1730857 (Refugee)

[2018] AATA 4870

1730857 (Refugee) [2018] AATA 4870 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730857

COUNTRY OF REFERENCE:                  Iran

MEMBERS:Brenton Illingworth (Presiding)

Denis Dragovic

DATE:25 October 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 25 October 2018 at 2:30pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – incorrect information – nationality – stateless – ethnicity – faili kurds – sale of children – applicant’s mother adopted – exited Iran on forged passport – misleading information to authorities – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 108, 109

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 to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted a visa on the accepted basis that she was in fear of persecution living as a stateless person and had no legal right to reside in her country of birth, Iran, and she feared arrest, torture and persecution in Iran.

3. Subsequent to being granted a protection visa the applicant reported to the [Australian] Police that she had lost her Iranian passport. The report made by the applicant described the document in a manner which the delegate found to reflect that of an Iranian passport. This precipitated the process of cancellation during which the applicant claimed that she had actually lost a barge taraddod (Iranian intercity travel permit for non-citizens) but described it as a passport to the police for the reason that she thought it would help them identify the document. The delegate did not accept this claim. The delegate determined that there was sufficient evidence to demonstrate the applicant was not a stateless person and was an Iranian citizen at the time of her visa application.

4. The applicant appeared before the Tribunal on 21 June 2018 together with her sister and mother in a combined hearing to give evidence and present arguments. The Tribunal also received oral evidence from her [husband].  

5. The applicant was represented in relation to the review by her registered migration agent.

6. Prior to the hearing the Tribunal was informed by correspondence dated 20 April 2018 that the migration agent had submitted an FOI request to the Department. As the applicant’s file contained a certificate under s.438 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 she has sought review by the Office of the Australian Information Commissioner.

7. The Tribunal provided the certificate to the applicant prior to the hearing. The representative in correspondence dated 29 May 2018 argued that the certificate were defective in the reasons provided for non-disclosure.

8. At the hearing the Tribunal went through the validity of the certificate and discussed it with the applicant. The certificate appearing as folio 38 in the Tribunal folder we found to be valid. Nevertheless, we provided a summary of the documents including the full release of folios 66-89 as it contained the applicant’s own protection visa application form.

9. 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

10. 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.

11. 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.

12. 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

13. 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

14. 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’.

15. On 1 November 2011 the applicant arrived on Christmas Island as an irregular maritime arrival. She claimed to be an undocumented stateless Faili Kurd living in Iran.

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

    ·Your citizenship at birth: Stateless Iran.

    ·Are you stateless: ‘Yes…Born. Faili Kurds have no rights. I am not accepted by any country.’

    ·‘I am a Faili Kurd, I am stateless. In Iran the Faili Kurds do not have any rights, we are not treated as human beings…I have no documents.’

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

18. In July 2014 the applicant submitted a report to the [Australian] Police claiming to have lost her Iranian passport. The relevant passage describing her statement is as follows:

    [The applicant] states that she was in the [shopping] centre and had both her and her sisters passports in her bag. [The applicant] states that she had her bag in the trolly (sic) and was shopping with her sister. [The applicant] states that she misplaced her bag. [The applicant] reported her missing passport online but was told by her embassy that she needed to report it to a police station and make an application to ‘Freedom of Information’.

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

19. The Department sent a Notice of Intention to Consider Cancellation (NOICC) by registered mail on 17 October 2017. The NOICC provided a summary of answers the applicant had provided during the protection visa application process relating to her claimed statelessness. It then engaged with the [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.

20. 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 she has formed the view that incorrect information was provided.

21. The applicant submitted a response to the NOICC which in summary made the following claims:

    ·She used a false passport to leave Iran.

    ·When lodging the lost Iranian passport report with [the] police she was referring to a barge taraddod issued to her by the Iranian authorities. She described the document as ‘a passport used by Faili Kurds to travel between the cities of Iran’.

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

    ·A scanned example of a barge taraddod was provided.

    ·The barge taraddod is valid for three months.

    ·The purpose for the applicant of having previously held a barge taraddod was to be able to travel to the Sultan Suhak shrine.

    ·The applicant’s belongings were recovered from the Iranian police in 2013 by distant relatives. Among these documents were the barge taraddod. In July 2014 her sister told her that they were lost in a shopping centre. As a result she reported the document stolen to the police.

    ·Because the barge taraddod is a rare document she referred to it as an Iranian passport as she was hoping that the police would recognise the Islamic Republic’s symbol in addition she claimed that it was commonly referred to as a passport by stateless Faili Kurds.

22. Following this process the Department concluded that the applicant was in breach of s.101(a) and s.101(b) and in particular that she was not stateless but a citizen of Iran and as a result the visa was cancelled under s.109 on 7 December 2017.

23. 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 she provided correct information to the Department in the visa application.

24. At the hearing the Tribunal explained that we are obliged 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 applicant’s grandmother. This adverse information was relevant to each applicant. We explained that the Department had undertaken a facial image comparison between [Ms A] and [Ms B] and determined that they are the same person. This determination was a reason for the cancellation of the applicant’s mother’s visa. We read from the mother’s NOICC, ‘I consider your answer to question 43 of Form 866C incorrect because a Facial Image comparison Specialist identified that your mother’s correct identity is [Ms B], an Iranian citizen. Your mother [grandmother of the applicant] and father’s [grandfather of the applicant] Iranian identity card numbers are listed on the Iranian identity card submitted in association with your mother’s application for a subclass 679 visa on 3 September 2009 in the identity of [Ms B].’ This led to the inference that each applicant was an Iranian citizen.

25. The applicant explained that her grandmother’s life was complicated. She referred to her grandmother as [Ms A]. She explained that [Ms A] knew a couple who were very wealthy but could not conceive children. [Ms A] and her grandfather were very poor. The couple suggested [Ms A] give some of her children to the couple, which she did. The wealthy woman then gave her identity papers to [Ms A]. The identity documents were in the name of [Ms B]. Those children raised by [Ms B] were already in Australia when the remainder of the children, raised by [Ms A], came to Australia and it was not until the applicant’s arrival to Australia that she learned the truth about some of her siblings.

26. A more detailed version was provided by [Ms A], the grandmother, in the form of a statutory declaration to the applicant’s mother’s file. This was noted at the Tribunal hearing. As it provides context not adverse to the applicant we include it here:

    ·[Ms A] married at [age] and lived in very poor circumstances. They were on the brink of starvation when in 1956 a wealthy distant cousin visited them and offered to provide financial support if she was to have children for him as he was infertile. [Ms A’s] husband agreed to the arrangement.

    ·[Ms A] bore [a number of] children which were all given to her cousin.

    ·In 1979 [Ms A] and her family including the applicant’s mother were expelled from Iraq and moved to [Iran].

    ·Fifteen years after expulsion to Iran [Ms A] received a letter informing them of the death of [Ms B], the wife of the wealthy distant cousin. The letter from a relative of [Ms B] included [Ms B’s] identification document, passport and a letter containing the names of the [children] and their contact details along with a large sum of money.

    ·Using the documents [Ms A] added the names of her two remaining children and replaced the photo of [Ms B] with that of the herself but she could not get identity documents for the two children she had added as evidence of the father’s Iranian nationality was required.

    ·[Ms A] got in touch with the children raised by [Ms B]. When two of these children came to Australia she travelled here to meet them without telling her children who believed that she was visiting Iraq. This is how she first came to Australia in 2003 under the name of [Ms B].

    ·She subsequently returned to Australia twice.

27. The applicant has not had any contact with her grandmother since a heated argument over what she had done to the family.

28. At the hearing we discussed with the applicants the police report each made separately:

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

    ·[The applicant’s sister] reported [in] July 2014 the loss of her and her sister’s passports in [a] shopping centre.

    ·[The applicant] reported [in] July 2014 the loss of her and her sister’s passport in [a] shopping centre.

    ·[A witness] reported [in] May 2014 a lost passport at [a] Shopping Centre.

29. The applicant’s sister corrected the record and said that she had not lost any documents and there was no theft of documents in the manner described. She admitted the police reports were false. The decision to make the false reports was a decision they jointly came to. The applicant’s sister explained that they needed some sort of identity document for their Australian citizenship applications hence the family decided to each separately go to the police and make a false report. With this false report the applicant then applied to the Iranian Embassy for identification documents. The applicant agreed that what her sister had said was true.

30. The applicant provided her own version of the events that followed. She said that she called the Iranian Embassy saying that she needed an identification card. Embassy said that they should get a police report as they didn’t have any Iranian identification. When she looked at the online system there was only the option to report a ‘lost passport’, so she did. She then applied for it claiming that she did so ‘like a bullet in the darkness’, maybe something will be created such as a birth certificate. We asked why a birth certificate would be generated if she is stateless. She said that she was given previously a barge taraddod. The Tribunal put to her that it is not a birth certificate. She confirmed that she did not get any documents from the Embassy.

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

31. 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.

32. 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.

33. Considerable submissions were made by the applicant supporting her claim to be Kurdish. The Tribunal accepts this as fact. We also note that information from the Department of Foreign Affairs notes that not all Faili Kurds are stateless.[1] As such being Kurdish does not shed additional light on whether the applicant provided incorrect information regarding her statelessness.

    [1] Department of Foreign Affairs, DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014 at [2.15]

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

35. The applicant submitted in a statement that they 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”.[2]

    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.[3]

    [2] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, p.37

    [3] Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, p.67   Accessed 26 April 2018

36. The applicant did not mention bribing anyone at the airport. The family could not explain how they obtained the passports as they claimed that it was organised by the men in their family. It may be that the forged passport is actually a fraudulently obtained legitimate passport.[4]

    [4] Danish Immigration Service, LANDINFO (Norway) and Danish Refugee Council 2013, On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures: Joint report from the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London, United Kingdom 9 November to 20 November 2012 and 8 January to 9 January 2013, February, p.68 Accessed 6 March 2018

1. The Tribunal has also considered the evidence provided by the applicant regarding the report she made to the police about a lost passport. The original report she gave to the [Australian] Police clearly stated the lost item being a passport. When engaged by the Department in the process of cancelling her visa she said that it wasn’t a passport but rather a barge taraddod. At the Tribunal hearing she shifted her claims again by stating that there was no document at all. This apparent willingness to change her evidence at each stage is of great concern to the Tribunal.

2. The applicant provided to the Tribunal an explanation why she provided misleading information to both the [Police] and the Department. She claimed that she was under the impression that to apply for her Australian citizenship she would require an identity document. She therefore conspired with her family to lie to the police and obtain a report which she could then submit to the Iranian Embassy. The Tribunal is concerned that the applicant, who speaks English, would not enquire with the Department whether a stateless person would need to provide documentary evidence of their identity.

3. The Tribunal has considered the applicant’s explanation for making the false police report and in particular (i) whether her application to the Embassy was to obtain a document that truly existed, and as such suggest that she is an Iranian citizen, or (ii) whether she acted upon a misplaced desperation to seek any document that may have existed in the Iranian system, because she thought it was what would be required of them when applying for citizenship. Considering that the applicant did not contact the Department to check on what identity documents would actually be required of stateless people, for which even a simple search online would have provided an answer that none were required, the competing explanations are difficult to reconcile.

4. Nevertheless, the applicant and her family members provided a detailed narrative surrounding how they came to be stateless centred around the grandparents’ selling their children which is supported by country information[5] of similar practices continuing to occur decades after the applicant’s claimed events occurred. As the practice of selling children occurs now at a time when there is greater awareness of the consequences and some legal safeguards in Iran, the possibility of it occurring then and in the circumstances described is plausible.

   [5] UN Committee on the Rights of the Child (CRC), The Third Periodic Report on the Convention on the Rights of the Child: The Islamic Republic of Iran, March 2013, available at: [accessed 22 August 2018] p101 and Radio Farda, Parliamentarians: 'Child Selling On The Rise In Iran', 21 May 2017 accessed 22 August 2018

5. While the Tribunal acknowledges the Iranian identity documents which the grandmother provided to the Australian government during her two earlier visits to Australia including a passport suggesting that the family are citizens of Iran and another that lists the applicant’s mother as an officially registered child, the Tribunal notes the country information states:

   Information has been located referring to the general availability of fraudulent documents in Iran. An unspecified Western embassy in Tehran stated that ‘it is possible to buy legal documents in Iran and obtain genuine documents in a fraudulent manner’. Consular officers at the U.S. embassy in Ankara have stated that ‘documents are easy to get in Iran through bribery and connections’, including civil documents.[6]

   [6] Danish Immigration Service op cit

6. In respect of the reason for the applicant making a false report to [Police] and the circumstance in which the family members conspired to each give a false report, the whole of the evidence is of concern. Nonetheless, the Tribunal does not find that the information in the [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.

7. 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 further finds that the applicant is a stateless Faili Kurd, and therefore did not provide incorrect information. For those reasons, the Tribunal finds there has been no non-compliance in the manner described in the NOICC.

   DECISION

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

   Brenton Illingworth
   Senior Member

   
   

   Denis Dragovic
   Senior Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)      purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)      giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)      visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.