1710771 (Refugee)

[2018] AATA 3277

1710771 (Refugee) [2018] AATA 3277 (12 July 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710771

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Josephine Kelly

DATE:12 July 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 12 July 2018 at 2:53pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Stateless – Iran – Visa holder’s identity – Whether there are grounds for cancellation – Inconsistent evidence – Family history – Family names – Whether claims and evidence are implausible – Citizenship – Race – Faili Kurd – Identity Assessment Report – Representation on social media – Decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 424A, 438, 440

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 May 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that they are not satisfied as to the holder’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 11 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if not satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1AA) – Not satisfied as to identity

6. A visa may be cancelled under s.116(1AA) if the Minister or the Tribunal is not satisfied as to the visa holder’s identity. An example provided in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014, (at p.24) of when this ground may be made out is if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine.

7. This case was a consequence of the applicant’s applying for citizenship on 15 October 2014. He had arrived in Australia by boat in January 2010 without any identity documents, but was granted a protection visa based on his claims to be a stateless Faili Kurd from Iran. He has never provided any identity documents to support his claimed identity. He claims that he was born in [year] in the mountains of Ilam, Iran, after his family were forced to leave Iraq. The documents he provided to support his citizenship application were issued in Australia, based on the identity accepted by the department when he was granted the visa in 2010. As the decision-maker wrote: 

   During this period undocumented visa applicants were having their identity claims accepted at face value partly due to the department’s limited country information regarding Faili Kurds.

8. The applicant was asked to provide first-tier documentation, that is, documentation such as a passport, Iranian identity card, or an Iranian birth certificate, to support his citizenship application. He advised that because he was a stateless Faili Kurd, he was unable to be issued any.  Consequently, he was asked to attend an Identity assessment interview on 16 June 2016.  An Identity Assessment Report was then prepared.

9. The referral for and the Identity Assessment Report were subject to a s 438 certificate. The Tribunal raised the matter of the certificate at the hearing and provided a copy to the applicant after the hearing for his comment. His legal representative made written submissions. Consequently, the Tribunal directed pursuant to s 440 that those documents be disclosed only to the applicant, his legal adviser and the Tribunal, with the name of an officer redacted. The same and other documents were provided to the applicant by the department after the hearing in response to a Freedom of Information request without that officer’s name being redacted.

10. The Tribunal invited the applicant to comment on certain information pursuant to s 424A of the Act. His legal adviser made written submissions.

11. The decision-maker in this case considered five matters which led to the conclusion that the applicant had provided contradictory and conflicting identity information about himself and that his correct identity is unknown. He was not satisfied as to his identity and considered that there was a ground for cancellation under s 116(1AA) of the Act.

12. The Tribunal considers each of those matters in turn.

13. The decision-maker found that the applicant had provided inconsistent and implausible accounts regarding his family history and composition.

14. In his Biodata interview on 31 January 2010 he claimed only to have [specified siblings, including a brother, named], but during the entry interview on 17 February 2010 he added [other specified siblings].  Later, the applicant attributed the initial omission to the adverse effects of the boat journey from [Country 1].  It was noted that at that time of the Biodata interview he was able to remember details such as telephone numbers and school names.

15. The Tribunal gives no weight to this matter.  He did provide the information on the next occasion. The Tribunal does not consider that not providing all the names of his siblings on the first occasion leads to the conclusion that he provided inconsistent information. The Biodata interview was conducted on the same day as he arrived in Australia by boat after several days at sea. It is plausible that he was exhausted and unwell and just wanted to get the form filled in and handed in. He may have been interrupted while filling out the form and just failed to complete that part of it.  He described what happened when he arrived in Australia. It was a very busy scene.  He provided complete information on 17 February 2010.       

16. The Identity Assessor put before the applicant during identity assessment interview, a photo of [a person, Mr A, with the same first name as the applicant's brother] who was listed as a friend on the applicant’s [social media] page. The applicant identified the person as his brother, [using his first name only]. 

17. The Identity Assessor wrote in the report that the surname [that appeared on the social media page was different to the applicant's surname, and] is a typical Farsi name with Persian roots, rather than a Kurdish name, and the person claimed on his [social media] page to live in Tehran and to have attended [an Iranian] University, which was unlikely for a stateless Kurd who would be unlikely to be able to attend university in Iran.  Neither of those matters was discussed with the applicant during the Identity Assessment Interview.

18. The applicant’s consistent response about those matters once he was made aware of them, was that both pieces of information were incorrect, his brother’s surname is [the same as the applicant's] and he is not an educated person and is working as a labourer. He said both that he did not know why his brother claimed to have attended [that Iranian] University and that he did it to attract women.   He also said that anything can be put on [social media] and that his brother could claim to have graduated from [American University 1].  He said that he did not know that his brother had [social media].

19. In the letter to the applicant in which it asked him to comment on adverse information, the Tribunal wrote:

    On your [social media] page you have a friend named “[Mr A]” whom you identified as your brother.  He uses a different family name to you and lives in Iran.  The family name he uses, [family name], is an old Farsi name and the name of one of the most famous and long lasting Persian [families].

20. The response from the applicant’s legal representative misstated what the Tribunal had written:

    The AAT letter states that the Applicant’s brother’s [social media] page lists [the applicant's] brother’s name as [Mr A] …

21. The response was quite lengthy but did not address the information the Tribunal had particularised. The response related a conversation the applicant claimed to have had with his brother in around September/October 2016 when his brother told him that he changed his name on [social media] to [the new family name,] because he liked the name.

22. The Tribunal concludes that the applicant knew that his brother used the [new family name] because that was the name listed as a friend on the applicant’s [social media] page. His brother was not listed [using the same surname as the applicant]. The applicant has not satisfactorily addressed the fact that he knew that his brother used the [new family name] before it became an issue following the Identity Assessment interview held on 16 June 2016.   He does not dispute that it is a Farsi name or the significance of that name, as the Identity Assessor described.

23. The legal representative also stated in the response to the Tribunal’s letter that the applicant had shown her his brother’s [social media] page in October 2017 and his name was now listed [with the same first name, but another new family name] and stated that he had attended [American University 1] as a PhD student, which demonstrated how easy and common it is for people to change the information on their [social media] profile.  The Tribunal accepts the latter proposition, but the response does not address the information the Tribunal had particularised.  

24. When questioned about the death of his mother and grandparents during the Identity Assessment Interview, the applicant said that they do not have the same burial rights as Iranian citizens and he does not know where they are buried.  The Identity Assessor considered that account lacked credibility, citing country information about access to appropriate services when a documented or undocumented refugee dies. 

25. When the Tribunal asked him if he had said that his family did not have the same burial rights as Iranian citizens, the applicant’s response was different.  He said that if someone passes away, everyone will look after them in the same way.

26. The Tribunal accepts that the applicant may not know where his mother and grandparents are buried.  He may not have attended his mother’s funeral.  The Tribunal has no country information before it about whether it is usual for [age range] Iranian or Faili Kurd males to attend their mother’s funeral.  

27. The decision-maker considered that the applicant had given an inconsistent and implausible account of the exit procedure out of Iran using a fraudulent Iranian passport because country information indicated that it would be extremely difficult to depart Iran as he claimed he did.

28. The Tribunal found the applicant’s evidence about his departure from Iran to be evasive.  He changed his evidence when he recognised a difficulty in his case.

29. When the Tribunal put to him that country information indicated that it was difficult to depart Iran using a false passport, he said that he asked an Australian immigration officer if we are able to copy an Australian passport, and he said yes.  He claimed to have little memory of the passport he had because it was seven or eight years ago.  He said that he did not remember if it had his photograph in it.  When the Tribunal said it was a very important document and it found it difficult to accept that he had not memorised the details in it in case he was asked and risked being rejected, and at least he would remember if the details were different from his own, he then said it was his photograph, but he did not remember whether the date of birth, his address, or his parents’ names were correct.

30. When asked what happened at the airport, the applicant said that somebody had let him go through the gates.  He showed his passport and had no difficulty. He thought he flew via [Country 2] where he was in transit and no-one asked for his passport.  When he arrived in [Country 3], someone picked him up from the airport.  “They” got his passport from him in [Country 1]. The Tribunal infers that he meant the people acting for the people smugglers. It accepts that is true.

31. The decision-maker considered the applicant’s account that he was only issued with a Green Card and his family was unable to update the Green Cards to be implausible, citing the Identity Assessor’s reference to country information that the Iranian Government had gone to great lengths to register and provide documentation to as many refugees and asylum seekers as possible.

32. The Tribunal does not agree with that assessment of the country information.  It has considered the DFAT Thematic report on Faili Kurds in Iraq and Iran of 3 December 2014.  The information about documentation such as birth certificates and registration cards for Faili Kurds is qualified so that it is not possible to assert that what the applicant claims is implausible.

33. The decision-maker relied on the Identity Assessor’s view that the applicant’s claim to have had [number] years schooling but to have studied [a specified grade] over four years to be implausible, and that given his brother studied at [a named Iranian] University, it is a possibility that the applicant studied at university during this period.

34. In summary, the applicant’s evidence is consistent with having a green card which enabled him to study to [a specified grade], although because of personal problems following his mother’s death, he completed [that grade] over four years because he had to work.  His legal representative addressed the Identity Officer’s concern that the applicant was vague about the location of the school, claiming that the applicant could not attend the government school part-time and completed [a specified grade] at a different unregistered school that was run by a charity which was located near a named ]location].   

35. He claimed that his family could not get a white card when the green card expired in about 2000 or 2001 but that he could work without any ID because there are legal and illegal jobs.  He described doing a [vocational] course in Iran about [number] years ago for which he paid a tutor. 

36. The Tribunal does not consider the applicant’s explanation to be implausible.  He was born in [year].  He was able to study while his family held a green card. He worked illegally thereafter, completed [a specified grade] at  charity school and paid for the [vocational] course.

37. The decision-maker considered that the applicant was unable or unwilling to describe any attempts to reinstate or obtain Iranian citizenship. When asked by the Identity Assessor if he had attempted to have his citizenship reinstated, the applicant had said that he had taken no steps at all and that he did not care about obtaining citizenship as he was able to get things done without documentation.  The Identity Assessor noted that that response was in direct contradiction to the reasons the applicant claimed in his protection visa application.  

38. The Identity Assessor concluded that the applicant was most likely an Iranian citizen and therefore not a stateless person.

39. When the Tribunal put to the applicant that he had said he did not care about citizenship because he could do things without documentation, he said that it was not like that, and that wherever you live you learn how to live, and then gave a lengthy account of his study record in Australia, including a Bachelor degree, and said that if he had a qualification from the University [in Iran], it would have been a waste of time to then do his Bachelor degree again in Australia. When pressed, he said that it was pointless to seek Iranian citizenship because his father was not born in Iran and he had taken no steps to get Iraqi documents, he had never been to Iraq.  He denied claiming in his citizenship application that his parents lived in Baghdad, and said they were born there.

40. As the applicant’s legal representative pointed out, the DFAT Thematic Report, Faili Kurds in Iraq and Iran supports the applicant’s claim that he had no chance of getting Iranian citizenship because both his parents were born in Iraq.[1]

    [1] 3 December 2014 at 3.24 and 3.25.

    Conclusion    

41. The Tribunal has considered all the evidence and the submissions made on behalf of the applicant. It is clear that the Identity Assessor took into account the applicant’s demeanour and formed an adverse view of his credibility.  The Tribunal considers it appropriate to form its own view about the applicant’s demeanour and credibility.  It found aspects of his evidence unsatisfactory, as set out above.  The applicant was clearly very upset by the upheaval the cancellation decision has caused to his life.  He was resentful. It infers that he did not appreciate the importance of the Identity Assessment Interview and was somewhat arrogant, flippant and dismissive during that interview.  However, he behaved in a similar way during the Tribunal hearing.

42. That the applicant has not provided any documents to support his claim that he is an unregistered Faili Kurd is consistent with that claim.

43. The applicant has used Kurdish interpreters from the time he arrived in Australia.  That is consistent with his claim to be Faili Kurd.

44. He readily admitted that he speaks, reads and writes Farsi, which is consistent with country information that Faili Kurd refugees born in Iran often speak Farsi as a first language.[2]  On his evidence, he was educated in a government school at least until [a specified grade].

    [2] DFAT Thematic Report Faili Kurds in Iraq and Iran, 3 December 2014.

45. The information and analysis in the Identity Assessment Report that suggests, although not spelt out, that in fact the applicant is of Persian ethnicity, is his father’s first name, and his brother’s family name listed on the applicant’s [social media] page.  The Tribunal found the analysis of his father’s name speculative as stated above.  His brother’s Farsi name is of more concern to the Tribunal because the applicant has not provided a satisfactory explanation. 

46. The Tribunal found the claim made after the hearing about the further change of his brother’s name and the university he attended on his brother’s [social media] page, to be contrived and unconvincing. It reinforced its concern that the applicant has not satisfactorily explained why his brother’s Farsi name was listed on the applicant’s [social media] page at the time of the Identity Assessment Interview.  However, it is possible that the applicant and his legal representative did not appreciate the significance of the information set out by the Tribunal.

47. The Tribunal finds that the applicant’s command of Kurdish is inconsistent with his being of Persian ethnicity and therefore accepts that he is a Faili Kurd.

48. Having found that he is a Faili Kurd, the question is whether he is stateless as he claims.  That he is in fact an Iranian citizen is suggested by his unsatisfactory evidence about the passport he used to depart Iran, and his brother’s claim on his [social media] page that he had been educated at the University [in Iran].  

1. As the Tribunal has concluded that he is a Faili Kurd, it does not consider the claim by his brother on his [social media] page to have studied at the University [in Iran] strong evidence that the applicant has also studied at university or is not stateless.

2. The applicant left Iran in January 2010, before passports became biometric in February 2011.[3]  Even in 2016, there was a report of the arrest in Thailand of a passport forger who admitted to selling forged passports to people from countries including Iran.[4] The applicant’s claim to have left as he did is not implausible.

   [3] DFAT Country Information Report Iran 7 June 2018 at 5.31.

   [4] Op cit at 5.32.

3. For those reasons, the Tribunal is satisfied that the applicant is a stateless Faili Kurd from Iran as he claims.  It is satisfied that the applicant’s name is [name].

4. The Tribunal is satisfied as to the visa holder’s identity. 

5. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

6. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Josephine Kelly
   Senior Member