1726354 (Refugee)

[2020] AATA 811

1726354 (Refugee) [2020] AATA 811 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726354

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Melissa McAdam

DATE:12 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 February 2020 at 2:38pm

CATCHWORDS
REFUGEE – protection visa – Stateless – Federal Circuit Court remittal – Faili Kurd in Iran – Iranian identity card allowed residence but no other rights – discrimination but no persecution – left on false passport in own name – identity card now expired – fear of harm as undocumented failed asylum seeker – country information – decision under review remitted

LEGISLATION            
Migration Act 1958 (Cth), ss 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

AJZ17 v MHA [2019] FCA 1485

Chen Shi Hai v MIMA (2000) 201 CLR 293

MIAC v MZYYL [2012] FCAFC 147

MIAC v SZQRB [2013] FCAFC 33

MIMA v Savvin (2000) 98 FCR 168

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

SZSPX v MIMAC [2013] FCCA 1715

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. The applicant, who claims to be stateless, applied for the visa on 4 January 2013 and the delegate refused to grant the visa on 23 July 2013.

4. The applicant applied for review of that decision to the then Refugee Review Tribunal (RRT)[1]. The Tribunal, differently constituted, affirmed the Department’s decision on 14 November 2014. The applicant appealed the Tribunal’s decision in the Federal Circuit Court. The Court remitted the matter by consent, [in] October 2017.  The Court noted:

   [1] RRT Case Number 1310566

   The first respondent accepts that the application must be allowed on the basis that the second respondent (“Tribunal”) constructively failed to exercise its jurisdiction, asked itself a wrong question and/or applied a wrong test (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105 (31 May 2001) at [41], [82]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179) in finding (at [103]-[104]) that the applicant did not face a real risk of significant harm on return to Iran in circumstances where:

   (a)    the applicant claimed he would face imprisonment or harm on return to Iran because he had departed illegally on a fake passport …;

   (b)    the Tribunal accepted that the applicant would be fined up to Rials 2,000-20,000, or would face imprisonment for between two to six months, for having departed Iran unlawfully but did not consider whether:

   (i)a penalty of two to six months’ imprisonment or a fine of Rials 2,000-20,000 or both, met the requirements of significant harm as defined in s.36(2A) and s.5 of the Migration Act 1958 (Cth); and

   (ii)such penalty would lead to the applicant facing a real risk of significant harm.

5. On 13 August 2019 the matter was constituted to this Tribunal.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

20. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

21. An applicant will suffer significant harm if they will be subjected to torture: s.36(2A)(c). Torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted.  Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).

22. However, torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

23. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.

24. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

25. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

26. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

27. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

28. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

29. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

30. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.

    Mandatory considerations

31. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    SUMMARY OF CLAIMS AND EVIDENCE

    Protection visa application

32. The following is a summary of the claims and information provided by the applicant in his Protection visa application, lodged in 2013:

    a.The applicant was born on [date] in [a] Hospital, Yazd, Iran. He is stateless.

    b.He is a Faili Kurd and of Shia Muslim religion. He can understand the Faili Kurd language but not speak, read or write it. He is not married.

    c.His parents, older brother, and [number] sisters are living in Iran.

    d.He left Iran [in] April 2012, and arrived in Australia [in] June 2012.  He used a false passport on his journey. The passport was destroyed by a smuggler.

    e.He worked as [an Occupation 1] and [an Occupation 2] in Iran.

    f.He is in contact with his family in Iran by telephone.

    g.His parents were both born in Iraq. They were expelled by Saddam [Hussein] during the 1980s. The applicant and his siblings were born in Iran.  They are stateless Faili Kurds and have no identity in Iran.

    h.Initially his family were issued with Green Cards. He used the cards to attend school to primary level.  His father then paid a bribe so the applicant could attend secondary school.

    i.In around 2002-3 the Iranian authorities replaced the green cards with white cards.  The white card had to be renewed annually and cost approximately 20,000 tomans. The white card did not give the applicant any benefits. The white card allowed him to stay in Iran without being deported but it did not give any human rights.

    j.The applicant had no legal right to work in Iran. He could not purchase medical insurance or real estate or even a mobile sim card. He could not attend university. He had to obtain a travel permit to travel outside his state.

    k.The applicant worked illegally in Iran. If work inspection authorities came to his work place he would have to leave the premises immediately

    l.If he returns to Iran, the Etelaat will accuse him of being a spy for a westernised country, and imprison him.  This is because he has no document to confirm he left Iran legally.

    m.He has been discriminated against as a Faili Kurd by the Iranian authorities.

    n.He submitted copies of his and his siblings’ Iranian White Cards.

    Delegate’s Decision

33. The Delegate accepted the claimed identity of the applicant and his statelessness, for the purpose of the decision.

34. The Delegate accepted the applicant had suffered discrimination in Iran, as a Faili Kurd, but found that it did not rise to the level of persecution.

35. The Delegate was not satisfied the applicant would be subjected to differential treatment as a failed asylum-seeker. The Delegate concluded that the chance of the applicant suffering serious harm in Iran for residing in and seeking asylum in Australia, to be remote.

    Information to the Tribunal

    RRT Hearing, 12 November 2014

36. The applicant appeared before the RRT Member on 12 November 2014. The hearing was audio recorded and the following is a summary of the contents of the recording:

    a.The applicant’s White Card expired a few months after he left Iran.

    b.He is stateless in Iran.

    c.He was born in [a] Hospital but no Birth Certificate was issued at his birth. His mother was given a plain piece of paper by the hospital acknowledging the birth.

    d.His parents applied for a Birth Certificate on his behalf, in Iran. They went to the organisation that issued Birth Certificates. But there was no record for them so the authorities did not issue a certificate. They tried several times.

    e.When aged [ages], he applied for a Birth Certificate for himself, but was unsuccessful each time.  In Iran, to obtain citizenship, you first need a Birth Certificate.

    f.The Iranian law states someone born in Iran who resides there for two years after turning 8 is eligible for citizenship. But the Iranian authorities are not following this law.

    g.He will be tortured and maybe killed or hanged if he returns to Iran.  This will happen because he has no Iranian identity. He left Iran illegally.  His ID card has expired and he will be questioned on return.  A person who leaves Iran illegally cannot return. He will be treated as a spy.

    h.He had no freedom to study in Iran.  He and his family could attend health clinics but had to pay a fee. There is no health insurance for them.  He received a basic education but he was not allowed to go to university.

    i.He worked illegally in Iran.  He had to borrow from friends and others to pay for his travel to Australia.

    j.He left Iran on an Iraqi passport in his own name.  A friend made the passport for him,  it was not a legitimate passport.  He told a friend he wanted a passport and asked how it worked.  The friend gave him a phone number and told the applicant that person would make a passport for him. He called the person who told the applicant to provide a photo and details and he would make the applicant a passport. It cost [amount] Iranian tomans[2]. The applicant borrowed the money from friends and relatives including an uncle in [Country]. The RRT Member put to the applicant that the penalty for departing Iran illegally is two to six months’ imprisonment or a fine up to 20,000 rials.  The applicant did not provide a response.

    k.The applicant did not have freedom  to travel to different cities in Iran. To get to Tehran to depart Iran, he had to travel discreetly in an Iranian citizen’s car.  They were not free to live in Iran.

    Written Submission, 13 November 2019

    [2] Equivalent to AUD$[amount] as at 12 February 2020.

1. On 13 November 2019 the applicant informed the Tribunal that he has married an Australian citizen and that they have two children together. He attached the following document copies:

   i.Commonwealth of Australia Certificate of Marriage between the applicant and [Ms A], dated [February] 2014.

   ii.   Australian Citizenship Certificate for [Ms A], dated [June] 2010.

   iii.  NSW Marriage Certificate, for the marriage of the applicant and [Ms A], dated [March] 2014.

   iv.  NSW Birth Certificate for [Child 1], born to the applicant and [Ms A] on [date].

   v.   NSW Birth Certificate for [Child 2], born to the applicant and [Ms A] on [date].

   Tribunal Hearing, 3 December 2019

2. The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant confirmed that all the information in his Protection visa application is correct.

   b.He was born in Yazd city in Iran. He has not lived anywhere else in Iran.

   c.His father could not work because he broke his [body part] in a [vehicle] accident. He received medical treatment for his broken [body part] with private financial support.  Other people helped pay the costs. His father has platinum inside his [body part] and cannot [it] properly.  He was not properly cured or treated because an ordinary doctor treated him, not a specialist.

   d.The applicant could only work one to two days a week in Iran.

   e.The applicant’s mother, father, [number] sisters and one brother are living in Iran.  The applicant’s brother works one to two days a week to support the family to provide food. He works in a company during the night on [machines].  [An] uncle in [Country] also sometimes helps them financially. The applicant’s family do not own their home in Iran.

   f.The applicant’s sisters are not married. They cannot study or work so they stay at home.  They can’t marry because they have no birth certificate or ID.  Because men in their community don’t have proper jobs they can’t afford to marry. The applicant’s brother cannot marry.

   g.The applicant’s family do not have any problems with the Iranian authorities. They have White Cards as identification.  The applicant also had a White Card in Iran but it has expired by now.  The White Card shows your name and family name and that you are allowed to live in Iran to some extent, but it gives no other rights.

   h.Iranians do not want people like the applicant’s family in Iran. They say they are not Iranian.

   i.The applicant identifies as Arab.  He speaks Arabic as well as Farsi.  He can speak a little Faili Kurd.  His parents did not talk much in the Faili Kurd language. They mainly spoke Arabic. His mother tells him they are Arab Kurds.

   j.The applicant’s uncle in [Country] has a visa and has been there a long time, maybe 15 years.  Before that he lived in Iran. He was born in Iraq.

   k.The applicant has never been to Iraq.  He has never lived in any other country except Iran.  His parents have never returned to Iraq.  His brother has never been to Iraq.

   l.The applicant did not do military service in Iran. He was not allowed to.

   m.He departed Iran on a fake passport. He asked a few friends in Iran and someone told him he could help the applicant. The applicant paid him [amount] tomans and gave him the applicant’s name and a photograph. An Iraqi passport was then made for the applicant.

   n.The applicant cannot return to Iran and live there as he did before because his White Card has now expired.  The authorities will not issue him another one. The applicant has no documents so there is a chance he will go to prison and be tortured, and most likely die. He thinks he will be tortured in prison because he has no ID and is not Iranian.

   o.The applicant cannot obtain Iraqi nationality.  He would need an Iraqi document for that. His parents don’t have any because they were kicked out of Iraq under Saddam Hussein.  Their few remaining relatives in Iraq are all dead now and his family no longer know anyone in Iraq.

   p.The applicant’s wife was born in Qom in Iran. She is Shia Muslim.  She is a citizen of Australia.  Her father came to Australia and obtained permanent residence and then his family joined him.  Her father had problems in Iran and cannot live there. He could not get identity documents. He was born in Iraq and the applicant thinks he is Faili Kurd.

   Post-Hearing Submission

3. On 6 January 2020 the applicant provided a further written submission to the Tribunal. The following is a summary of the information contained in the submission:

   -As a stateless person, the applicant was prevented from working legally while in Iran. He worked illegally in a highly insecure arrangement where he was constantly at risk of losing his job.  The workplace was audited weekly and he would be immediately fired if discovered by the auditor. If returned to Iran, there is no guarantee the applicant would be able to find similar employment. There is a strong risk that the applicant will experience persistent unemployment due to his identity as a Faili Kurd.

   -The applicant is in need of protection due to the persecution that threatened his capacity to subsist, not because of a mere desire to improve his financial position. The economic hardship experienced by the applicant is due to persecution on the basis of his identity as a Faili Kurd.

   -The applicant’s ability to organise a large sum of money to engage a smuggler does not lead to the necessary conclusion that the applicant has never experienced significant economic hardship that threatens his capacity to subsist. The applicant gave evidence indicating that the funds were borrowed from family and friends. It may be possible for a person of limited means to obtain such a sum by seeking contributions from many different individuals.

   -Not only did the applicant seek asylum, he also did so on a forged passport. This is a factor that could bring him to the adverse attention of Iranian authorities. There is evidence to suggest that Faili Kurds may be at risk of harassment and mistreatment from the Iranian religious police, the Basij. Based on these two factors, it is our respectful submission that despite his lack of a political profile, there is a risk that the applicant will be subject to persecution above and beyond laws of general application if he is returned to Iran.

   -The applicant attached copies of the following documents:

   ·The 2011 USDOS Country Reports on Human Rights Practices – Iran;

   ·A March 2013 article from [a] Refugee Support Group, ‘Faili Kurds and the Basij’;

   ·The [Country] travel document belonging to the applicant's [uncle].

   Country Information

4. DFAT’s latest County Information Report on Iran, published in June 2018, contains the following:

   Faili Kurds

   The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a subgroup of the larger Kurdish population. They originate from the Zagros Mountains which straddle the Iran-Iraq border, and many have family members on either side of the border. Faili Kurds in Iran typically reside either close to the Iraqi border, including Khuzestan, Lorestan, Kermanshah, and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most are Shi’a), location, and distinctive dialect. Three main groups of Faili Kurds live in Iran: Iranian citizens, those of Iraqi origin who are registered refugees, and those of Iraqi origin who are not registered refugees. Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available.

   Upon seizing power in the 1960s, the Ba’athist government in Iraq adopted several policies with the effect of excluding Faili Kurds, most notably Decree No. 666 (1980) that cancelled the Iraqi citizenship of all Iraqis of ‘foreign origin’. Under the Decree, authorities seized the properties and documentation of Faili Kurds, and eventually expelled them by force from Iraq. The expulsion of Faili Kurds intensified during the Iran-Iraq War: some estimates of the numbers of Faili Kurds who crossed into Iran between the late 1970s and 1988 range up to 250,000 (although this estimate is very much at the high end). Iran recognised many (but not all) Faili Kurds as refugees. The number of those remaining in Iran is unclear. Many returned to Iraq after the fall of Saddam Hussein in 2003: UNHCR reported in 2008 that 7,000 registered Faili Kurds remained in Iran. Reports suggest that many Faili Kurds of Iraqi origin have applied for Iranian citizenship. However, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved – this is also true for naturalisation applications for nationality from other groups, including those who have married Iranians or been in-country for generations. Others have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian nationality. DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.

   …

   Detention and Prison

   Article 39 of the Constitution states that all affronts to the dignity and repute of persons arrested, detained, imprisoned or banished in accordance with the law are forbidden and liable to punishment. The Prisons Organisation is responsible for the administration of prisons, while the judiciary is the responsible ministry. According to the Institute of Criminal Policy Research’s World Prison Brief, as of December 2014 (most recent figures available) Iran had a total prison population of 225,600 held in 253 institutions nationwide. While this number represented an occupancy level of 161 per cent of the prison system’s official capacity, it did represent a reduction from an estimated prison population of 250,000 in 2011. Approximately a quarter of the December 2014 prison population were pre-trial or remand prisoners, while female prisoners accounted for 3.1 per cent of the total population.

   Human rights observers report that Iranian prisons are overcrowded, with many prisoners forced to sleep on floors, in hallways, or in prison yards. Authorities often deny prisoners medical treatment for pre-existing conditions, injuries suffered at the hands of prison authorities or fellow prisoners, and for illnesses caused by poor sanitary conditions. Prisons are not equipped with adequate medical facilities. Pre-trial detainees are occasionally held with convicted prisoners, juvenile offenders held with adult offenders, and female prisoners in male prisons. …  Authorities often arbitrarily revoke privileges such as access to visitors, telephone contact, and other correspondence.

   DFAT understands that the granting of rights to prisoners is highly variable and depends on the individual circumstances of the prisoner, including their category and location. Official channels exist for prisoners to submit complaints to judicial authorities, but they often face censorship and retribution for doing so. While the government does not permit independent monitoring of prison conditions, it has occasionally permitted visits by foreign delegations. In July 2017, around 50 Tehran-based diplomats visited Evin Prison (one of the country’s primary detention facilities) at the invitation of the Iranian Human Rights Council. DFAT assesses that such visits are of limited value in providing an accurate picture of conditions within Iranian prisons.

   …

   Torture

   Iran is not a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, Article 38 of the Constitution prohibits all forms of torture for the purpose of extracting confession or acquiring information. Article 169 of the 2013 Penal Code states that a confession obtained under coercion, force, torture, or mental and physical abuses, shall not be given any validity and weight.

   Despite these legal protections, human rights organisations report that torture and other ill-treatment of detainees remains common in Iranian detention facilities, especially as a means to force confessions during interrogation. International sources report that commonly reported methods of torture and abuse include prolonged solitary confinement, threats of execution or rape, forced virginity tests, sexual humiliation, sleep deprivation, electroshock, burnings, the use of pressure positions, severe and repeated beatings, and the denial of medical care.

   Although the 2013 Penal Code prohibits the admission into evidence of confessions obtained under torture, it does not set out any procedure for judges and prosecutors to investigate allegations of torture and ensure that confessions are voluntary. Human rights organisations have reported that authorities have systematically failed to investigate allegations of torture and other ill-treatment, and have sometimes threatened to subject complainants to further torture and long sentences. Amnesty International has reported that judges continue to admit confessions obtained under torture as evidence against defendants. Authorities did not conduct an independent investigation into the death of a detainee who died in a Tehran police station in June 2016 from injuries that his family claimed were inflicted during torture.

   …

   Conditions for Returnees

   Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

   The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.

   According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.

5. DFAT’s 2014 Thematic Report, ‘Faili Kurds in Iraq and Iran’, 3 December 2014, states:

   2.16 The number of registered Faili Kurd refugees currently living in Iran is difficult to determine with any accuracy. The most recent figures released by Iran’s Bureau of Alien and Foreign Immigrants’ Affairs (BAFIA), dating from 2012, indicate there are 43,000 Iraqi refugees in Iran. This figure includes Arabs, Kurds and Faili Kurds.

   2.17 It is likely that the majority of Faili Kurd refugees in Iran are registered as refugees. In February 2011, the UNHCR told DFAT it was aware of approximately 5700 registered Faili Kurds. By 2010, approximately 3500 Iraqi refugees in Iran had already been repatriated and many were seeking documentation proving their Iraqi origins with a view to repatriation.

   2.18 A 2013 report from the Institute for International Law and Human Rights states that (registered) Faili Kurds in Iran inhabit camps near Tehran and in Qom, Yazd, Ilam, Kermanshah, Isfahan and Ahwaz. That report suggests that at least 1500 registered Faili Kurd refugees remain in Iran. While credible, DFAT is unable to verify the information in that report.

   …

   2.21 Some Faili Kurds are unable to register as refugees because they reside in ‘no go’ areas; because they have not complied with the terms of their prior registration; because they missed the annual re-registration deadline and their amayesh (refugee registration) cards has expired; or because they exited Iran, then returned.

   …

   3.6 Following discussions with a range of credible non-government sources, DFAT is not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. Contacts are not aware of Faili Kurds not approaching Iranian authorities due to fear of mistreatment, although they were not prepared to rule this out.

   3.7 DFAT has spoken with credible contacts, including NGOs, in regards to the allegations that Faili Kurds face harassment on the basis of their former Iraqi citizenship and/or their statelessness. Access to information on this issue remains difficult. However, DFAT has not seen evidence of widespread official discrimination or harassment.

   3.8 Based on the opinions of credible contacts, DFAT considers registered Faili Kurd refugees might face some restrictions on their movement in the country, and while they may receive access to healthcare, education and state benefits, it is possible that such access is at a level lower than that offered to Iranian citizens.

   3.9 A wide range of sources have told DFAT that Iraqi refugees, including Faili Kurds, generally receive better treatment in Iran than Afghan refugees, because Iranian authorities accept that the future of many Iraqi refugees lies in Iran. DFAT assesses as credible reports that Iraqi refugees are often better integrated than other refugees in Iran, because they are often of the same ethnicity as Iranians in the province in which they are hosted.

   …

   Rights to Citizenship
   Iraq
   3.10 Faili Kurds have been returning to Iraq since 2003 (some also returned to Iraqi Kurdistan since the region achieved de facto autonomy in 1991). Many have since been able to reclaim their Iraqi citizenship. Since 2006, the Iraqi Government in Iraq has actively encouraged Faili Kurds to return and reclaim their citizenship.

   3.11 A legal framework is now in place in Iraq for Faili Kurds to reclaim their citizenship. Article 18 of the 2005 Iraqi Constitution provides that anyone born to an Iraqi father or Iraqi mother shall be considered an Iraqi. It further provides that anyone who has had their Iraqi citizenship withdrawn has the right to demand its reinstatement. The Iraqi Nationality Law of 2006 provides for the restoration of citizenship to Iraqis whose citizenship was revoked.

   3.12 Faili Kurd representatives told DFAT in early 2014 that officials are now generally sympathetic to their claims for citizenship, and that in cases where all the necessary documentation was held, any Faili Kurd who wanted to could regain citizenship. Relevant international organisations have also told DFAT that they assess that it has become easier for Faili Kurds to re-establish their Iraqi citizenship since 2011.

   3.13 According to a credible NGO report (Institute for International Law and Human Rights, ‘Iraq’s Minorities and Other Vulnerable Groups’, May 2013), Iraq’s Ministry of Human Rights reports that 97 per cent of ‘denaturalised’ Faili Kurds had had their citizenship restored, as of May 2013. However, this claim has not been substantiated by the release of data and is difficult to verify.

   Process to regain Iraqi citizenship
   3.14 The process of regaining Iraqi citizenship varies according to the nature and amount of identification that the person and their family has. If a Faili Kurd or a family member (father, mother, brother, sister, or cousin) has an Iraqi identification card, including one from the time of the previous regime, the Nationality Directorate at their registered place of residence can issue their Nationality Certificate.

   3.15 The Ministry of Migration and Displacement has advised that an applicant would also need a ‘Certificate of Residency’ confirming residency in Iraq. Other Iraqi documentation from the time of the previous regime would also assist. In some cases, nationality documentation from the previous regime is referred to as an “Ottoman certificate”. The applicant normally needs to appear in person. However, there is no general requirement to go to Baghdad to secure the Certificate of Residency, unless that is their registered place of residence.

   3.16 If the applicant, or a family member, does not have an Iraqi identification card, then they need to apply to the National Directorate of Nationality in Baghdad for a Nationality Certificate. An applicant’s claim to be originally from a certain area of Iraq would be cross-referenced against local records.

   3.17 DFAT was told by Faili Kurd representatives that even in cases where the applicants had no identification and local records had been destroyed, credible local witnesses could attest to the applicant’s provenance, and citizenship documentation could be restored on that basis. Affidavits or testimony from the applicant’s tribal sheikh, village mukhtar and four other witnesses would normally be sufficient. The testimony of the witnesses can be taken in a local court and the records of the testimony transferred to Baghdad.

   3.18 In order to reclaim Iraqi citizenship, a representative of the family (normally the father or mother) would need to travel to Iraq. The individual applicant must go in person to pick up the Nationality Certificate itself in Baghdad. This can occur at the end of the process.

   3.19 The Iraqi Embassy in Iran can re-confer Iraqi citizenship on Faili Kurds living in Iran, but this is currently a difficult and lengthy process, which succeeds only in some cases. To prove Iraqi citizenship, Faili Kurds need to present either a citizenship certificate or identity card. This then needs to be cross-referenced with the registry inside Iraq to ensure the document’s authenticity.

   3.20 Overall, DFAT assesses that reclaiming Iraqi citizenship is possible for the majority of Faili Kurds. In practice, those who would face difficulty reclaiming Iraqi citizenship are a limited subset of Faili Kurds. These might include children born in Iran to Faili Kurd refugee parents, whose parents are now deceased. Reclaiming citizenship presents similar difficulties for the children of Faili Kurds who went missing under the former Iraqi regime.

   Iran
   3.21 Iranian authorities have significantly improved processing of Faili Kurds’ claims to Iranian citizenship in recent years, including by providing low-key processes taking place through the court system. In 2014, a slow but functioning naturalisation process is in place in Iran for Faili Kurds, however the exact terms and conditions for eligibility for that process was unavailable at the time of writing. DFAT has also been told that Iranian authorities are more tolerant of Iraqi refugees than they are of Afghan refugees, and this may impact on citizenship determinations.

   3.22 An application for Iranian citizenship must be lodged in Iran. Applications for Iranian citizenship on the basis of marriage to an Iranian national are made at the Office of Immigrants, BAFIA. There are multiple offices in Iran.

   3.23 As attendance at a government office is required, officially recording marriages might be problematic if the husband is avoiding Iranian authorities. This could be the case if the husband is wanted for criminal or political activities, or has failed to complete compulsory military service.

   Citizenship through paternal descent
   3.24 In general, a child born to an Iranian father acquires citizenship at birth, regardless of where the child is born. In practice, the children of Faili Kurd mothers and Iranian fathers can acquire Iranian citizenship.

   3.25 DFAT has previously been advised that Faili Kurds who can prove Iranian ancestry (through the paternal line) would be eligible for Iranian citizenship. However, credible contacts assess that only a very small number of Iraqi refugees would able to establish Iranian ancestry. In 2010, DFAT was told that documents other than official identity documents would be considered by Iranian authorities in decisions on citizenship applications, but that it would be extremely hard to establish Iranian ancestry using these documents. While some Faili Kurds might have Iranian ancestry, if their ancestors did not register with Iranian authorities at the time, establishing this ancestry would be difficult, if not impossible.

   Citizenship through maternal descent
   3.26 A constitutional amendment, passed on 21 September 2006, goes some way towards providing for the children of Iranian mothers to be able to acquire citizenship. It provides that:
   “Children who are the result of marriage between foreign men and Iranian women, who
   have been born in Iran, or are born in Iran within one year from the date of the
   ratification of this law, will be able to apply for Iranian citizenship when they reach the
   full age of 18. These persons will be accepted as Iranian citizens if they lack criminal
   records or security violation backgrounds and renounce their non-Iranian citizenship”.

   3.27 In practice, according to a credible 2014 report (Dr Jason Tucker, ‘Exploring Statelessness in Iran:

   Gaps in the Nationality Law, Populations of Concern and Areas for Future Research’, Tilburg University, 2014), the ability of children born to Iranian mothers and Faili Kurd fathers to acquire citizenship remains limited by the requirement for proof that the child was born in Iran; a marriage certificate between the parents; proof of the father’s legal residence in Iran, and proof of renunciation of non-Iranian identity.

   However, DFAT is unable to confirm the extent to which these requirements prevent the children of Iranian mothers and Faili Kurd fathers from acquiring citizenship.

   Citizenship by marriage
   3.28 DFAT has previously been advised that an applicant for Iranian citizenship must have legally resided in Iran for an uninterrupted period of five years; must be in Iran; and must either be highly qualified or have sufficient capital to invest in and run a business in Iran. Registered refugees normally do not meet the residency requirements, even if they have lived in Iran for over five years. In general, any non-Iranian woman who marries an Iranian citizen assumes the husband’s citizenship automatically. This rule applies regardless of the woman’s nationality, and would apply to stateless persons and those without documents. DFAT contacts are unaware of any exceptions. DFAT is not aware of any Faili Kurd women having difficulty
   obtaining Iranian citizenship where their husband is an Iranian national.

   3.29 Credible sources report that a non-Iranian man does not assume Iranian nationality on marriage to  an Iranian woman. However, a non-Iranian man married to an Iranian woman can apply for facilitated naturalisation if children result from the marriage.

   Citizenship by other means
   3.30 According to a credible report, Iranian citizenship can also be granted to abandoned infants, and to foreign parents, one of whom was born in Iran.

   …

   3.36 Amayesh cards are not issued to Faili Kurds specifically, but to Iraqi refugees regardless of their ethnic identity. Generally, amayesh cards expire annually. The annual registration fee for an amayesh card varies depending on location and is paid per family member. It generally ranges from USD 80 to USD 120. However, vulnerable families are exempt from paying the fee. Part of the fee goes to the local municipality. Cards are confiscated from card-holders who engage in illegal activities.

   3.37 … Officially, expired cards cannot be replaced, but DFAT contacts have said government officials might show some leniency in individual cases.

   3.38 Any individual holding an expired card is considered by Iranian authorities to be an irregular migrant. Officially, an unregistered Faili Kurd would be deported if detected, although in practice this rarely occurs. Post contacts are not aware of cases where unregistered Faili Kurds have been deported to Iraq, and are not able to provide figures on deportations.

   3.39 In almost all cases Iranian authorities will issue an amayesh card to a child born to an Iraqi refugee father who has a valid amayesh card. Difficulties might arise where the father has failed to comply with the regulations attached to his amayesh card. Examples include failure to pay municipal taxes and criminal conduct.

   …

   3.40 All children born in hospital in Iran should receive an official birth record. This would normally state the date, time, place and the parents’ details. However, significant variation is possible. This does not automatically establish any citizenship rights for the child.

   3.41 An official marriage certificate—not a religious document—and Iranian citizenship are required to register the birth of a child and receive an Iranian birth certificate. A birth certificate would not be issued with only the father’s name recorded, unless the mother was deceased and a death certificate presented. An unofficial hospital certificate recording the birth is usually provided in other cases.

   3.42 Registered Faili Kurds are able to record their marriages, including on their amayesh card, which shows them as a member of a household. Unregistered Faili Kurds could enter into religious marriages, but without registering as refugees with Iranian authorities they would not be able to record the marriage officially.

   …

   3.44 A registered Faili Kurd woman could lose her refugee registration and associated rights if she officially recorded her marriage to an unregistered refugee. For this reason some registered women avoid officially recording their marriage.

   …

   3.54 Faili Kurds who are registered as refugees in Iran have some access to healthcare, education and state benefits. DFAT is aware of reports that some Faili Kurds have had difficulty accessing their entitlements and considers that, particularly in rural areas, this is likely due to intense competition for limited  resources as opposed to an official policy of discrimination. However, it is difficult to rule out individual cases of discrimination in regard to accessing entitlements.

   3.55 While education is accessible for registered refugees—and also theoretically for the children of irregular migrants—schooling is in Farsi, which may be a barrier for non-Farsi speakers.

   3.56 In general, registered refugees can access hospitals, although because of an Iranian Government health insurance scheme that is not open to refugees, costs might be higher for refugees. Refugees cannot rent property in their own names, but can rent through an Iranian. This relationship can be exploitative.

   3.57 Unregistered refugees and those without documents do not generally enjoy access to services, although access to education for children is theoretically possible because of an Iranian Government policy allowing all children access to education. In practice, undocumented children usually miss out on available places, because Iranian citizens and documented refugees are prioritised. In some cases, a hospital birth record and separate vaccination book may be sufficient to secure schooling for a child. Also, attendance at school risks bringing undocumented family members to the attention of Iranian authorities.

   3.58 Normally, identity documents would be required to buy a house, car, mobile phone or establish a utilities account. A legally recognised lease would also require identification, but it is possible that private, undocumented arrangements could be made between a lessor and lessee that would avoid the requirement to provide identification. Accessing healthcare services without identification is possible, but requires payment without drawing on health insurance. Failis without identification would not normally be able to access the formal education system.

   …

   3.63 Faili Kurds registered as refugees have no automatic right to work. Registered refugees in Iran can apply for work permits, but these are subject to conditions and an application fee (in 2014 the cost of a work permit was reportedly similar to that of a refugee registration card, i.e. USD 80 to USD 120). Work permits are generally limited to a small number of work categories, depending on the origin of the refugee.

   3.64 Formally, unregistered refugees in Iran, of whatever origin, have no right to work. It is unlikely that a stateless Faili Kurd could apply for a work permit.

   3.65 DFAT has been told that in practice, many Faili Kurds in Iran—both registered and unregistered—have informal access to employment. This is normally tolerated by authorities. Some Faili Kurds are self-employed while others might find Iranian employers prepared to disregard the law. DFAT has been told that Faili Kurds are frequently employed in low-paying manual labour.

   3.66 DFAT has been told that pay and working conditions for Faili Kurd refugees are often significantly worse than for Iranians doing the same work. However, in Ilam and Kermanshah provinces, where locals speak the same dialect as Faili Kurds, there is considerable sympathy for Faili Kurds so working conditions might be better there than in other parts of Iran. Sympathy from low-level local officials such as policemen might also lead to a lower level of official attention in those provinces. …

   4.4 DFAT has spoken to a range of credible contacts in relation to the societal treatment of Faili Kurds. Contacts have not reported instances of Faili Kurds being targeted for extortion or being subject to harassment, detention or physical assault. However, contacts were not prepared to rule out the possibility of this occurring to individual Faili Kurds, due to their vulnerability as refugees and their Kurdish identity.

   4.5 On this basis, DFAT assesses that this type of societal discrimination against Faili Kurds is not widespread, but cannot be ruled out in individual cases. …

   Treatment by Security Services
   5.8 DFAT cannot make a definitive assessment in regards to treatment of Faili Kurds by the security services. It is possible that individual members of the Basij discriminate against ethnic and religious minorities, including Faili Kurds. The Basij, particularly in rural areas, often receive low levels of training and might not have clearly defined roles or objectives, leading to an element of unpredictably in behaviour. The Basij and Iranian Revolutionary Guard Corp have some members who are ethnic minorities, including ethnic Kurds.

   5.9 In Tehran,police occasionally conduct inspections of cars at night. The Basij also undertake patrols, also usually late at night. Either may include checks of identity cards. Inspections are infrequent and are not a normal part of everyday life. However, the frequency of inspections fluctuates and the presence of security forces on the streets varies. Inspections and identification checks would normally be less frequent in small villages.

   5.10 The Iranian Government has been engaged in a low-level insurgency with Kurdish militias in border areas between Iran and Iraq. As a consequence, Kurds and those in Kurdish areas might face harassment or additional attention from police and military forces. However, in general Kurds in Ilam and Kermanshah are Shia, so would normally face less challenges in interacting with the Government than other (Sunni) Kurds. Incidents between Government forces and Kurdish militia in Kermanshah have reported been infrequent in recent years.

   …

   5.15 DFAT assesses that Faili Kurds who are unregistered refugees in Iran would face significant difficulty relocating internally. Without documentation, their access to employment, accommodation and government services is likely to be restricted.

1. In its Country Information Report for Iran, dated 29 November 2013, DFAT stated that:

   The Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means. Some Faili Kurds have been given laissez-passer documents by Iraq, and are allowed to travel to and return from Iran.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant claims to fear harm in Iran as a stateless Faili Kurd who has sought asylum in a western country.

   Credibility

3. The applicant presented a coherent, measured and straightforward account of his and his family’s experiences in Iran. He presented this information without seeming to exaggerate or fabricate aspects of it, despite opportunities to do so.

4. The Tribunal accepts the applicant’s description of his and his family’s lives in Iran.

   Faili Kurd, born in Iran to Iraqi refugee parents in Iran

5. The applicant has consistently maintained that he is Faili Kurd, born in Iran, and that his parents were Faili Kurds expelled from Iraq under the Saddam Hussein regime. This has been accepted by both the Department and the former RRT.

6. There is no evidence or indication that the applicant is not a Faili Kurd person who was born in Iran to Faili Kurd parents, who were in Iran as refugees from Iraq.

7. He has submitted copies of his and family members’ Amayesh cards which acknowledge their status as resident in Iran on the basis of being registered refugees from Iraq.

8. On the basis of the evidence before it the Tribunal accepts the applicant is Faili Kurd, born in Iran and that he lived there with his parents as registered refugees from Iraq. 

   Statelessness

9. The applicant claims he is stateless and that he is not a citizen of Iran, Iraq, or any other country.

   Iran

10. The applicant claims that he and his family lack the documentation required for him to obtain citizenship in Iran.  He also claims he has several times approached the Iranian authorities to try to obtain a Birth Certificate and been refused. There is no indication he is fabricating these aspects of his claim and he has consistently maintained them over a long application process.  His account accords with available country information.  The Tribunal therefore accepts that the applicant and his family do not possess the documentation that would facilitate obtaining Iranian citizenship and that the applicant’s attempts to obtain a required Birth Certificate have been unsuccessful.

11. The Tribunal accepts that the applicant cannot establish a required connection to Iran, through Iranian parentage or marriage to an Iranian citizen, to meet the requirements to obtain Iranian nationality.

12. The Tribunal accepts the information provided by DFAT that although there is a possibility for Faili Kurds to obtain Iranian citizenship, in practice this can be difficult and has no assured success.

13. The Tribunal considers that the applicant’s chances of obtaining Iranian citizenship are further diminished by his departure from Iran.

14. In view of the available country information and the applicant’s personal circumstances the Tribunal accepts that he does not have Iranian nationality and has little likelihood of obtaining it.

    Iraq

15. The Tribunal accepts that the applicant’s parents were expelled from Iraq and deprived of their Iraqi citizenship during Saddam Hussein’s reign.

16. The information provided in DFAT’s report states there are mechanisms for people deprived of Iraqi citizenship under the former regime, to reacquire it.  However this requires Iraqi documents and can be a lengthy process.  Again, the outcome is not assured.

17. In the absence of any indication to the contrary the Tribunal gives the applicant the benefit of the doubt that he and his family lack Iraqi identity documentation and do not have connections in Iraq to facilitate a citizenship application.

18. The Tribunal therefore accepts that the applicant does not have Iraqi citizenship and cannot automatically obtain it.

    Country of Reference

19. The Tribunal has accepted that the applicant does not have Iranian nationality or Iraqi nationality.  There is no indication he possesses any other nationality. The Tribunal therefore finds that the applicant is stateless.

20. The applicant was born and lived all his life in Iran before he travelled to Australia. The Tribunal finds his country of former habitual residence is Iran.

    Fear of Harm in Iran

21. It is highly likely that the applicant would be denied entry to Iran.  In such circumstances the Tribunal considers the hypothetical possibility of what would happen if he returns to his country of former habitual residence, Iran.[3]

    [3] SZSPX v MIMAC [2013] FCCA 1715 at [42], [69] – [70].

22. It is also well established that a person is not entitled to refugee status merely because he or she is stateless and unable to return to his or her country of former habitual residence.  A stateless person must have a well-founded fear of being persecuted for a Convention reason.[4]

    [4]  See MIMA v Savvin (2000) 98 FCR 168, per the Full Federal Court. See also Rishmawi v MIMA (1997) 77 FCR 421, Diatlov v MIMA (1999) 167 ALR 313 and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012).

23. The Tribunal accepts that the applicant possessed an Amayesh card in Iran which allowed him to legally reside there within a specified locale. the Tribunal accepts the country information that the Amayesh card has to be renewed annually.  As the applicant has been outside of Iran for well more than one year the Tribunal accepts his Amayesh card has expired. His account accords with the available country information from DFAT.  This information also confirms that having departed Iran and being no longer in possession of a valid Amayesh card he will not be automatically re-issued an Amayesh card on return to Iran.  The Tribunal  therefore accepts the applicant has lost his right to lawful residency in Iran.

24. The applicant would be returning to Iran as undocumented, unregistered stateless Faili Kurd.  The Tribunal therefore accepts that his situation there will be markedly different from the time he lived there as a registered refugee.

25. Based upon the available country information, set out above, the Tribunal finds that the applicant would now face the following situation in Iran:

    -Denial of entry into Iran.

    -Denial of right to reside in Iran.

    -Denial of right to legally work.

    -Denial of freedom of movement.

    -Denial of access to free health care.

26. DFAT’s reports also referenced the possibility of an increased risk of mistreatment by the security forces for a person belonging to a minority, such as Faili Kurds, and to “individual Faili Kurds due to their vulnerability as refugees and their Kurdish identity”. The reports point also to the possibility of the Basij, a pervasive locally based arm of the security, harassing and mistreating a minority such as Faili Kurds.  DFAT also does not rule out the possibility of Faili Kurds being targeted for extortion or being subject to harassment, detention or physical assault, due to their vulnerability as refugees and their Kurdish identity. 

27. The Tribunal notes the applicant’s evidence that he had no such problems with the authorities when he lived in Iran. He spoke of his Amayesh card giving him the right to be in Iran and thereby largely protecting him from adverse confrontations with the authorities, particularly given his low-key and mostly homebound lifestyle.  He further gave evidence of working infrequently and at night time to avoid contact with the authorities. 

28. If the applicant returns to Iran he will no longer have the Amayesh card to legitimise his right of residence and afford him some protection from scrutiny. The Tribunal therefore considers there is a high likelihood of the applicant coming to the adverse attention of the security forces on return to Iran.  On the basis of the available country information the Tribunal is satisfied that in such circumstances, there is a real chance the applicant would face serious mistreatment at the hands of the security forces as an undocumented unregistered Faili Kurd refugee in Iran.

29. Without a legal right to enter, reside and work in Iran the Tribunal also accepts that there is a real chance the applicant would be arrested, detained and imprisoned on this basis if he did enter, reside or work in Iran.

30. The denial of entry, residence, employment, health care, freedom of movement, as well as the risk of arrest and detention for being ‘illegally’ present or working in Iran, are each ostensibly a result of laws of general application. They arguably can apply to any person who is considered an alien by Iran.

31. However the High Court in Chen Shi Hai v MIMA held that laws or policies which impact adversely upon a particular section of the population are not properly described as laws or policies of general application:

    Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, “black children”, as distinct from children generally - cannot properly be described in that way. … To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.[5]

    [5] Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19]-[21]. See also per Kirby J at [72] and Wang v MIMA (2000) 105 FCR 548 at [50]-[68].

32. Recently, the Federal Court in AJZ17 v MHA[6] held that a criminal law of general application may be implemented or enforced in a discriminatory way if it does not recognise, and therefore does not take account of, a relevant difference.  In that case the Court held that the Tribunal had erred in failing to give proper consideration to whether Kenyan criminal laws would be implemented or enforced in a discriminatory manner with respect to people with a mental illness. The Court held:

    … the Tribunal did not give proper consideration to whether the Kenyan criminal laws would be implemented or enforced in a discriminatory manner with respect to people with a mental illness.  As the passage from Applicant S makes clear, the fact that a law is of general application does not answer the question of whether or not it is discriminatory.  In the case of a criminal law of general application, the law may be implemented or enforced in a discriminatory way (in the sense explained by Gaudron J in Ibrahim) if it does not recognise and therefore does not take account of a relevant difference, such as mental illness.  Here, rather than asking whether the Kenyan criminal laws would be implemented or enforced in a discriminatory way, the Tribunal in effect assumed that because mental illness was not recognised, the law could not be discriminatory.  Thus, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination.  As indicated …above, this was an essential and preliminary step in determining whether the treatment would constitute persecution for reasons of a ground referred to in s 5J(1)(a).[7]

    [6] AJZ17 v MHA [2019] FCA 1485 (Moshinsky J, 11 September 2019).

    [7]  AJZ17 v MHA [2019] FCA 1485 at [46].

33. The judgment in AJZ17 v MHA supports the contention that a law of general application can be considered to be implemented and enforced in a discriminatory way for the purposes of the refugee definition, if it does so in a manner that is not appropriate or adapted to a difference which can be characterised as a Convention ground attribute.

34. These judgments need to be applied in light of s.91R(1) of the Act, which requires persecution to involve systematic and discriminatory conduct and for the Convention ground to be essential and significant reason for the conduct.

35. In applying these judgments, the laws, arguably of general application in Iran, which deprive the applicant of the basic rights he would need to be able to subsist in Iran, may not be properly described as laws of general application in that they differentially impact upon the applicant as a stateless Faili Kurd, born in Iran, whose family continue to reside in Iran, returning as a now unregistered Faili Kurd refugee. The differential impact arises due to the applicant’s status as a stateless person with an inability to go to, enter and reside in another country; his almost life-long connection to Iran with Iran being his former home and the place where his family live; and his now unregistered and undocumented Faili Kurd refugee status. 

36. Further, the failure to treat the applicant differently, in a manner appropriate and adapted to his differences, would amount to the laws being implemented and enforced in a discriminatory manner with respect to his differences. The failure to appropriately adapt the laws amounts to systematic and discriminatory conduct. Somewhat cyclically, the essential and significant reason for the conduct is then the differences attaching to the applicant. 

37. In the Tribunal’s view, the failure to appropriately adapt the laws to a person with the applicant’s particularly vulnerable and exceptional characteristics is not treatment appropriate and adapted to achieving some legitimate object in Iran.

38. The Tribunal considers that stateless people, stateless Faili Kurds born in Iran, and unregistered Faili Kurd refugees are each particular social groups in Iran, in that they are cognisable groups and share a common characteristic which is not a fear of persecution.

39. The Tribunal further considers the denial of entry, residence, the right to legal employment, and the right to access free health care, as well the real chance of arrest, detention and imprisonment, amounts to serious harm.  This is because the denial of basic rights will severely threaten the applicant’s ability to subsist and to live a tolerable life, and arrest, detention and imprisonment will be a threat to his liberty.

40. In accordance with and this reasoning and application of the above Court judgments, the Tribunal is satisfied that the applicant meets the refugee criteria in that he has a well-founded fear of persecution in Iran for reason of his membership of a particular social group. The real chance of persecution exists throughout Iran so that relocation would not assist him.  As the state is the source of harm he would not be able to access protection in Iran.

41. The real chance of being harassed and seriously mistreated by the security forces in Iran, because the applicant is now an unregistered Faili Kurd refugee, is obviously not the result of any law of general application. The Tribunal is satisfied this threat amounts to serious harm which involves systematic and discriminatory conduct, in that it will be intentionally and selectively done to the applicant, for the essential and significant reason of the applicant’s membership of a particular social group, namely unregistered Faili Kurd refugees in Iran. The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution in Iran for this reason.

42. The Tribunal also considers that the available evidence demonstrates there is a real risk the applicant will suffer significant harm on return to Iran. This is due to the likelihood of the applicant’s arrest, detention and imprisonment and the available country information regarding the abuses of prisoners with reports of torture and other ill-treatment of detainees remaining common in Iran.  However there is no need to determine whether or not the applicant meets the complementary protection criterion given the Tribunal’s finding he meets the refugee criterion.

43. There is no indication that the applicant has a right to enter and reside in any other country. On the basis of the information before it the Tribunal is satisfied he is not excluded from Australia’s protection by s.36(3) of the Act.

    Conclusion

44. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

45. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Melissa McAdam
    Member