1731244 (Refugee)

1731244 (Refugee) [2021] AATA 1358 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731244
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Michael Hawkins AM
DATE:2 March 2021
PLACE OF DECISION:  Brisbane
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 02 March 2021 at 10:33am

CATCHWORDS
REFUGEE – cancellation – protection visa – nationality – Stateless – race – Faili Kurd – ground for cancellation – incorrect information in visa application – adverse profile as a stateless Faili Kurd – information in subsequent Partner visa application – Iranian citizenship – marriage certificate – child’s birth certificate – chances of obtaining genuine Iranian identity documents through fraudulent means – bogus documents provided in Partner visa application – applicant’s passport beyond the scope of current review application – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Briginshaw v Briginshaw (1938) 60 CLR 336
Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841
Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that they believed there had been non-compliance with s.101 of the Act, in that incorrect answers were given or provided in the applicant’s application form. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes 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 as a consequence of that cancellation, not by a decision but 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 applicants appeared before the Tribunal on 15 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act in the following respects: 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.
The delegate concluded that the applicant had not complied with section 101(b) of the Act as he had provided incorrect answers to questions 41, 42, 43, 44, 45, 46 and 65 of the form 866C in his application for a visa.
Notice of Intention to Consider Cancellation of Visa
A s.107 Notice of Intention to Consider Cancellation (NOICC) was issued on 24 August 2017. It has particularised information deemed to be in breach of ss.101(b) of the Migration Act:
[In] March 2011 you arrived on Suspected Illegal Entry Vessel (SIEV) [number]; " [vessel name redacted]" to Christmas Island as an illegal maritime arrival and made claims to be a refugee.
On 10 June 2011 you were assessed as not meeting the criteria set out in Article IA(2) of the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees (Refugees Convention); the delegate was not satisfied that you were someone to whom Australia owed protection obligations; that is the delegate was not satisfied that there is a 'real chance' that you would be persecuted and subjected to harm if you were to return to Iran on account of your claimed stateless Faili Kurd status.
On 10 June 2011 your case was referred for Independent Protection Assessment (IPA) for further assessment.
On 28 March 2012 the IPA delegate found that you met the criterion for a protection visa as set out in s36(2)(a) of the Migration Act 1958. Accordingly, it was recommended that you be recognised as a person to whom Australia has protection obligations
As a result, based on the recommendation, the Minister exercised his power under section 46A(2) of the Act to allow you to lodge a Protection visa application.
On 11 July 2012 you lodged an application for a Protection class (XA) (subclass 866) visa.
The visa application form 866 Form – Application for a Protection (Class XA) visa which was submitted to the Department contained the following information:
At question 1 of Part C of the 866 Form where it asks for your "Name" you provided the following information:
Family Name: [Family name 1]
Given Name: [Given name 1]
At question 7 of Part C of the 866 Form where it asks for your "Date of birth" you provided the following information:
Date of Birth: [date]
At question 8 of Part C of the 866 Form where it asks for your "Place of Birth" you provided the following information:
Town/city: [Village 1] Country: Iran
At question 12 of Part C of the 866 Form where it asks which "Ethnic Group" you belong to you provided the following information: "Faili Kurd"
At question 13 of Part C of the 866 Form where it asks for your religion you provided the following information:
Your religion (if any): Atheist
At question 14 of Part C of the 866 Form where it asks for your relationship status you provided the following information:
Status: Married
Date of Marriage: [September 2008]
Place of Marriage: [Village 1], Iran
At question 19 of Part C of the 866 Form where it asks for your "Citizenship at birth", you answered: "Stateless in Iran"
At question 20 of Part C of the 866 Form where it asks for your "Current citizenship (if different to at birth)", you did not respond.
At question 21 of Part C of the 866 Form where it asks if you: "hold any other citizenship or are you a national of any other country" you ticked the box denoting "No"
At question 22 of Part C of the 866 Form where it asks if: "you have the right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual?" you ticked the box denoting "No".
At question 23 of Part C of the 866 Form where it asks: "if you are stateless, how and when did you lose your citizenship?" you answered "birth".
At question 41 of Part C of the 866 Form where it asks you: "I am seeking protection in Australia so that I do not have to go back to: (Give name of country or countries)" you stated: "Iran".
At question 42 of Part C of the 866 Form where it asks: " Why did you leave that country?" you answered: " Please refer to my statutory declaration"
At question 43 of Part C of the 866 Form where it asks: "What do you fear may happen to you, if you go back to that country", you answered: "Please refer to my statutory declaration"
At question 44 of Part C of the 866 Form where it asks: "Who do you think may harm/mistreat you if you go back?" you answered: "Please refer to my statutory declaration"
At question 45 of Part C of the 866 Form where it asks: "Why do you think this will happen to you if you go back? "you answered: "Please refer to my statutory declaration"
At question 46 in part C of the 866 Form where it asks: "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" you answered: "Please refer to my statutory declaration"
At question 47 in part C of the 866 Form when asked: " When did you leave your home country?" you stated: "18 December 2010"
At question 50 in part C of the 866 Form when asked: "did you have difficulties obtaining a travel document (such as a passport) in your home country?" you answered: "Yes". When asked to give details you stated: "I had to pay a smuggler for it because I am stateless and have no docs."
As part of the Protection Obligation Determination (POD) Process, you provided a statutory declaration dated 13 May 2011. This is the statutory declaration that you referred to in your responses to question 42 - 47 for the purposes of your Protection visa application. In this declaration you provided the following information:
I am an atheist and a Faili Kurd, I have no other citizenships and I am not entitled to a citizenship nor have I the right to residence in any other country, I am stateless and undocumented.
I was born in [date] in [Village 1] of the city of [City 1] in the Ilam province of Iran.
Both my parents were born in Kurdistan in northern Iraq and so were some of my siblings
My parents, [and number of siblings] were expelled from Iraq in 1980 because they were Faili Kurds and didn't have Iraqi citizenship.
I am aware that my parents and sibling were in a refugee camp in Ilam but I am unaware as to the name of that camp, I was born in that camp.
I am unaware if my parents were green card holders or if any of my siblings held a white card, I however never held any card in Iran.
I have one sister and [number of] brothers, one of whom is at the Darwin immigration detention centre with his wife.
My wife [Ms A] is an Iranian citizen, she and I met in my village and were married [in] September 2008, our marriage was a religious marriage given I was undocumented and couldn't have a civil marriage therefore we have no marriage certificate.
Our son [Child B] was born at home [number] years later, on [date] he wasn't registered with the authorities and he is stateless as I am.
The country of which I fear returning: Iran
The reasons I left Iran:
I am unable to live in Iran, I am stateless and unable to legalise my situation in anyway, I have no documents and I am not entitled to medical insurance or cannot further my studies if I wanted to. I cannot obtain a driver's license nor can I get officially and legally married because I have no documents and this most of all oppresses me. I was unable to open a bank account either. I want to have children like everyone else but I am unwilling to do so because they will only grow up to be stateless, with no documents and no prospect to legalise their situation.
I am unable to register my son's birth in Iran for I am undocumented and should my wife try to register him, she will be accused under Sharia law to have given birth out of wedlock and could be sentenced under that law to 99 lashes or death by stoning.
I am not a religious person at all but I do respect our traditions, I respect Narouz, eat our traditional food and wear our traditional clothes however, wearing my traditional pants outside of home labels me immediately as a Faili Kurd and attracts the attention of the Basij and the public, this I have tried to avoid all my life.
In my village, most are Faili Kurds and speaking Faili Kurd in the streets there is common but one would have to be very brave doing so outside the village.
What I fear may happen to me if I return to Iran:
I will be arrested at the airport and detained because I left with a false passport, the Iranian authorities will put me in prison and do with me as they want, they will probably kill me and no one will know of it.
I will be persecuted because of my race, Faili Kurd
I will be persecuted because I am a Faili Kurd.
I will be persecuted and seen as opposing the Iranian government because I sought asylum in a western country.
I am persecuted by my inability to secure better paying employment because I am a Faili Kurd.
Who might harm me if l return to Iran?
The very authorities I would look to for protection
Why I think that might happen to me if I return:
Because l am an undocumented Faili Kurd and departed Iran unlawfully
Do I think the authorities can protect me if I return?
No
Why I think that there is a place in Iraq or Iran where I could be safe
No to either
I can't relocate to any part of Iran or Iraq because:
I am an undocumented Faili Kurd and stateless, wherever I go, assuming I get past the authorities at the airport, I will be an undocumented Faili Kurd and stateless.
At question 65 in part C of the 866 Form - "Declaration" when asked to declare the following:
The information I have supplied on or with this Part C of the Form 866 is complete, correct and up to date in every detail.
I understand that if I have given false or misleading information, my application may be refuse, and any visa issued may be cancelled.
You declared the following: And I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
You signed this form on 14 March 2012.
Your Protection class (XA) (subclass 866) visa was subsequently granted by the Department on 19 July 2012 on the basis of the information you provided in your visa application, 866 Form – Application for a Protection (Class XA) visa. As well as the information which you provided in your statutory declaration dated 13 May 2011 which was referred to in your application at questions 41 - 46.
Partner (Offshore) (BC) (subclass 100) visa
On 19 September 2012 [Ms A] (DOB: [date]) lodged a Partner (Offshore) class (BC) (subclass 100) visa application. [Ms A] is listed as the main applicant, with you as sponsor and your son; [Child B], (DOB: [date]) as a dependent applicant.
In support of the Partner (Offshore) class BC subclass 100 visa application a copy of the birth certificates of your wife and son, and a copy of your marriage certificate were submitted to the department. Whilst you have stated that your wife is an Iranian citizen these documents indicate that both you and your son are also Iranian citizens and contradict your claims that you were unable to register both your marriage and your son's birth.
On your son's birth certificate under father '[Given name 1]' is listed and the details of your ID card as ID Card [number] issued in [City 1]. You are also named on [Ms A’s] Shenasnameh as her spouse with the details of your ID as ID Card [number]I issued in [City 2]. Furthermore your marriage deed certificate denoted that birth certificate [number] in the name of [Given name 1] [Family name 1] was issued in [City 2] on [date]. The serial number for this birth certificate is [number].
Application for Australian Citizenship
On 24 January 2017 you applied for Australian citizenship.
In support of your citizenship application you provided a copy of your son's birth certificate; number [number], which indicates that he is an Iranian national and a copy of his Iranian passport, [document number]. Iranian passports are only issued to Iranian citizens.
Consideration regarding evidence
Iranian citizenship law provides that children acquire nationality through their fathers. The full nationality law is defined in Book 2 of the Civil Code of Iran:
Book 2
On Nationality
Article 976 - The following persons are considered to be Iranian subjects:
I - All persons residing in Iran except those whose foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government.
2 - Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran;
3 - Those born in Iran of unknown parentage;
4 - Persons born in Iran of foreign parents, one of whom was also born in Iran.
In order to obtain an Iranian passport your son had to be an Iranian citizen. In accordance with Article 976 of the Iranian Nationality law which stipulates that children born to Iranian national fathers are by virtue of birth Iranian citizens, therefore it follows that you must be a citizen of Iran as you are the biological father of an Iranian child.
The information provided by you in support of your protection visa application was material to the determination that you were found to engage Australia's protection obligations. As you are a citizen of Iran, and not a stateless Faili Kurd as you claimed, you enjoy the rights and protection of an Iranian citizen in Iran. The information that you were a stateless Faili Kurd, I consider was contrived by you in order to secure permanent residence. I consider that it appears that you may have provided incorrect information in support of your protection visa application.
Based on your claim of statelessness, your claimed persecution was accepted by visa decision makers and you were found, by a delegate of the Independent Protection Assessment, to be a refugee who was owed Australia's protection on 28 March 2012.
Given the evidence explained above, I consider that you have not complied with section 101(b) of the Act when applying for your Protection visa because you are not stateless; you hold Iranian citizenship and did so at time of your protection visa application. I also note that as it appears you are an Iranian citizen and were so at time of your protection visa application, your associated claims of serious harm based on your alleged stateless status in Iran are also apparently incorrect as you are an Iranian citizen.
Therefore, the answers you provided to questions in your 866 Form - Application for a Protection (Class XA) visa, in relation to you being persecuted on the basis that you were an undocumented stateless Faili Kurd, appear to be incorrect. This is based on the information obtained by the department as detailed above.

The delegate stated that the incorrect information provided by the applicant was material to the grant of his Protection visa as it appears that the applicant may not have engaged Australia’s protection obligations.
The delegate concluded that the applicant had not complied with Section 101(b) of the Act as the applicant had provided incorrect answers to the following questions in his application for a Protection visa. The delegate noted the following information:
Particulars of the non-compliance
Specifically I consider that you have provided incorrect information in response to:
At question 41 of Part C of the 866 Form where it asks you: "I am seeking protection in Australia so that I do not have to go back to: (Give name of country or countries)" you claimed that you were seeking protection from Iran, because you were a Faili Kurd with no entitlement to any citizenships.
I consider this answer incorrect as the department has evidence that you are an Iranian citizen and not a stateless Faili Kurd as claimed. As you are a citizen of Iran, and not a stateless Faili Kurd as you claimed, you enjoy the rights and protection of an Iranian citizen in Iran.
At question 42 of Part C of the 866 Form where it asks: ""Why did you leave that country?" You claimed that you were unable to reside in Iran as you were stateless and you had no documentation. You further claimed that as you had no documentation that you were not entitled to medical insurance or further your studies. You could not obtain a driver's license nor get legally married. You also claimed that you were unwilling to have children as they would also grow up to be stateless. You stated that your son's birth was not registered in Iran and that he was also stateless.
I consider this answer incorrect as the department has evidence that you are an Iranian citizen, in accordance with Article 976, and not a stateless Faili Kurd as claimed. You submitted a copy of your son's Iranian birth certificate and Iranian passport in support of your Australian citizenship application and a copy of your marriage certificate in support of your Partner (Offshore) (BC) (subclass 100) visa application. An Iranian birth certificate and an Iranian passport are evidence that your son's birth was registered and that he is an Iranian citizen. Therefore this is evidence that your son is not stateless and by operation of Iranian citizenship law; Article 976, you are not stateless.
As you are a citizen of Iran, and not a stateless Faili Kurd as you claimed, you enjoy the rights and protection of an Iranian citizen in Iran.
At question 43 of Part C of the 866 Form where it asks: "What do you fear may happen to you, if you go back to that country?" You claimed that you would be persecuted because you are a Faili Kurd.
I consider this answer incorrect as the department has evidence that you are an Iranian citizen and not a stateless Faili Kurd as claimed. As you are a citizen of Iran. I consider that you do not hold a fear of persecution in Iran on the basis of being a stateless Faili Kurd.
At question 44 of Part C of the 866 Form where it asks: "Who do you think may harm/mistreat you if you go back?" You claimed that you would be harmed or mistreated by the very authorities you would look to for protection.
I consider this answer incorrect as the department has evidence that you are an Iranian citizen and as such, are not at risk of persecution from the authorities due to being a stateless Faili Kurd. As you are Iranian you are afforded the protection of Iranian authorities as per any other Iranian citizen.
At question 45 of Part C of the 866 Form where it asks: "Why do you think this will happen to you if you go back?" You claimed that this would happen because you are an undocumented Faili Kurd who departed Iran unlawfully.
I consider this answer incorrect as the department has evidence that you are an Iranian citizen and therefore your claims of persecution due to being an undocumented Faili Kurd are unsupported as you did not hold this adverse profile at the time of application or grant of your protection visa.
At question 46 in part C of the 866 Form where it asks: " Do you think the authorities of that country can and will protect you if you go back? If not, why not?" You claimed that they would not be able to protect you, and that nowhere in Iran or Iraq would be safe because you are an undocumented Faili Kurd and stateless.
I consider this answer incorrect as the department has evidence that you are an Iranian citizen and are therefore afforded the protection of the Iranian authorities as per any other Iranian citizen.
At question 65 in part C of the 866 Form - "Declaration" when asked to declare the following:
The information I have supplied on or with this Part C of the Form 866 is complete, correct and up to date in every detail.
I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
You declared the following: And I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
I consider his information to be incorrect because of the incorrect answers provided to questions 41 - 46.
I consider that you have not complied with section 101(b) of the Migration Act in relation to the answers you provided in your Protection class (XA) (subclass 866) visa application, in particular to questions 41- 46 part C of Form 866, in which you declared that you would be persecuted due to you being a stateless Faili Kurd. Whereas, in actual fact, the evidence indicates you are not stateless but hold Iranian citizenship and did so at the time of your protection visa application. Your associated claims of harm based on your alleged stateless status in Iran are also apparently incorrect as you are an Iranian citizen.
If you have failed to fill in your application form in such a way that no incorrect answers were given, or provided, then your visa may be cancelled under section 109 of the Migration Act.
The NOICC notes that the delegate considered that the applicant has not complied with section 101(b) of the Act as he has provided incorrect answers to questions 41,42,43, 44, 45 and 46 of the form 866C in his application for a visa. If the applicant has failed to fill in their application form in such a way that no incorrect answers are given or provided their visa may be cancelled.
The NOICC notes that by failing to comply with section 101(b) of the Migration Act 1958 the applicant's subclass 866 Protection visa is liable for cancellation.
Response to NOICC
The applicant responded to the NOICC on 5 September 2017 which attached a statement which stated the following:
·I was not aware of the existence of these documents. The documents were provided by my father in law and sent to my wife.
·My family needed identification documents to leave Iran and they were forced to obtain the identity documents illegally. They submitted them to the Department to prove their existence.
·I did not intend to mislead the Department but I wanted my family to get out of Iran sooner rather than later.
·I am not Iranian and I cannot return to Iran because I will be arrested for lack of identification and because of my lack of religion and lack of faith in God. The Iranian government will not protect me, if I return to Iran I will be arrested and I will go to jail.
·My life is in danger and I will be condemned to death for insulting Muslims. If I'm going to die, I'd rather die in Australia.
·The Iranian government is criminal and executes its citizens every day.
·I am not Iranian and I am never going back to Iran because it does not observe human rights.
·l resided in Iran for [number of] years and all I saw was lawlessness and injustice; death, humiliation and neglect.
·I never intended to mislead the Immigration Office, and did not make false declarations. I was only trying to help my family who were living in terrible conditions. I was afraid I would never see them again.
·[Ms A] is my wife, but we do not have formal marriage documents and the marriage document is fake. [Child B] is my son but he does not have real documents. They needed to obtain ID documents quickly to enable them to leave Iran.
·I have resided in Australia for 6 years and during that time I have not committed any offences. I try to be a good citizen and always respect the law. My son attends school and loves Australia. He only knows how to read and write in English he cannot read and write in another language.
·My wife has a mental health issues and is on medication. I care for her on a daily basis. My wife has been under the supervision of a doctor over the past two years because of the conditions and stress of living in Iran.
Departmental Decision to cancel the applicant’s visa under s.109 of the Act
The Departmental delegate proceeded to cancel the applicant's subclass 866 visa in a decision made on 7 December 2017.
Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant in so far as the applicant failed to give correct information in his XA 866 Protection visa application.
The delegate noted that having considered the applicant’s reasons why he disputes there was not any non-compliance, they were satisfied that the grounds for cancellation exists.
The delegate made the following assessment of the applicant’s response and all the prescribed circumstances as set out in r.2.41 of the Migration Regulations:
The correct information
The correct information is the visa holder is an Iranian citizen and was so at the time of application and grant of his protection visa. The visa holder did not hold the profile of a Stateless Faili Kurd he claimed as part of his protection visa application.
As he is a citizen of Iran I consider the visa holder does not hold a fear of persecution in Iran on the basis of being a stateless Faili Kurd.
The content of the genuine document (If any)
In his response to the NOICC the visa holder claimed the documentation pertaining to his wife and son, submitted to the Department in support of the Partner (Offshore) class (BC) (subclass 100) visa application and his application for Australian citizenship were fake. The visa holder further claims the documents; birth certificates of the visa holder's wife and son, and a copy of his marriage certificate and son's passport, were obtained illegally to enable them to depart Iran.
A document examination was carried out on the marriage certificate, birth certificates and the son's passport; [document number]. These documents were all verified as genuine.
The visa holder denied having knowledge of the existence of these documents and claimed they were obtained illegally to prove his wife and son's existence and to expedite their departure from Iran.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
I consider the delegate in the absence of any contrary information relied on the accuracy of the visa holder's responses and declarations when making the decision to grant his Protection class (XA) (subclass 866) visa.
The visa holder's Protection class (XA) (subclass 866) visa was granted on 19 July 2012 on the basis he met the criteria for the visa, and the delegate was satisfied the visa holder met the definition of a Refugee within the meaning of the Refugees Convention and relevant provisions of the Migration Act and is someone to whom Australia owes protection obligations; that is there is a 'real chance' he would be harmed if he was to return to Iran.
I consider the decision to grant the visa holder's Protection class (XA) (subclass 866) visa was based predominately on the incorrect information the visa holder provided in relation to his protection claims and claimed adverse profile of interest due to his professed status as a Stateless Faili Kurd.
The circumstances in which the non-compliance occurred
The circumstance in which the non-compliance occurred was when the visa holder intentionally provided incorrect information to facilitate the grant of his Protection class (XA) (subclass 866) visa.
In response to the NOICC the visa holder stated the answers he provided to questions in his 866 Form - Application for a Protection (Class XA) visa, in relation to his fear of persecution if he were to return to Iran, due to his status as a stateless Faili Kurd, were correct at time of application and if there has been a mistake it was not deliberate and he did not mean to mislead the Department.
The visa holder states he was not aware of the existence of the documents submitted to the Department on behalf of his wife and son, in support of his Partner (Offshore) class (BC) (subclass 100) visa application and his application for Australian citizenship. These documents indicate the visa holder is an Iranian citizen.
I find it implausible the visa holder was not aware of the existence of these documents given they were submitted in support of his partner application and his application for his Australian citizenship. The visa holder claimed the documents were obtained illegally however a document examination assessment verified the documents as genuine.
I consider this adverse profile was fabricated to facilitate the grant of his Protection class (XA) (subclass 866) visa.
The delegate concluded that when considered as a whole, the circumstances in this case led him to the view that the evidence indicated the visa holder is not a stateless Faili Kurd but an Iranian citizen and was so at the time of his visa application, and visa grant. As the visa holder is an Iranian citizen his associated claims of harm based on his alleged stateless status in Iran are incorrect. The delegate was satisfied the visa holder provided incorrect information in his application for his Protection class (XA) (subclass 866) visa. The delegate was satisfied the visa holder fabricated an adverse profile as a stateless Faili Kurd living in Iran in order to facilitate the grant of his protection visa.
Review Hearing
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Neither the applicant nor the representative objected to the conduct of a hearing by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was satisfied that the telephone service was clear and uninterrupted; it confirmed that the applicant, the representative, the interpreter and the Tribunal Member could hear each other clearly and the Tribunal paused on several occasions to ensure that the applicant was satisfied with the clarity of the hearing.
The Tribunal conducted a hearing on 15 February 2021. The applicant attended the hearing with his family and representative. The hearing was assisted by an interpreter in the English and Persian languages.
At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department of Immigration to cancel his protection visa under s.109 of the Migration Act. The Tribunal noted that a delegate of the Department of Immigration had formed a view that the applicant had provided incorrect information in his application for protection. As a result of this the applicant was served with a Notice of Intention to Consider Cancellation of his visa and given an opportunity to comment on those grounds.
The Tribunal noted that the delegate of the Department of Immigration had formed a view that the applicant had not complied with the requirements of paragraph 101(b) of the Migration Act, referring amongst other things to the answers the applicant had provided in his application for a protection visa regarding his protection visa claims. The Tribunal noted that based on all of the evidence before him the delegate proceeded to find that the applicant had provided incorrect information in his protection visa application and that the grounds for cancellation having regard to the relevant considerations applied in this case.
The Tribunal explained to the applicant that it was conducting a de novo review of that decision and in doing so would have regard to the evidence provided by the applicant in his protection visa application, the material on the Departmental cancellation file, material provided at review and evidence provided by the applicant at the review hearing. The Tribunal explained to the applicant that the issues in the review were whether there was non-compliance in the way described in the section 107 Notice of Intention to Consider Cancellation, and, if so, whether the Tribunal should exercise the discretion to cancel the visa. The Tribunal outlined the relevant discretionary considerations for the applicant's benefit.
The Tribunal noted that the applicant was granted a subclass 866 (Protection) visa on 19 July 2012. The Tribunal noted that the applicant had provided the Tribunal with a copy of the delegate’s decision and suggested to the applicant and his representative that the Tribunal might take the applicant's claims for protection provided to the Department of Immigration on 11 July 2012 as having been read. The applicant and representative agreed.
The Tribunal notes that on 19 September 2012 the applicant’s wife lodged a Partner (Offshore) Class (BC) (Sub-Class 100) Visa Application. The applicant’s wife is listed as the main applicant, with the applicant as Sponsor and their son as a Dependant Applicant.
In support of the Partner Visa Application, a copy of the Birth Certificates of the applicant’s wife and son, and a copy of the applicant’s Marriage Certificate, were submitted to the Department. The applicant had always maintained that his wife was an Iranian citizen, but the documents submitted indicated that both the applicant and his son were also Iranian citizens which contradicted the applicant’s claims made in his Protection Visa Application that he was unable to register both his marriage and his son’s birth.
The Tribunal inquired as to the status of the visas of the wife and child. The applicant replied that his wife’s visa was also cancelled by the Department. The Representative confirmed that the visa of the wife and child was cancelled on 22 January 2018.
The Tribunal considered its jurisdiction in relation to the cancellation of the visa of the wife and child. It noted that neither the wife or child were applicants on the Protection Visa Application and that only the Protection Visa has been cancelled pursuant to the Notice of Cancellation of Visa. The Tribunal noted that it was the Partner Visas of the wife and child that had been cancelled.
Accordingly, the Tribunal formed the view that it had no jurisdiction in relation to the cancellation of the visas of the wife and son, noting that such cancellations were a consequence of the cancellation of the applicant’s Protection Visa.
Conclusion on non-compliance
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.

Case law authority establishes that it is not open to the Tribunal on review to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1]
[1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).
In Tarasovski v MILGEA[2] Wilcox J said that a court should find that a person had contravened what was then section 20 of the Migration Act only where the evidence established that proposition to a high degree of satisfaction, citing the decision of the High Court in Briginshaw v Briginshaw.[3] What Wilcox J said was subsequently applied in Singh v MIEA[4] and Housam Slayman v MIMA[5]. In a case involving a similar cancellation power under s.116 of the Act, French, Hill and Carr JJ said in Zhao v MIMA:
[2] Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 570, at 572-573.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
[4] Singh v Minister for Immigration and Ethnic Affairs (1994) 127 ALR 383.
[5] Housam Slayman v Minister for Immigration & Multicultural Affairs [1997] FCA 841.
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.^[6]
[6] Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] and [32]
This view appears to be consistent with more recent decisions of the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority[7] and Sun v MIBP[8]. In Sullivan the Court was dealing with a case relating to a review by the General Division of this Tribunal of a decision to cancel an aviation licence. Justices Flick and Perry observed at [115] that the rule in Briginshaw was a rule of evidence derived from curial proceedings, that the Tribunal was not bound by the rules of evidence and that a party to proceedings before the Tribunal has no onus of proof let alone an onus to establish facts to any particular or pre-determined standard. They said (at [120]) that:
[7] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.
[8] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52.
‘When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.’
In the present case, it is clear that the consequences which flow from the decision that the applicant gave incorrect information in his statutory declaration are serious.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: that the answers given in the applicant’s Protection visa application form were incorrect. In summary the particulars relied upon the applicant not being a stateless Faili Kurd but an Iranian citizen and who was so at the time of his visa application, and visa grant. As the applicant is an Iranian citizen his associated claims of harm based on his alleged stateless status in Iran are incorrect. The delegate was satisfied the visa holder provided incorrect information in his application for his Protection class (XA) (subclass 866) visa. The delegate was satisfied the visa holder fabricated an adverse profile as a stateless Faili Kurd living in Iran in order to facilitate the grant of his protection visa.
The Tribunal noted that the delegate relied upon the applicant’s written response to the NOICC. The applicant was not invited to an interview with the delegate and was not interviewed by the delegate.
The applicant disputes that there was any non-compliance with s.101(b) of the Act when he completed his protection visa application.
As noted by the High Court of Australia in the recent decision of ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (14 October 2020) (at paragraph 11) the Code of Procedure in Subdivision AB of Div 3 of Pt 2 of the Act, which governs the procedure for the assessment of a visa application, empowers the Minister or a delegate “if he or she wants to” to “get any information that he or she considers relevant” on the condition that, if he or she “gets such information” he or she “must have regard to that information in making the decision whether to grant or refuse the visa”. The Minister or delegate is specifically empowered to invite the applicant to give additional information in any of three ways: “in writing”, “at an interview between the applicant and an officer” or “by telephone.”
The Tribunal noted that and noted that the applicant had not been invited to attend an interview with the delegate but had been invited to respond to the NOICC in writing, which the applicant did.
The Tribunal and the Representative discussed the issue of non-compliance at length.
The Representative submits that the applicant did not provide the Department with incorrect information in his Protection Visa application and that there was no non-compliance as purported in the NOICC. The applicant maintains that he is a stateless Faili Kurd as claimed in his Protection Visa application. He further maintains that the information he provided to the Department in relation to the citizenship application about the applicant and his son’s ethnicity and citizenship status were correct.
The Representative contends that it was the applicant’s wife who, with the help of her family, fraudulently procured genuine Iranian documents through bribery in order to expedite her Partner Visa application.
The Tribunal inquired of the Representative as to what he meant by “genuine documents”. The Representative replied that the documents submitted by the applicant’s wife were genuinely issued but that they contained false or bogus information on them.
The Tribunal confirmed then that the applicant, his wife and son used bogus documents for the purposes of procuring the Partner Visa. The applicant confirmed that was the case.
The Tribunal asked the applicant why they would do that. The applicant replied that as soon as he acquired his Protection Visa, he contacted the Department of Immigration to enquire about getting a visa for his wife. He asked what was needed to be done to get his wife and child to Australia. He asked about the timelines and was told that it could take two to five years. The applicant stated that he applied for his Australian travel documents and then approached a lawyer.
The applicant stated that he went to the lawyer needing to know whether he should persevere with trying to get his wife and child to Australia or whether he should go to Turkey or Iraq, for that matter wherever, in order to get his family together.
The applicant maintains that his lawyer told him that he could get a Partner Visa for his wife and child within five to nine months if he could get certain documents. He stated that his lawyer had a copy of his case history. He stated that his lawyer asked him for a Birth Certificate and Marriage Certificate and a deposit of $2,060.00 which was deposited into the Department’s bank account. He maintains he did not have an understanding of the legal requirements but that he knew he had no Birth Certificate but had to get one. He claims that he was desperate to see his family together and claims that his lawyer persuaded him that he would be successful.
The Tribunal noted that a Partner Visa application form has a clause in it requiring an applicant to confirm that the information contained in it is true and correct. The Tribunal asked the applicant why he would sign such a form as a Sponsor if he knew bogus documents were being relied upon. He replied that he did not understand English and trusted his lawyer.
The Representative added that the applicant was desperate and depressed and, like many people in his position, would take such actions as were necessary to procure an outcome.
The Tribunal discussed with the applicant that a possible outcome may be that his Protection Visa is upheld but that the Partner Visa may be cancelled on the face of the bogus documentation provided, that he may win the battle but ultimately lose the war. The applicant and Representative confirmed that was a real possibility.
The Tribunal stated to the applicant that based on the information before it, and particularly his preparedness to knowingly submit bogus documents, if those documents were ultimately determined to be such, that the Tribunal might then have genuine concerns about the applicant’s credibility and that if the Tribunal has any doubts about the submissions of the Representative in relation to whether the documents submitted were bogus, then the applicant’s credibility may become a persuasive issue.
The Tribunal inquired of the applicant about his journey from Iran to Australia.
The applicant replied that he flew from Imam International Airport to [Country 1] and caught a boat from [Country 1] to Australia.
The Tribunal inquired as to what travel documents the applicant relied upon to leave Iran. He replied that he travelled on an Iranian passport. The Tribunal noted that if the applicant had an Iranian passport, it would suggest that he is an Iranian national. He immediately replied that the passport was bogus and that it had been secured from a smuggler by his father-in-law. Asked where the passport now is, the applicant replied that the people smugglers took all of the identification documents of the passengers on the boat. He stated that his passport was in his backpack and that the people smugglers took his backpack.
The Tribunal then turned to the documents that had been submitted by the Representative in support of the submission that the documents lodged in support of the Partner Visa Application were bogus.
The Tribunal proceeded to consider each document in turn, engaging in a discussion with the Representative in relation to each.
The examination of documents was premised on the following claims:-
·The applicant was one of [number] children and his mother was not certain as to his exact location of birth;
·The applicant did not do military service because undocumented Kurds are not conscripted into the military;
·The applicant’s marriage in Iran was a Sijheh (unofficial marriage). The applicant states he could not legally marry an Iranian girl because of his ethnicity;
·The applicant had no Iranian identity documents such as National ID Card, Birth Certificate or Iranian passport. He maintains that his first Iranian passport was obtained by paying money to a dealer to prepare a passport for him before he fled Iran in early 2011;
·The applicant maintains he called his wife about the documents required for a Partner Visa and she gathered the documents in any possible way. He claims his wife is Iranian and had identity documents. All other identity documents from Iran for himself and his son were issued during the time when the applicant was in Australia;
·The applicant claims that his immigration lawyer, who was based in Melbourne, travelled to Iran during the course of the application process and met the applicant’s wife and family whilst there;
·Any documents obtained that required the physical presence of the applicant were obtained by the applicant’s wife’s cousin presenting himself as the applicant. The cousin applied for the son’s passport and for a Marriage Certificate on a date when the applicant was in Australia.
The Representative submitted a copy of the applicant’s Australian Driver’s Licence. The Representative asked the Tribunal to note both the photograph of the applicant and the signature that appears on the Driver Licence.
The Representative submitted a copy of the applicant’s Australian travel document, being a Titre de Voyage. The Representative asked the Tribunal to note the photograph on the document, the signature and the date of its issue, being [date in] 2012.
The Tribunal noted that the photograph and signature on the Driver Licence and passport were consistent.
The Representative submitted an Extract Translation of Birth Record of the applicant. The Representative asked the Tribunal to note the date of issue of the record on [date in] 2011, and the place of issue, being [City 1]. The Representative also asked the Tribunal to note that this document was not a “second issue” Birth Record, words which one would expect to see in the form of a watermark diagonally across a second issue. The Representative contends that this Birth Record is therefore the original or first time Birth Record.
The Representative submitted a copy of the actual Birth Record and asked the Tribunal to note the photograph upon the Birth Record and asked the Tribunal to compare that photograph upon the Birth Record issued [in] 2011 with the applicant’s Titre de Voyage [in] October 2012.
The Tribunal noted the difference in photographs.
The Representative submitted a translated copy of the Birth Certificate of the applicant’s wife. The Representative asked the Tribunal to note the section relating to the spouse. In particular, the Representative drew the Tribunal’s attention to the Birth Certificate Number of the spouse, noting that it was issued in [City 2] and bringing to the Tribunal’s attention the inconsistency with the Birth Record of the applicant which stated the place of issue was [City 1].
The Representative submitted a translation of a copy of a National ID Card of the applicant. The Representative drew to the Tribunal’s attention the date of issue of the ID Card, being 12 July 2011, noting that during that time the applicant was in Australia.
The Representative submitted a copy of the original National ID Card and drew to the attention of the Tribunal the photograph on the ID card. He asked the Tribunal to note that the photograph was different to that of the applicant’s photograph on his Driver Licence and travel document.
The Tribunal acknowledged that the photograph on the ID card was identical to the photograph on the Birth Record that purported to be that of the applicant.
The Representative submitted a translated copy of the Birth Certificate of the applicant’s son. The Representative drew to the attention of the Tribunal the Birth Certificate Numbers of the son’s father and mother.
The Representative noted that the Birth Certificate Number of the father, being one issued in [City 1], was consistent with the Birth Record previously discussed. However, the Representative drew to the Tribunal’s attention the date of issue of the son’s Birth Certificate, being [date in] 2009 which itself predated the issue of the Birth Certificate of the applicant by two years.
The Representative drew the attention of the Tribunal to the Birth Certificate Number of the son’s mother, noting it stated “[number] issued in Tehran”. According to the mother’s Birth Certificate, her Birth Certificate Number was “[number] issued in Tehran”.
The Representative submitted a translated copy of the National ID Card of [Mr C] who is the cousin of the applicant’s wife. The Representative asked the Tribunal to note the date of issue of the National ID Card [in] 2012.
The Representative submitted a copy of the original of the National ID Card of [Mr C] and asked the Tribunal to note the photograph upon it. The Representative submitted that the photograph on this ID card was identical to the photograph on the document purporting to be the applicant’s Birth Record and the document purporting to be the applicant’s National ID Card.
The Tribunal agreed that the photographs were consistent.
The Representative submitted a translated copy of the Birth Record of [Mr C] issued [in] 1978. The Representative asked the Tribunal to note the photograph that had been stapled to the Birth Record, it being a photograph identical to that on the National ID Card of [Mr C].
The Representative submitted a translated copy of a Power of Attorney wherein the applicant purportedly authorised the Department to issue a passport to his wife. The Representative asked the Tribunal to note the date of the Power of Attorney, being 12 October 2011, and two signatures on the original of the Power of Attorney that bore no relation to the actual signature of the applicant, which signatures appeared on the applicant’s travel document issued on virtually the same date.
The Tribunal considered Country Information from the DFAT Report:
Iranian passports are burgundy, with the Iranian Coat of Arms emblazoned on the top of the front cover. Passports serve as proof of Iranian citizenship. All Iranian passports are biometric (since February 2011). Iranian passports include the following data: holder’s signature; country of residence; place of issue; name and position of the issuing authority; passport type; country code; passport number; national identity number; holder’s name; father’s name; date and place of birth; sex; date of issue; and date of expiry. Passport applicants are required to provide their original shenasnameh, photocopies of all of the pages of the shenasnameh containing an ID photograph, the original and a copy of their Residence Permit, and three passport photographs taken within the last three months. Applications can be lodged at police stations. New passports are dispatched by registered post and arrive 10-15 days after the application’s date of lodgement. As with driver’s licences and other forms of identification, women must have a headscarf covering their hair completely in their passport photographs. The Iranian Passport Office is the issuing authority for Iranian passports.[9]
[9] DFAT Report, paragraph 5.38
The Tribunal also considered information in relation to the prevalence of fraud.[10]
Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.
Local sources told DFAT that document fraud is ‘extremely difficult’ for primary forms of documentation like passports, national identity cards, shenasnameh and driver’s licences. Obtaining these documents is considered beyond the technical and financial means of most Iranians. Passports and national identity cards have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge. These features also make fraudulent passports and national identity documents easy to detect. Secondary forms of documentation like military exemption cards are technically more vulnerable to fraud, as they have less robust security features, but are expensive to obtain. Paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easier to obtain through fraudulent means.
Multiple layers exist to protect against the issuance of fraudulent documents. In addition to being prohibitive financially, the potential consequences for officials involved in the fraudulent procurement of primary or secondary forms of identification, if caught, act as a major deterrent (including imprisonment). While DFAT cannot discount the existence of corruption in relation to official documentation, it does not assess it to be prevalent, particularly in relation to primary and secondary forms of documentation. DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.
According to Article 34 of the Penal Code, the penalty for leaving Iran without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (approximately AUD1-5 at current market rates). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances. This procedure also applies to people who are deported back to Iran and who are not in possession of a passport containing an exit visa. The UK Home Office, in a February 2019 Country Policy and Information Note, assesses that individuals who exit Iran illegally and have not previously attracted the adverse attention of the authorities – for example, for their political activism – face a low risk of prosecution. If prosecuted, the most likely punishment is a fine. DFAT understands that, where prosecution for illegal departure occurs, it often does so in conjunction with other, unrelated offences.
Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.
[10] DFAT Report, paragraph 5.41 – 5.45

The Tribunal considered country information in relation to the issue of birth certificates and National Identity Cards.
Birth registration is compulsory and must occur within 15 days of birth. Hospitals issue birth certificates for newborn children. The certificate includes the parents’ national identity card and shenasnameh numbers, and, where the parents have settled on one, the newborn’s name. Parents then submit the birth certificate along with their own national identity card or shenasnameh to the local ONOCR, which then issues the child’s shenasnameh (the ONOCR is the sole issuing authority for shenasnameh). Where a child is born at home, a doctor’s note stating all of the particulars of the birth is required for a birth certificate and subsequent issuing of a shenasnameh.
The shenasnameh itself is a small passport-style book issued to all Iranians. The first page is the inside of the cover page and includes the bearer’s fingerprint. The second page contains a photograph (for bearers over the age of 15), the names of the bearer’s parents, the date and place of birth, the location where the shenasnameh was issued, the name of the issuing officer and a serial number. The third page contains information on the bearer’s marriage(s), divorce(s) and children. The current style of shenasnameh was introduced in 2013.
To obtain a replacement shenasnameh, a person must attend the national ONOCR and produce an official identity document (such as a passport or national identity card) that confirms their identity. An affidavit of identity must also be presented. The replacement shenasnameh features a diagonal printing across the centre of all pages stating ‘duplicate’, and a new date of issuance.[11]
Every permanent resident of Iran over the age of 15 (including non-citizens) must hold a national identity card. National identity cards are compulsory for a range of activities, including obtaining passports and driver’s licences and using bank services. ONOCR initially issues applicants with temporary cards upon receipt of a completed application form, an original copy and photocopy of all pages of the applicant’s shenasnameh, and two photographs. Applicants must present all of this documentation in person at either a local branch of the ONOCR or an Iranian diplomatic mission abroad. Applicants’ fingerprints are also taken. The ONOCR then issues a permanent card with a 10-year validity. The front of the national identity card includes the bearer’s photograph, national identity number, full name, date of birth and shenasnameh number. The reverse features the bearer’s residential numerical code, validity date and the numerical identifier of the issuing office. National identity cards do not specify the bearer’s religion. National identity cards are biometric. The ONOCR is the issuing authority.
There is no requirement for Iranians to carry either or both of their shenasnameh or national identity card at all times. They are required only when it is necessary to prove identity — not having them will prevent individuals from being able to complete their business. Different offices require different forms of identification: banks require only a national identity card, while notary public offices require both a national identity card and shenasnameh. Iranians generally check with offices ahead of time to see which form of identification is required, or carry both as a means of security.[12]
[11] DFAT Report, paragraphs 5.32 – 5.34
[12] DFAT Report, paragraphs 5.35 – 5.36
The Tribunal notes the various and numerous inconsistencies between all of the documents submitted by the Representative which had been submitted in support of the Partner Visa application. It notes the inconsistent photographs and signatures that have been attached to the various documents. The Tribunal notes Country Information that states that Iranian identity documents include sophisticated security features that are difficult to manufacture for fraudulent use. The DFAT Report acknowledges that it may be possible to obtain a genuine identification document with the intention of impersonating another person, it also assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.
The Tribunal also notes that DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low. It also notes that security procedures at Imam Khomeini International Airport in Tehran are robust. DFAT advises that it is “next to impossible” to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Iman Khomeini International Airport with a fraudulent passport is extremely low.
However, the Tribunal notes that the applicant obtained a passport around about the same date that Iranian passports became biometric in February 2011.
Accordingly, the Tribunal is satisfied that it was plausible for the applicant to have a passport issued to him and which he used to depart Iran just prior to the date by which new passports were issued and security and cross-checks heightened.
However, notwithstanding this finding, the Tribunal acknowledges that its review of the means by which the applicant secured his own passport in 2011 is beyond the remit of this Tribunal, as they were not referenced in the s.107 NOICC.
The Tribunal acknowledges Country Information from DFAT that suggests that document fraud is extremely difficult for primary forms of documentation like passports, National Identity Cards, Shenasnameh (Birth Records) and Driver Licences. DFAT advises that obtaining these documents is considered beyond the technical and financial means of most Iranians.
However, the Tribunal acknowledges that obtaining such documents is possible if the financial means are available.
The Tribunal also notes that the numerous inconsistencies in the documents presented would belie the sophisticated nature of the Iranian issuing authorities.
The Tribunal acknowledges that whilst DFAT assesses that the chances of obtaining a genuine passport through fraudulent means are low, that carries with it an inherent acknowledgement of possibility.
Added to that, the brazenness of the applicant’s wife’s cousin in apparently impersonating the applicant, the Tribunal acknowledges the potential for all of the documents that were presented to the Department by the applicant’s wife in order to secure a Partner Visa are bogus.
The Tribunal is satisfied that the documents procured by the applicant’s wife, whilst apparently genuinely issued, contain incorrect information. The inconsistencies between the documents are stark and the Tribunal accepts are consistent with the applicant’s claim to be bogus documents.

100. The applicant has maintained that he is a stateless Faili Kurd. He maintained that position in his application for citizenship, and also maintained that his son was also stateless. It would appear that he has not submitted any of the bogus documents himself. His wife has signed and submitted her Partner Visa application. He was the sponsor, but did not sign the application form. He signed and submitted a Form 40SP, which required him to set out details of his relationship (he has always maintained that he is married), and his child (he has always maintained that he has a son). He also committed to provide for his wife and son financially. The Form 40SP does not require him to provide proof of the relationship and so the applicant, as sponsor, would not himself have submitted any of the bogus documents.
101. Given that the documents provided in relation to the partner visa application form are the only documents relied upon by the delegate in serving the NOICC on the applicant, and those documents have been accepted by this Tribunal to be bogus, then it is open to this Tribunal to accept that the claims made in his protection visa application stand and have not been discredited by the existence of the bogus documents.
102. The Tribunal is minded that the applicant has maintained his claims as to Statelessness whilst making his application for citizenship.
103. The Tribunal is concerned that the applicant has variously answered the question about whether he knew about the bogus documents being relied upon by his wife to make her partner visa application by stating that he wasn’t aware of them, or only did what his lawyer instructed him to do. The Tribunal believes that the applicant is stretching plausibility and incredulity in suggesting he knew nothing of the bogus documents, how they were sourced or that they were submitted in support of his wife’s partner visa application, especially given that he had taken legal advice in relation to what was needed to secure a Partner visa, that he advised his wife of the documents required, all the while knowing that certain of those documents did not, and could not have, existed. It gnaws at this Tribunal that the applicant might benefit from his participation in an apparent fraud on the Government of Australia. However, the Tribunal is satisfied that the applicant has not made any incorrect statements in his protection visa application, which is the question required of this Tribunal to consider.
104. It will be a matter for the Department as to how it treats the granting of the Partner Visa on the basis of the admissions made herein as to their bogus nature.
105. The Tribunal also notes that it will be a matter for the Department and the Minister as to how it assesses any future application for a Protection Visa by the wife and/or son in circumstances where bogus documents were previously submitted in support of a Visa Application.
106. It is for all of the above reasons, the Tribunal finds there was no non-compliance with s.101(b) by the applicant in the way described in the s.107 Notice.
Should the visa be cancelled?
107. For the reasons stated above, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
CONCLUSION
108. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
109. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa.
110. The Tribunal has no jurisdiction with respect to the other applicants.
Michael Hawkins
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.

[2021] AATA 1358

2 March 2021

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