqi passport found in the applicant’s possession is a genuine and legitimate Iraqi passport or that it is evidence that the applicant holds Iraqi citizenship.
104. With respect to the applicant’s eligibility for Iraqi citizenship, the country information before the Tribunal indicates that the applicant is theoretically entitled to the restoration of her Iraqi citizenship. However, there is also information indicating the practicalities of restoring Iraqi citizenship to individuals who cannot show their Iraqi origins have made it difficult or impossible to obtain the Iraqi government’s recognition of an individual’s citizenship.[16]
105. Taking all of the above into account, the Tribunal is not positively satisfied that at the time the applicant made her application for a protection visa that she had obtained Iraqi citizenship or that it had been restored. It also is not satisfied that she held any genuine Iraqi identity documents which would indicate that she held Iraqi citizenship at that time.
Has the applicant provided incorrect information in connection with her application for a protection visa?
106. The issue for the Tribunal is whether the answers given to questions 21, 22, 43, 45, 47 and 48 were incorrect. Essentially, in answer to those questions, the applicant stated that she was stateless at the time she made her application.
107. Having considered the applicant’s response to the s.107 notice, both to the Department and in evidence given to the Tribunal, the Tribunal is positively satisfied that the applicant has provided incorrect answers to those questions. For reasons set out above it finds that the applicant was an Iranian citizen at the time she made her application for protection and that she was not stateless. She did not answer questions 21, 22, 43, 45, 47 and 48 correctly.
108. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.
[16] Bigio J and Scott J, 2009, Internal Displacement in Iraq: the process of working towards durable solutions, The Brookings Institution, June 2009.
Should the visa be cancelled?
109. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
110. The Tribunal has considered the applicant’s response to the s.107 notice and has had regard to the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations). It has also had regard to other matters of government policy. These matters are set out below.
The correct information
111. For reasons set out above the correct information is that the applicant was an Iranian citizen at the time of the application for protection and was not stateless as claimed.
The content of the genuine document (if any)
112. The prescribed circumstances are not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 relating to bogus documents.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
113. As referred to above, and as mentioned in the decision under review, the applicant’s claims for protection were partially based on her claimed lack of legal status in Iran or Iraq. However, the reasons given by the delegate for granting the visa were also partially based on her findings that the applicant faced a real chance of severe discrimination based on her Arab ethnicity, her widowed status, her age and gender and her lack of family protection in Iran.
114. The Tribunal considers that the decision to grant her a protection visa was only partially based on the incorrect information she gave to the Department, namely her claim that she was a stateless person.
The circumstances in which the non-compliance occurred
115. As set out above, the Tribunal accepts that the applicant was living in Iran before she arrived in Australia on a [Temporary Visa 1] in 2012. The address she gave on her application for a [Temporary Visa 1] was an address in Qom which is a city in Iran about 140 kilometres south of Tehran. This is also the city in which the applicant’s daughter-in-law and grandchildren live. At the hearing the applicant stated she had been robbed in Qom and she was afraid of the family of the perpetrator seeking retribution against her. The Tribunal accepts that the applicant was living in Qom with or near her son and his family.
116. Despite an earlier sponsored visit visa being refused in 2008, the applicant was granted a [Temporary Visa 1] on 27 May 2012. The applicant provided a copy of her 2009 Iranian passport and a copy of her shenasnameh with that application. She provided a copy of her 2006 Iranian passport with her earlier 2008 application for a sponsored visit visa.
117. After the applicant arrived in Australia she applied for a protection visa on 27 August 2012. She provided the delegate with a copy of her 2009 Iranian passport which included several exit and entry stamps and Iraqi visa endorsements.
118. In granting the applicant a protection visa the delegate found that the applicant was a stateless person. The delegate accepted the evidence that the applicant’s now “defunct” husband had obtained her Iranian passport fraudulently and thus the applicant was stateless. This was despite the evidence that the applicant had held two Iranian passports, had used her most recent passport frequently, had several Iraqi visas and was living in Qom prior to departure. There did not appear to be any consideration of country information on the reliability of Iranian identity documents or entry and exit procedures at the international airport in Tehran. The delegate found the applicant could not speak Persian despite the applicant stating she could speak Persian in answer to Q12 on the application form and in the statement accompanying her application for protection.
119. The applicant’s statement set out her personal history including her expulsion from Iraq, her experiences of discrimination in Iran and her attempts to restore her Iraqi nationality after 2003. She stated that her husband managed to get passports due to his relationship with Iranian officials. The statement was vague and lacked detail regarding the material aspects of the claim. While the delegate had the benefit of interviewing the applicant there was no outline of the matters discussed at the interview.
120. While the Tribunal accepts that the statements made in the application form that she was stateless were incorrect, it notes the applicant provided her passport together with her application. The earlier applications for [temporary] visas would have been available to the delegate.
121. The delegate’s decision focussed on the applicant’s fear of returning to Iran on the basis of her lack of legal status in Iran as well as her gender, widowed status and Arab ethnicity. The delegate considered that the applicant would face significant ethnic and gender based discrimination if she returned to Iran.
The present circumstances of the visa holder
122. The evidence before the Tribunal indicates that the applicant is a [age] year old widow with some significant health issues. She came to the hearing in a wheelchair and claimed that she suffered hearing loss which required some amplification of the questioning.
123. The Tribunal accepts that the applicant lives in the home of her daughter and son-in-law and her grandchildren. Her daughter and son-in-law are supported by Centrelink benefits, as is the applicant. However, her [age] year old grandson gave evidence that he is working and provides physical and financial support to his parents and grandmother. He stated that his grandmother could not be supported in Iraq or Iran as the applicant’s children there had their own financial and health issues. No evidence was provided as to her Iraqi based son’s situation in either Iran or Iraq. The Tribunal found the applicant to be fairly evasive about his circumstances, although she did claim that living with him and his family in Iran was not possible because his wife and children did not like her.
124. The medical evidence provided indicates that the applicant suffers from [various health conditions]. The evidence indicates she has suffered from these conditions since her arrival in Australia.
125. Despite these health problems the applicant has managed to travel to Iraq for four lengthy visits with her Iraqi based children. She stated that during her visits she lived with her daughters and on one occasion she cared for her grandchildren while her daughter was bedridden after suffering a back injury. The Tribunal accepts that the applicant has several health conditions but does not accept that these conditions prevented her travelling overseas. It also notes that she had the financial resources to cover travelling expenses to Iraq. Her grandson stated that she liked to visit the holy sites in Iraq and has generally stayed in hotels during her visits; however, the applicant stated she stayed with her daughters during her visits. The Tribunal prefers the evidence of the applicant and considers that the applicant stayed with her children during her Iraqi visits.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
126. The applicant has continued to maintain that she does not have Iraqi citizenship and that her Iranian documents were obtained “unofficially”. The Tribunal has found that the applicant may be entitled to Iraqi citizenship but is not currently recognised as an Iraqi citizen.
Any other instances of non-compliance by the visa holder known to the Minister
127. There is no evidence before the Tribunal that there are any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
128. Six years have elapsed since the relevant non-compliance when the applicant made her application for protection on 27 August 2012.
Any breaches of the law since the non-compliance and the seriousness of those breaches.
129. There is no evidence before the Tribunal that the applicant has breached the law since the relevant non-compliance.
Any contribution made by the holder to the community
130. There is no evidence that the applicant has made any contribution to the community.
Relevant government policy
131. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
132. If the visa was cancelled, the applicant would be unlawful and subject to detention but would not be subject to indefinite detention as she could apply for Iranian travel documents and return to Iran.
133. The applicant has considered Australia’s non-refoulement obligations. If the applicant returned to Iran the Tribunal considers that she holds Iranian citizenship and does not accept that the applicant faces harm as a stateless person.
134. The Tribunal accepts the applicant’s written and oral evidence that she has made four trips to Iraq between 2013 and 2016 but has not visited Iran since her protection visa was granted. One of the passenger cards referred to by the delegate indicated that she had spent time in Iran; however, the Tribunal accepts this was an error made by the person completing the card on her behalf. The applicant has travelled on her Australian travel document and obtained Iraqi visas for those trips.
135. The applicant claims that if she returns to Iran she faces severe discrimination and mistreatment for reasons of her Arab ethnicity and that she would be particularly vulnerable due to her age, gender and widowed status.
136. If the applicant returned to Iran, the country information indicates that while there is some level of ethnic discrimination against Arabs, generally minority ethnic groups are integrated into Iranian society, participate in politics and identify with the Iranian nation. However authorities are sensitive to activism particularly if they perceive it to be a threat to the Islamic Republic.[17]
137. DFAT assesses that members of minority groups face a moderate risk of official and social discrimination. This may take the form of denial of access to employment and housing but is unlikely to include violence on the grounds of ethnicity alone. The applicant is a Shia Muslim and DFAT notes that 90% of the population are Shia Muslims.
138. With respect to her gender, DFAT[18] states that by regional standards, Iran is reasonably progressive in relation to women’s rights.
Women enjoy considerable legal protections in many areas, including personal safety, participation in the workforce, and mandatory schooling for girls. Although not a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (1981) or its Optional Protocol (2000), Iran has committed itself to the Sustainable Development Goals of the 2030 Agenda for Sustainable Development, including Goal Five on achieving gender equality and empowering women and girls. President Rouhani has identified gender equity as a key government priority. Two of Iran’s 12 vice-presidents are women, although no cabinet ministers are. In an August 2017 report, the UN Special Rapporteur welcomed the government’s stance towards advancing women’s empowerment. In March 2018, Tehran City Council launched a campaign to celebrate the achievements of ground-breaking Iranian women by installing large billboards around the city showcasing their pictures and stories.
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran p.3.4, 7 June 2018.
[18] Department of Foreign Affairs and Trade, DFAT Country Information Report Iran p.3.78, 7 June 2018.

However, despite official commitment to women’s equality, women face barriers to full participation in society.
3.89 DFAT assesses that most Iranian women face persistent societal discrimination and the threat of gender-based violence. Legislation, long-standing traditional values and gender roles continue to restrict the participation of women in the workforce and community.[19]
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report on Iran, 7 June 2018.

140. The Tribunal considers that the applicant returned to Iran she might face some social discrimination in accessing accommodation due to her ethnicity but country information indicates she would not otherwise face serious harm or mistreatment. She is an older Shia Muslim woman who appears to be devoutly religious, wears traditional religious clothing from choice, is not in any domestic relationship and is not a woman’s activist. She would not be seeking employment or educational opportunities in Iran. There is no evidence she would face religious or gender based mistreatment.
141. Taking into account current country information, the Tribunal does not accept that if the applicant returned to Iran she would face discrimination which would amount to persecution. It also does not accept she would face significant harm in Iran. It does not accept she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
142. There are no consequential cancellations under s.140 of the Act and no evidence that cancellation would breach the obligation to consider the best interest of any child under the age of 18 years or family unity principles.
143. The Tribunal considers that if the visa was cancelled and the applicant had to return to Iran she would face some hardship as the evidence indicates that her [daughters] live in Iraq and there is no evidence indicating that she would be easily able to obtain Iraqi citizenship. Much would depend on whether she could satisfy the Iraqi authorities that she was born in Iraq to Iraqi born parents. It is possible she could do so, however, as she pointed out, if she could easily obtain Iraqi citizenship she would have done so to avoid having to seek Iraqi visas, renewals and the associated costs.
144. Given her age, state of health and lack of literacy the Tribunal considers she would require family support if she were to return to Iran without suffering significant hardship. There is little evidence to indicate that if she returned to Iran, she would have the support of family members in Iran. It is possible that she could live with or near her son’s immediate family in Qom but there is no evidence as to the adequacy of any such arrangement.
145. With respect to her visits to Iraq, she has consistently claimed that she does not have any acceptable Iraqi identity documents and that she cannot return to live in Iraq because she is not recognised as an Iraqi citizen. She has not claimed to fear harm in Iraq during visits; her protection claims against Iraq referred to her lack of status and inability to access basic human services in Iraq.
Conclusion
146. The Tribunal considers that the applicant has provided incorrect information in claiming that she is a stateless person and that the decision to grant the protection visa was, in part, based on a finding that she was a stateless person and might face some discrimination if she returned to Iran. She may not have been granted a protection visa if she had provided the correct information, however, the decision was partly based on her fear of significant gender based and ethnic discrimination. In considering the situation for the applicant if she returned to Iran now or in the foreseeable future, the Tribunal does not consider that Australia would be in breach of its non-refoulement obligations. These factors suggest that the visa should be cancelled.
147. However, on the other hand, the Tribunal has considered the circumstances of the non-compliance. The applicant provided a copy of her Iranian passport at the time she made her application. Other Iranian identity documents and country information relevant to the issue of statelessness were available at the time of the decision to grant the visa. In her statement and in her oral evidence the applicant stated that her husband had “managed to get us passports”. The applicant may have claimed at the interview with the delegate that her husband paid money to obtain the passport and the delegate concluded that the applicant’s Iranian passport was a fraudulent document; but the Tribunal notes this claim was not scrutinised. It may be that at the time the delegate gave much greater weight to the applicant’s ethnic and gender based claims than her claims of statelessness, and if this is so, then this may have been a reasonable approach to the applicant’s application. But the fact remains that the issue of the claim of statelessness, which now sits at the heart of the decision to cancel the visa, was not rigorously examined at the time of the visa application.

148. The Tribunal has considered the applicant’s current situation and the hardship she would suffer if she returned to Iran. She is [age] years old, speaks Arabic and Persian but is not literate in any language. There is no evidence that she would be supported in Iran whereas she has the support of her family in Australia and she has considerable physical and medical needs. There is no evidence these needs would be met in Iran. It has been six years since the non-compliance took place and although there is no evidence that the applicant has made any contribution to the community and has generally been in receipt of Centrelink benefits, in all the circumstances, there is little else the applicant could do or achieve given her age, health and literacy.
149. In weighing the factors set out above the Tribunal considers that the circumstances in which the non-compliance occurred, the hardship to the applicant if she were to return to Iran and her current circumstances outweigh the fact that she provided incorrect information and that her visa was partially based on her claim that she was a stateless person.
150. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
151. 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.

[2018] AATA 5172

29 October 2018

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