1724140 (Refugee)

1724140 (Refugee) [2019] AATA 6436 (7 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724140
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Sean Baker
DATE OF ORAL DECISION:  7 November 2019
DATE OF WRITTEN STATEMENT:         11 November 2019
PLACE OF DECISION:  Melbourne
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 11 November 2019 at 3:11pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Stateless – Faili Kurd – incorrect answers – bogus documents – name change – identity officer based decision on insufficient evidence – issues with Department’s investigation – no non-compliance – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 359AA ,438(1)(a)

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
MIEA v Wu Shan Liang (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to 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 delegate found that the applicant had provided incorrect information in his application for protection and that the factors in favour of cancellation outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 7 November 2019. The following are the reasons for that decision.
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
Certificate
On the Department file was a purported s.438(1)(a) certificate. This purported certificate is defective in several respects. It identifies the public interest as being that the documents may be of public interest. It goes on to particularise that although much of the information has been disclosed to the applicant in the s.107 Notice, ‘specific details such as the Department’s investigative methods and individuals involved in the correspondence may be considered contrary to the public interest as it could reveal a confidential source of information.’ but the folios referred to do not ‘reveal a confidential source’, as they refer to the Department decision maker and the applicant only, and the purported certificate has not further particularised the information. I note further that the Department has redacted details, not only on the folios identified in the purported certificate but throughout this file – it is not clear on what basis this has been done. I find that the certificate is not valid.
Claims and evidence
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 in the following respects:
The applicant answered questions in his protection application incorrectly when he declared that:
·he had not been known by any other name, because in the identity interview he said he had previously been known as [Alias 1];
·he did not answer the question in relation to his citizenship which is incorrect as the delegate found that he held a genuine Iranian driver’s licence which can only be held by an Iranian citizen, that the applicant was therefore an Iranian citizen;
·his answer to why he left Iran was incorrect as he was not a stateless Faili Kurd but an Iranian citizen as found by the delegate, therefore his claim of statelessness is incorrect;
·his answer to what he feared may happen if he goes back to Iran, where he claimed he would be subjected to harassment and would be either killed or imprisoned because of his illegal departure is incorrect because he is the holder of an Iranian driver’s licence issued to citizens. Further he returned to Iran in May 2011 for [a number of] months and could not explain how he left Iran after overstaying his visa;
·his response that he feared he would be killed, harmed or mistreated as a stateless Faili Kurd without any identity documents is incorrect as he returned to Iran and remained there for [a number of] months, engaged with the authorities without incident, holds an Iranian driver’s licence and therefore other documents; and
·as a documented Iranian citizen, regardless of ethnicity, would face no harm or discrimination as a Faili Kurd.
The delegate found that the applicant had not complied with section 101(a) as he did not provide an answer to the question on nationality, and with section 101(b) as he provided incorrect answers as indicated above.
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.[1] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister or on review, the Tribunal.[2]
[1] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282-283; Nagalingam v MILGEA (1992) 38 FCR 191 at 200, McDonald v D-G of Social Security (1984) 1 FCR 354 at 357; Swan Television & Radio Broadcasters Ltd v ABT (1985) 8 FCR 291 at 297.
[2] Mian v MILGEA (1992) 28 ALD 165 at 169; Singh v MIEA (unreported, Federal Court of Australia, Sackville J, 6 December 1994) at [14].
Although the visa holder must be invited to show that the ground does not exist, or if it does, to show cause why the discretion should not be exercised, this does not place an onus on the visa holder to establish at that point that the visa should not be cancelled. In Zhao v MIMA, the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[3]
[3] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
While that case was concerned with cancellation under s.119, the Court’s comments appear to me equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw[4] have no direct application in the context of administrative decision making,[5] in the context of s.109, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.[6]
[4] (1938) 60 CLR 336.
[5] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282, Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10].
[6] Tarasovski v MILGEA (1993) 45 FCR 570 at 572-3; Singh v MIEA (unreported, Sackville J, Federal Court of Australia, 6 December 1994) at [16]; Mian v MILGEA (1992) 28 ALD 165; NBDY v MIMA [2006] FCAFC 145; Gido-Christian v MIAC [2007] FMCA 825
In this case I have reached a different view of the claimed non-compliance to that of the delegate. I have set out below my reasons for deciding this.
The applicant was born on [a certain date] in Ilam, Iran. The applicant arrived in Australia in November 2009. He attended an entry interview in December 2009. In March 2010 he was granted a protection visa on the basis of the claims he made in his protection application and at interview.
On 4 August 2014 the applicant attended an identity assessment with an officer of the Department, for the purpose of assessing his identity for his application for Australian citizenship.
It appears that his responses at that interview gave rise to concerns with his claimed identity, and led the identity officer to form the view that on the balance of probabilities the applicant was not stateless and likely to be a documented Iranian citizen.
The Department then undertook an investigation and presented the information from the identity interview and their investigation to the applicant in the s.107 notice.
Return to Iran
The applicant travelled to Iran [in] May 2011 and remained there until he returned to Australia [in] September 2011. His travel to Iran was discussed with him at the identity interview and at the hearing. The applicant says that he returned to Iran because he missed his family and wished to see them. He says that he was not aware that this would affect his Visa or his citizenship. He said that he stayed in Tehran for a few days and then returned to Ilam. I asked if he had had any difficulties and he said he had not because he returned as an Australian not a Kurdish Faili. I noted the information in the Department file that the applicant had returned to Iran holding an Iranian visa. He said this was correct. I asked how long that Visa had allowed him to remain in Iran and he said he thought it was for a month. I asked him then why he had stayed for [a number of] months. He said that this was because he found his wife and got engaged to her and this process took considerably longer than the month. I asked if he had approached the Iranian authorities to extend his Visa and he said he had not. I asked if he was concerned about overstaying his Visa, and he said he was not because he knew he could just pay some money and leave the country. He said that everyone did it like this.
I noted that he had sought protection on the basis that he was afraid of returning to Iran. He said that that was correct, but he returned to Iran as an Australian, not as a stateless Faili Kurd. I asked if he understood that his return to Iran may lead to legitimate concern that he was not afraid of returning there when he applied for protection, and therefore may have not been telling the truth about his claims. He said he understood this, and if he had returned without documentation, then he would have been in trouble, but he returned with Australian permanent residency. He said he was proud to be returning as an Australian.
I then asked the applicant how he had departed Iran. He said that he did not exactly remember as it had been 7 to 8 years ago. I asked him to tell me in as much detail as he could. He said that he had had to pay some money to get passed through the gate. He said that the officer would know that he or she was in trouble if they stamped his passport, so that is why they did not stamp his passport with an exit stamp. I asked if he knew this or he just suspected it and he said he just suspected it, he did not know.
He confirmed that he had travelled at this time under the name [Alias 2] on his Australian Titre de voyage. This appears confirmed by the copy of his incoming passenger card on the Department file which is in the name [Alias 2] and which would have had to have matched the name on his TDV. This is significant for reasons below.
Change of name
Shortly after returning from Iran, less than a month later, [in] September 2011, the applicant applied to change his name from [Alias 2] to [Alias 1]. I asked him why he did this. He said because he was happy to have a name with a certificate. I said that this did not make sense to me and he said he was happy back then that he got something, and he realised he had to match his name with the rest of his family who changed their name from [Surname 1] to [Surname 2]. I asked which family members and he said his first cousins or other members who have their documents after being Faili Kurd. I asked if he meant relatives in Australia and he said in Australia, overseas, all the family members.
I explained that the concern of the Department, and my concern, was that he had done this in an attempt to hide his genuine identity, which may lead to the supposition that he was in fact an Iranian citizen and had changed names to obscure this. He said he understood but that he had done this because he wanted to have the same name as his family members. I asked why his family members had changed their name. He said that [Surname 2] was an ancestral name and when someone does something the others follow so maybe that was the reason behind that. I asked why he had changed his first name from [First Name 1] to [First Name 2] and he said that when he came by boat they were being called [First Name 2] or brother and so he thought he could change his name to this.
I noted the submission by his earlier representative that his change of name related to the evidence he had given in the case of a people smuggler. I showed the applicant the letter on file from the Commonwealth DPP. He said that this could have been part of the reason for the change but the main reason was because his family had changed their names. He said he had not placed such importance on this.
I asked why the letter from the DPP, dated [October] 2012, mentioned both names. He said that this was because he had told the DPP that he was known by both names.
I asked the applicant if he had given evidence and he said he had gone to the Court [numerous] times and given evidence. He said that on one occasion the accused people smuggler had been there and seen him. I asked if he had had any problems because of this and he said he had not.
I note that publicly available information indicates that the people smuggler was convicted and sentenced to [a number of] imprisonment.[7]
Driver’s licence
[7] [Source deleted]
At the identity interview the officer raised with the applicant the fact that the applicant possessed a full [State 1] driving licence, issued [in] August 2010, which according to [State 1 Road Authority] policy meant the applicant needed to present a full Iranian driver’s licence or have held an overseas probationary licence for at least three years from his 18^th birthday. It is unclear where the identity officer got this information as they have not referenced it. The information I have found differs significantly.[8]
[8] [Source deleted]
The applicant, according to the identity assessment, admitted that he had provided a copy of his Iranian driver’s licence to [State 1 Road Authority]. He further added that he had been driving in Iran since he was [a certain age] and that he needed a licence for his [specified] job. The identity assessment goes on to say that the applicant, in an attempt to provide an explanation to this finding, claimed that the license he had provided to [State 1 Road Authority] was a counterfeit licence a friend had obtained for him. He said that after he had obtained his [State 1 Road Authority] licence he had thrown out this document because it was an Iranian document, but said that he was certain he had photocopies of the licence at home. He returned some two hours later and provided a photocopy of an official translation of the licence and claimed that he was unable to find the original license or a photocopy of it.
The identity officer went on to make some significant and profound findings on the basis of the information the applicant had given, the officers interpretation of that information, and the photocopy document provided by the applicant.
Inexplicably, the cancellation decision record indicates that this document was not considered a reliable and accurate one and was therefore not recorded in Department systems.
According to the identity assessment the photocopy of the translation of the [Iranian] driver’s licence, issued to [Alias 2] [in] April 2006 in Tehran shows that the bearer is the son of [Mr A], was born in Ilam on [a certain date], and that a birth certificate was provided as evidence of the bearer’s identity and age.
The identity officer notes that the information contained on the translation of the licence appears to be consistent with information contained in a genuine Iranian driver’s licence, however the client claimed that the birth certificate number and the licence number listed on the licence are fake numbers.
After the identity interview the Department confirmed with [State 1 Road Authority] that the Visa holder had provided an Iranian driver’s licence issued on 14 April 2006 to obtain his full [State 1] driver’s licence. The cancellation decision states that this licence was in the name of [Alias 1], and states that this indicates the applicant represented himself to [State 1 Road Authority] under the name [Alias 1] whilst he maintained to the Department of immigration that he was known as [Alias 2], and suggested the photocopy of the translation of the driver’s licence he provided to the identity officer following his interview was not an accurate translation of his claimed Iranian driver’s licence and suggested that this was counterfeit. The cancellation decision then goes on to state that the applicant is the holder of a genuine Iranian driver’s licence. The conclusion that the driver’s licence was genuine appears to be based on the fact that [State 1 Road Authority] accepted this as a genuine overseas licence.
These findings are significant because they lead the cancellation delegate to the conclusion that the applicant is an Iranian citizen because he holds a valid driving licence, which requires the provision of valid national identity documents, which in turn are issued only to Iranian citizens.
I asked the applicant about his acquisition of a [State 1] driving licence at the hearing. He said that he had been told by people that if you brought a fake Iranian licence they could get a full licence and would not have to do undertake the exams and driving test. He said this was a common thing and a lot of people were doing. I asked what exactly he had shown [State 1 Road Authority]. He said he had paid money and they had made him a fake Iranian driving licence, and [State 1 Road Authority] were just having a look at it, and maybe they kept a copy, and they didn’t even know if it was a fake one or not. He confirmed that the name on that licence was [Alias 2]. He explained that after he had changed his name, he was issued with another driving licence under that name, with the same expiration date. He presented that licence to me at the hearing.

I asked if he had at home the old licence under the name [Alias 2]. He said he did not because it was a long time ago, he had chopped it up, he had been asked this by the identity officer as well, but he had destroyed it because carrying fake documents was really dangerous.
He reiterated however, that the official translation he had provided to the identity officer was in the name [Alias 2] and could not have been in the name [Alias 1] as the translator would have got in trouble.
I noted to the applicant that on the Department file was correspondence between the Department and [State 1 Road Authority] which appeared to indicate that they had no records under [Alias 2]. I asked why he thought this would be. He said that he did not understand because they should have this name in their system.
I noted to the applicant the concern that his Iranian driver’s licence was a genuine document, which would require Iranian identity documents to acquire, and which may therefore indicate he was an Iranian citizen. The applicant said that this was not true, that the fake Iranian driving licence had been obtained by him when he was in Australia, he had asked a friend who had sent it to him from Sydney. He said he was not sure but it may have been manufactured in Sydney. He said that the birth certificate number and the driving licence number were not genuine.
I noted that the identity officer had interpreted the applicant to have said that the applicant had used this licence to drive in Iran. The applicant said this was not true, he had had it made when he was here. He said he had been driving in Iran since he was 18, but he had not used the licence we were talking about, but something else. I asked what he had used and he said he did not remember exactly but he thought probably another fake Iranian driving licence.
The applicant’s representative noted that it did not appear possible for the applicant to have been issued with a [State 1 Road Authority] licence in 2010 under the name [Alias 1], because he would have had to have provided to [State 1 Road Authority] evidence of his identity.[9] The representative noted that at this time the applicants other identity documents, such as the TDV, recorded his identity as [Alias 2]. She noted that it should not be for the applicant to have to prove this, the Department should have established the basis on which an applicant was issued with a licence in Victoria.
Dob in
[9] [Sources deleted].
I put to the applicant pursuant to s.359AA adverse information contained in the Department file in the form of a confidential dob in which had been provided to the Department in September 2013. I noted that this dob in contained details of the applicant’s identity, life, and claims, and that the person appeared to know quite a lot about the applicant.
After a break, the applicant responded that the person who had provided this information had done so as a result of animosity rather than anything else. He said that most of the information provided was publicly known in the community, that this might have been the people smuggler, who would know what to say and because of the nature of the claims would know that the applicant had provided this information. He said if it was this person or someone connected with this person, a lot of the information would be known to the community, and they have then added false information such as the numbers of his siblings to make it sound legitimate.
Other information
The applicant’s wife also gave evidence, she said that she was also Kurdish but an Iranian citizen. She said that she and the applicant had grown up in the same suburb. I asked if she had known the applicant before he had left. She said she had not known him personally but had known the family. I asked if she had been aware whether he and his family were stateless. She said that she had not known exactly, as these things were not explicitly discussed, but that a lot of people in that neighbourhood were stateless, and she had a lot of childhood friends who were amongst those who did not have identity documents as Faili Kurds. She said that when the applicant returned in 2011, her family gave consent for them to be married only if they left Iran to do so. I asked why this was, and she said because they could not have been legally married in Iran, because the applicant did not have identity documents, and the marriage would not have been lawful. She said that this was why they only got engaged, and why they got married in Australia, away from family.
A further piece of information which appeared to have caused concern to the delegate was information from the applicant’s wife’s application. It is noted in the cancellation decision that in the application for a prospective marriage Visa for the applicant’s wife, the case officer recorded an assessment note stating that the Visa holder and his spouse are both ‘Iranians’ and that they had known each other since childhood.
Consideration and findings
I have carefully considered all of the information on the Departmental file, the response to the s.107 notice provided by the applicant, the submission made to the Tribunal, and the evidence of the applicant and his wife at hearing.
A large part of the decision-making matrix for the cancellation decision is based on the identity interview. The identity interview was conducted in English. The identity officer states that the interview was conducted without the assistance of an interpreter; that this was in consultation with the client, that the officer had noted the English language skills of the applicant were at the intermediate level, and the client was satisfied for the interview to continue in English, but was advised that if he did not understand the questions he could ask for clarification or request the use of a fine interpreter.
It is surprising to me that such a potentially important interview was not conducted with the assistance of an interpreter in the applicant’s preferred language. There is no information to establish that the identity officer is competent to assess an applicant’s English language ability. There is no information anywhere else on file to establish the applicant’s English language ability. I note that before the Tribunal the applicant, and his wife, gave evidence with the assistance of an interpreter.
At hearing the applicant said that he agreed to the interview being held in English because he did not know that it was that important.
I have considered the gravity of the situation, that is, that the interview, at least in part, formed the basis for the cancellation of the applicant’s permanent visa.
I have grave concerns, given that there is no expert information about the applicant’s English language ability, that he was able to understand the questions that were put to him, and perhaps more importantly, that his answers may have been misunderstood. There is a very real potential that in this case errors in understanding between the applicant and the identity officer led to some of the more significant conclusions of the identity officer. This is particularly the case where the identity officer appears to have drawn conclusions from what was said by the applicant, and drawn adverse inferences from those conclusions. For example the officer appears to have been of the view that the applicant used the driving licence which he provided to [State 1 Road Authority] to drive in Iran, but it is entirely possible from what is recorded in the identity assessment that the applicant was instead discussing the fact that he had driven previously in Iran, not that he had driven there on this license. Similarly the officer draws an adverse inference from the applicant stating that he has a photocopy of the Iranian licence, and then providing a photocopy of a translation of that licence. The officer states that they can only interpret the client’s behaviour as a premeditated attempt to disguise the document. It is entirely possible that the applicant was referring to the photocopies of the translation rather than photocopies of the licence itself. Indeed the entire identity assessment includes instances where apparently damning evidence given by the applicant may instead be misunderstandings of language. Without accurate and reliable interpretation it is impossible to tell.
Because of what I find to be profound concerns with whether the officer has been understood, has understood the applicant, and has not drawn incorrect conclusions and inferences from what has been said, in the absence of an interpreter, I find that I can place very little, if any, weight on the identity assessment in this case.
I turn now to consider the further concerns that I raised with the applicant.
Firstly, the question of the applicant’s return to Iran. I continue to hold some concerns that this action of the applicant, particularly without a clearly compelling reason to return, may indicate that the applicant did not fear harm on return at the time of his protection application as he had claimed. However, his stated reasons for why he did not fear return, that is that he returned as an Australian permanent resident, rather than an undocumented Faili Kurd, are coherent. Relevantly, I did not consider that the applicant was not credible. With the assistance of an interpreter I found the applicant’s answers to these and other questions to be frank, and whilst I found some of his responses curious, I do not believe that this was because he was attempting to mislead me, but rather may have indicated a degree of naïveté about the gravity of the situation he finds himself in, a lack of experience with official processes, and only a moderate level of formalised schooling. Whilst I cannot entirely discount the possibility that the applicant has deliberately misrepresented, lied and obscured information about himself, I consider this rather less likely than that he has approached this process guilelessly.
As I said I continue to have concerns that the applicant returned to Iran, but I cannot discount his claim that he did so on the basis that he saw himself returning with a very different status, that is as an Australian permanent resident, and not as holding the status, importantly as an undocumented person, which he claims led to him being harmed in the past in Iran.
His reasons for overstaying his visa again, are plausible. I am aware that Iranian engagements may be a lengthy process. I note that despite him remaining in Iran for [a number of] months he did not stay longer and get married. His wife gave evidence that this was because they could not get married in Iran, him being undocumented. This may add some weight to his assertions.
The delegate had concerns with the fact that the applicant overstayed his visa, and with the applicant’s claimed method of departure from Iran. However, there is a vast body of country information which supports that corruption is endemic in all sectors of the Iranian economy and across society. In particular I note that Transparency International ranked Iran 131 out of 176 countries in its annual corruption perceptions index.[10] There are reports of bribery being at least possible to exit the Tehran airport with fraudulent documents.[11] It is therefore at least plausible that the applicant departed Iran with an expired visa by paying a bribe as he claims. This would also explain why the applicant’s TDV was not stamped on departure.
[10] DFAT Country Information Report, Iran, 7 June 2018, 2.15.
[11] Research Directorate, Immigration and Refugee Board of Canada, Ottawa, Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini International airport; whether authorities alert border officials of individuals they are looking for; incidence of bribery of Iranian border officials to facilitate departure; the punishment for border officers caught taking such bribes (2009-October 2013) [IRN104624.E], 21 October 2013,
Secondly, the applicant’s change of name. Having spoken to him at hearing I am no clearer about why the applicant decided to change his name shortly after returning from Iran. But it is also not entirely clear to me how this would have advantaged the applicant if he is indeed an Iranian citizen and attempting to hide this fact. It is unclear to me how changing from one name to the other has allowed him to gain an advantage. It is unclear to me from all of the investigations that the Department has done which identity may be the ‘genuine’ identity and in which he may hold the supposed genuine Iranian documents. The cancellation delegate comes to the conclusion that [Alias 1] is his genuine identity, on the basis that the applicant provided a genuine Iranian driver’s licence in this name. But for the reasons below I do not accept that he did so. I also do not accept that the applicant did concede he had used the name [Alias 1] prior to his change of name in Australia at the identity interview given my findings above about that interview and my finding that I can place no weight on that interview.
Thirdly and most importantly I turn now to consider the driver’s licence. As above, this formed a very central part in the decision.
It is not clear to me that the conclusions that have been drawn are supported by the information. Firstly I can find no coherent basis for the conclusion in the cancellation decision that the Iranian driver’s licence, fraudulent or otherwise, was in the name [Alias 1]. The cancellation delegate appears to have reached this view on the basis of the information obtained from [State 1 Road Authority]. However, on reading the email traffic between the Department and [State 1 Road Authority] it is clear that [State 1 Road Authority] provided a PDF of the applicant’s driving license in his current name, [Alias 1]. The Department then went back to [State 1 Road Authority] asking for information on foreign driver’s licence that had been provided to obtain his [State 1] licence. [State 1 Road Authority] responds saying that an overseas licence was recorded as ‘Islamic Republic of Iran, the licence number, transferred [in] April 2016.’ The response from [State 1 Road Authority] does not appear to say what name was on this foreign licence. Whilst it is true that [State 1 Road Authority] stated that they were unable to find any record under the name [Alias 2], it is unclear whether this was because they did not have the licence number, which was subsequently provided for the name [Alias 1], or because it had been overlaid on their system by the applicant’s subsequent change of name to [Alias 1]. The cancellation delegate appears to have conflated the two pieces of information from [State 1 Road Authority] to come to what appears to be an unsubstantiated conclusion that the Iranian driver’s licence was in the name [Alias 1]. Further, according to the identity assessment, the name on the photocopy of the translation was [Alias 2]. And lastly, I accept the submission of the representative, which is supported by the information on the [State 1 Road Authority] website, that the applicant would have had to have provided identity documents to support his identity when he was issued his [State 1] driver’s licence [in] August 2010. As the cancellation decision makes clear at this time the applicant’s TDV, which was, as far as we are aware, his primary form of identification at this time, was in the name [Alias 2]. I find that there is no basis to support a conclusion that the applicant held an Iranian driving license in the name [Alias 1].
There is little basis to rebut the applicant’s claim that the licensee provided to [State 1 Road Authority] was indeed fraudulent. It does not appear supported that [State 1 Road Authority] engage in detailed considerations of whether foreign licenses are genuine or not, or whether they have the expertise to distinguish between genuine and fake Iranian driver’s licences. It is very difficult for us to take this matter any further because the Department does not appear to have recorded the details or appearance of the photocopy of the translation. In this situation it is at least plausible that the applicant is telling the truth and he provided to [State 1 Road Authority] a fake Iranian driver’s licence so that he did not have to sit the driving test or undergo the exam.
Certainly, given all of the concerns above, I find that the conclusions drawn by the cancellation delegate that the applicant held a genuine Iranian driver’s licence, that he therefore must’ve held genuine Iranian identity documents, and that he was therefore an Iranian citizen cannot be supported given the concerns with the information that this chain of inferences is based upon.
Indeed, many of the issues of this case could have been clarified if the Department in investigating this and other such cancellations would concern itself with the counterfactual. That is, could the applicant’s claims be true? For example, the Department could have asked [State 1 Road Authority] whether there was any reason that the name [Alias 2] did not appear on their systems, and whether this could be because he had changed his name in 2011 to [Alias 1]. The Department could have recorded the photocopy of the translation of the licence. The Department could have made enquiries with the DPP to see whether the claim that the applicant may have changed his name in part because of giving evidence as a witness was plausible.
I turn now to deal briefly with the other information which form the basis for the cancellation. I discount the dob in. Information from unknown sources is unreliable and I accept the contention of the applicant and his representative that much of this information would have been known to members of the community, and at least the possibility that some of these members of the community, who may have been connected to the people smuggler who was convicted partly on the basis of the evidence given by the applicant, may have wished harm to the applicant. It is also unclear how much of this information is true, given that the dob in states that the applicants ‘real’ identity is [Alias 1], where for the reasons above I am unable to find that he was known by this name prior to his decision to change his name in 2011.
I have had regard to the information on the applicant’s wife’s prospective spouse visa application. In IRIS there is a brief notation that the applicant and his wife are both Iranians. There is no ability from this brief statement, or from the contextual information before and after, to determine whether the writer meant that they are both Iranian nationals, or were both born in Iran, or from an Iranian background, as opposed to being from different cultural backgrounds. I note that in the spouse stream there is often a concern where an applicant comes from one culture and the sponsor from a different culture. I find, given these doubts, that I can place no wait on this as establishing that at that time the applicant held himself out, or was established to be, an Iranian national.
I have carefully considered all of the information before me. I find that the concerns raised by the cancellation delegate amount to only that, concerns. In particular, for the reasons above I can place no wait on the identity assessment or the conclusions and inferences drawn from that assessment. As above whilst some of the actions, behaviour and claims of the applicant are suspect, this is all. Given my concerns with the information, and the potential for there to be plausible and credible alternative explanations for most if not all of these things, I find that the concerns here rise to the level of suspicion only. I find, in particular because of the gravity of the consequences, that the suspicions are not adequate to conclude that the applicant is an Iranian national, has a genuine Iranian driving licence, or any other Iranian documents. There is simply not a sufficient evidentiary basis to establish these conclusions. I am not suggesting that there is no concern here that the applicant may indeed be an Iranian national. He has not entirely convinced me that he is indeed stateless, nor that his claims are true, nor that his explanations are true. But the cancellation regime in the Act requires the Department, or on review the Tribunal, to establish the facts on which the non-compliance is grounded.

I find that in this case the information before me does not establish the facts of non-compliance. I find that there is not a sufficient basis to conclude in this case that the applicant is a national of Iran. I find that there is no sufficient basis to conclude that he has genuine Iranian identity documents of any kind, nor the right to obtain these.
I do not accept that the information before me, which is accepted, and reliable, establishes that at the time of his protection application the applicant was known by any other name, held citizenship of any kind, was not a stateless Faili Kurd, did not fear return to Iran at that time as an undocumented stateless Faili Kurd without any identity documents.
I find therefore that the information before me does not support findings that the applicant provided any incorrect information nor did not provide information, as particularised in the s.107 notice.
Conclusions
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Sean Baker
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.

[2019] AATA 6436

11 November 2019

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