1728183 (Refugee)

[2019] AATA 3962

1728183 (Refugee) [2019] AATA 3962 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728183

DIBP REFERENCE(S):  BCC2017/361742

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Brenton Illingworth

DATE:18 April 2019

PLACE OF DECISION:  Adelaide

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 April 2019 at 3:06pm

CATCHWORDS
REFUGEE – protection visa – stateless – Faili Kurds from Iran – false report of lost passport to police – passport proof of citizenship – internal travel document for non-citizens – false report made for the purpose of gaining replacement documentation – decision under review set aside – no jurisdiction with respect to other applicants

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140

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 on 10 November 2017 to cancel the Applicant’s Subclass 866 Protection (Class XA) visa granted under s.109 (1) of the Migration Act 1958 (“the Act”).

2. The delegate cancelled the visa on the basis that on 14 May 2014 the Applicant made a report to South Australian Police that on [date] April 2014 he lost his passport at the [Name] Shopping Centre, and accordingly he was not a stateless Faili Kurd who was without identification documents and who was the subject of discrimination and had no rights in Iran as claimed in his application for Protection Visa. That claim was fundamental to the determination that he was someone to whom Australia has protection obligations and which led to the grant of that visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purpose of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant ( the applicant). The other visas were automatically cancelled by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.The second applicant [Ms A] is the Applicant’s wife and the third applicant [B] who was born on [date] in Iran, is the Applicant’s [child]. They both had been granted Protection visas because they were each members of a family unit. Their visas were cancelled pursuant to S 140 (1) of the Act as a consequence of the Applicant’s visa being cancelled.

4. [In] November 2011 the Applicant, his wife and [child] together with other members of his wife’s family arrived on Christmas Island as Illegal Maritime Arrival’s claiming to be from Iran and seeking asylum in Australia. Those other family members were the second applicant’s [siblings] namely [C] and [D], her mother [Ms E] and grandmother [Ms F].

5. Each of the second applicant’s [siblings] and mother had been previously granted a Protection Visa and each had also made similar reports to South Australian police at or about the same time as the applicant that they had lost their respective passports.

6. The report by the applicant and the second applicant’s [siblings] and mother that they had lost their Iranian passports precipitated the process of cancellation of their respective protection visas during which they all claimed that they had in fact not lost a passport but had lost a barrage taraddod (Iranian intercity travel permit for non-citizens). Each said that they described the lost document to police as a passport because it was thought it would help police identify the document. The delegate did not accept at this claim.

7. The applicant’s visa and that of the second applicant’s [siblings] and mother were cancelled by a delegate of the Minister for Immigration and each had applied for a review of that decision. Their respective applications for review were listed to be heard concurrently on 21 June 2018 however the Applicant was unavailable to give evidence and his application did not proceed on that occasion. The other applications proceeded to hearing, and on 25 October 2018 the Tribunal set aside the decisions under review and substituted a decision not to cancel their Subclass 866 (Protection) visa.

8. The balance applications were listed before the Tribunal on 11 December 2018. The second and third applicants were excused from attendance.  The second applicant was pregnant and due to give birth in April 2019. A report from a medical practitioner recommended she not be required to attend the hearing as the stress may impact adversely upon her health and the pregnancy. The third applicant was a child aged approximately [number] years.

9. The Applicant appeared to give evidence and present arguments. The Tribunal received into evidence that evidence that was before the Tribunal and presented at the hearing in respect of the other applicant family members on 21 June 2018.

10. 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 who attended the Tribunal hearing.

11. Prior to the hearing the Tribunal was informed by correspondence dated 20 April 2018 that the migration agent had submitted an F0I request to the Department. As the applicant’s file contains certificates under s.438 of the Act certain folios were not provided. Internal review of the decision was sought which led to the Department setting aside the earlier position and partially releasing additional documents. This was not satisfactory to the applicant with regards to the release of documents and as such he sought review by the Office of the Australian Information Commissioner.

12. The Tribunal provided the certificates to the applicant prior to the hearing. The representative in correspondence dated 29 May 2018 argued that the certificates were defective in the reasons provided for nondisclosure.

13. At the hearing on 21 June 2018 the Tribunal went through with each applicant the validity of the 2 certificates and discussed them both with the applicants. Both certificates were referenced and dated the same day and the Tribunal distinguished them in the Department’s file. The certificate appearing as folio 56 in the Department’s file were found to be valid. Nevertheless, the Tribunal provided a summary of the documents to each applicant.

    The second certificate appearing at folio 55 was found by the Tribunal to be valid and explained that the documents behind this certificate were provided by South Australian police with a caveat;

    The disclosure of information is provided under the provisions of clause 4 (10) of Cabinets Information Privacy Principles Instruction (the Principles). The information collected from this correspondence, and any attached documents, may only be used within the scope of clause 4 (8) of the principles. South Australia Police advises all information contained in, and attached to, this correspondence is sensitive and must not be disclosed to any unauthorised person, including the individual to whom the information relates, unless required by, or under, any Act or law.

14. The applicant was advised in similar terms including that there were two topics of evidence that the Tribunal would be putting to him which was adverse material and in relation to which the Tribunal would be asking for comment, namely, the false report to the police and information relating to the travel movements of the second applicants mother.

15. Prior to the hearing of the applicants review the applicant lodged with the Tribunal a statutory declaration dated 6 November 2018 in which he acknowledged that he made a report of a lost passport to South Australian police which was untrue. He there said the purpose was to “try to obtain some form of documentation from the Iranian Embassy which I could use to become an Australian citizen.”

16. While withholding the police report, the Tribunal provided to the applicant the paragraph that was relevant to the applicant’s case, namely, the description of his lost passport as it was recorded by the police when the applicant made the report. The applicant confirmed that the report was false, that he did not, nor has he ever held a valid Iranian passport and the reason for making a false report was as indicated in his statutory declaration. He also acknowledged that insofar as he responded to the inquiry by the Department that he in fact lost a barrage taraddod and not a passport he was not truthful and could not explain why that information was provided.

17. The applicant said in evidence, that insofar as enquiries had been made with the Australian Embassy as to the requirements for obtaining a grant of Australian citizenship, he relied on enquiries made by his two [siblings]-in-law’s and from their enquiries there was a belief that identification documents were required in support of the application for citizenship. He had very limited ability to read and write in the English language and was not skilled at Internet enquiries on the computer. The decision to make false reports to the police was a decision made by the whole of the family because they were desperate to discard their title of stateless persons and had a strong desire to become Australian citizens. The applicant said he particularly wished for his [child] and now his future child to be known as Australian citizens and not state stateless persons.

18. Insofar as family members responded to inquiries by Department about the lost passport and referenced the barrage taraddod the applicant said this was also done on behalf of the family members by his [siblings]-in-law but he understood the response to the Department’s enquiry.

19. 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

20. 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.

21. 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.

22. 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.

    Relevant information pursuant to s.107 notice

23. 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(a) and s.101(b) which relevantly provides as follows:

    Section 101: Visa applications to be correct

    s101. 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.

24. The term ‘application form’ is defined in s.97 for the purposes of a s.109 cancellation, which states it as meaning: ‘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 s.46 allow to be used for making the application’.

25. [In] November 2011 the applicant arrived on Christmas Island as an irregular maritime arrival. He claimed to be an undocumented stateless Faili Kurd living in Iran.

26. The applicant made the following claims in the protection visa application form and an accompanying statutory declaration:

    ·     Your citizenship at birth: Stateless Iran.

    ·     ‘I am a stateless Faili Kurd’.

    ·     That he and his family have no documents, no rights or access to education or medical treatment as other Iranians

27. The applicant was found to be a person who engaged Australia’s protection obligations and was granted a Protection visa on 9 May 2012.

28. In July 2014 the applicant submitted a report to the South Australian Police claiming to have lost his Iranian passport. The relevant passage describing his the report is as follows:

    [In] April 2014, [the applicant] lost his passport at the [Name] shopping Centre, [Suburb]. Unable to locate the passport since.

    This information was conveyed to the Department and formed the basis for the decision to initiate cancellation.

29. The Department sent a Notice of Intention to Consider Cancellation (NOICC) by email on 17 August 2017. The NOICC provided a summary of answers the applicant had provided during the protection visa application process relating to his claimed statelessness. It then engaged with the SA Police report, noting country information that shows ‘Iranian passports are issued to nationals of Iran,’ and that the Iranian Embassy’s website provides information on how to apply for a replacement including listing a requirement to provide a copy of the Australian police report. It then explains that the information available indicates that the applicant did not hold the adverse profile claimed. As such the delegate explained that the applicant had not complied with s101(a) by not answering question 21 and s101(b), having provided incorrect information to questions 20, 22, 42, 43,44 and 67 of Form 866.

30. The Tribunal is satisfied that the delegate reached the necessary state of mind to issue the NOICC because the delegate expressly states that based upon the evidence available he has formed the view that he failed to answer question 21 on the Form 866C and incorrect information was provided.

31. The applicant submitted a response to the NOICC which he said was prepared with the assistance of his [siblings] in law. The response was in like terms to their response to their NOIC to which the Tribunal referred in decision dated 25 October 2018 and include the following claims:

    ·     he used a false passport to leave Iran.

    ·     When lodging the lost Iranian passport report with SA police he was referring to a barge taraddod issued to him by the Iranian authorities. He described the document as ‘a passport used to Faili Kurds to travel between the cities of Iran’.

    ·     He has never held a genuine document that entitles him to citizenship and furthermore a lost passport report is not required to obtain a new Iranian passport.

    ·     He is Ahl-i-Haqq Kurd and that his life was intolerable and difficult.

    ·     If he had a passport then he would have travelled to Iran a long time ago.

    ·     He thought it would help his Australian citizenship application if he could get some form of identity from the Iranian government.

    ·     Information from an Iranian government website explaining the purpose and process of obtaining a barge taraddod including that it is for people born in Afghanistan and Iraq.

    ·     A scanned example of a barge taraddod was provided.

32. Following this process the Department concluded that the applicant was in breach of s.101(a) and s101(b) and in particular that he was not stateless but a citizen of Iran and as a result the visa was cancelled under s.109 on 22 November 2017.

33. The Tribunal received a pre-hearing submission. Elements of the submission relevant to the  question of whether grounds for cancellation arise are summarised below:

    ·     The evidence before the delegate could not have led him to reach the required state of satisfaction as provided for by the Department’s Policy Advice Manual.

    ·     The applicant maintains that he provided correct information to the Department in the visa application.

34. At the hearing the Tribunal explained the obligation to provide to the applicant any adverse information made available to the Tribunal. In this regard the Tribunal provided information under s 424AA regarding the second applicant’s grandmother and her travels to Australia using a false passport. This adverse information was relevant to each applicant in the current application. The applicant said that he knew the person named [Ms F] who was the second applicant’s grandmother. He said that he came to know about 2 to 3 years ago that the grandmother had previously travelled to Australia using a false passport for the purpose of seeing her children. Those children were not known to the second applicant, her [siblings] or mother. He said that a dispute arose between [them]. He did not know what the dispute was about but that he believed it may be related to the fact of other unknown siblings. He has not seen the grandmother for 2 to 3 years and he and his family do not communicate with her. She is believed to reside in Queensland.

35. The Tribunal accepts the evidence of the applicant in relation to the grandmother. It accords with the evidence given in earlier proceedings by his [sibling]-in-law and mother-in-law.

36. At the hearing the Tribunal discussed with the applicant the police report he and each family member applicant made separately namely:

    ·     [Ms E] reported [in] May 2014 a lost passport inferring it may have been lost during moving houses.

    ·     [C] reported [in] July 2014 the loss of [the] passports in [Suburb] shopping centre.

    ·     [D] reported [in] July 2014 the loss of [the] passport in [Name] shopping centre.

    ·     [The applicant] reported [in] May 2014 a lost passport at the [Name] Shopping Centre.

37. Prior to the hearing and in the statutory declaration dated 6 November 2018 the applicant  corrected the record and said that he had not lost a passport and made a false report to the South Australian police to which the Tribunal has referred in paragraph 15 above.  He admitted that this was a joint family decision made in an attempt to obtain identity documents to assist in the application for citizenship. He said that it was hoped that the Iranian Embassy might have some record about their identity because of the forged passports the applicant and his family used to travel to Australia. He said that he did not receive a response from the Embassy.

    Was there non-compliance as described in the s.107 notice?

38. 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, namely that the applicant held an Iranian passport and therefore was an Iranian citizen and not a stateless person.

39. Section 108(b) requires the decision maker to decide whether there was non-compliance in the way described in the s.107 notice. The decision maker must make a positive finding that there was non-compliance, and only then does the power to cancel under s. 109 arise.

40. Considerable submissions were made by the applicant supporting his claim to be Kurdish. The Tribunal accepts this as fact. The Tribunal also notes that information from the Department of Foreign Affairs says that not all Faili Kurds are stateless.  As such being Kurdish does not shed additional light on whether the applicant provided incorrect information regarding his statelessness.

41. Central to the question of the applicant’s claims of statelessness is that he exited Iran on a forged passport and that the report of a lost passport to the South Australian police was false. The applicant and his family members provided context to the circumstances that brought them to Australia as stateless persons. The Tribunal will consider each of these elements separately.

1. Regarding his claim of having exited Iran on a forged passport, country information from periods close to the dates of the applicant’s exit from Iran states that that it is difficult to exit using a forged passport but possible by bribing officials.

   [T]he head of passport border control at Imam Khomeini Airport (IKA) Immigration Police had initially rejected the possibility of a person bribing their way through the airport, he did concede that “where a person does manage to leave Iran illegally this is not due to flaws within the computer system but rather a human error – i.e. a person has been bribed”.

   The source did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros. It was added that the source considered that the right connections were also important if one was to bribe one’s way out of the airport. When asked if an average Iranian could pay the necessary bribe, the employee commented that, “Everybody has connections in Iran”. The source indicated that many illegal Iranian migrants abroad have left Iran using original national passports but there were also examples of people having left on foreign forged passports.

2. The Tribunal finds having regard to the whole of the evidence that it may be equally possible that the forged passport was either a fraudulently obtained legitimate passport or a forged passport. Nonetheless the Tribunal accepts that the report to the police of a lost passport was a false report and the Tribunal also accepts that the applicant had no such passport in his position prior to making that false report.

3. The applicant provided explanation to the Tribunal why he made the false report and of his belief, based on information given to him by his [siblings] in law, that some document of identification was required to pursue an application for citizenship. The Tribunal accepts this was a genuinely his state of mind and that he relied on others because of his literacy difficulties and limited computer skills.

4. Further the applicant’s explanation for making the false report accorded with the evidence provided by the other family member applicants in the earlier hearing to which I have referred. The circumstances in which the various family members conspired not only to provide a false report to South Australian police but also to further lie in response to the NOIC are matters of concern to the Tribunal. Nonetheless, the Tribunal does not find that the information in the S.A. Police report with respect to the lost Iranian passport was in fact true as purported by the delegate, and accepts that claim of a lost passport, or as subsequently varied to lost barge taraddod, was false and made in the naive attempt to gain identity documents for the purposes of the Australian Citizenship application process.

5. In considering the country information, the applicant’s explanation and corroborating testimony from family members, the Tribunal does not accept on the face of the evidence that the applicant is an Iranian citizen. The Tribunal finds that the applicant is a stateless Faili Kurd. The Tribunal has considered whether there was non-compliance in the way described in the s107 notice namely non-compliance with s101(a) and s.101(b) of the Act, and, the Tribunal finds there has been no non-compliance in the manner described in the NOICC.

   DECISION

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

7. The Tribunal has no jurisdiction with respect to the other applicants.

   Brenton Illingworth
   Senior Member