1732113 (Refugee)

1732113 (Refugee) [2022] AATA 3927 (19 September 2022)
CORRIGENDUM
DIVISION:  Migration & Refugee Division
REPRESENTATIVE:  Mr Galen Jaffurs
CASE NUMBER:  1732113
COUNTRY OF REFERENCE:  Stateless
MEMBER:  Tamara Hamilton-Noy
DATE OF DECISION:  19 September 2022
DATE CORRIGENDUM
SIGNED:  9 November 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are     made to the decision:

At paragraph 11 of the decision, “10 May 2022” is to be replaced with “10 May 2011”; and At paragraph 13 of the decision, “19 April 2021” is to be replaced with “19 April 2012”.
Tamara Hamilton-Noy Member
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Galen Jaffurs
CASE NUMBER:  1732113
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Tamara Hamilton-Noy
DATE:19 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 19 September 2022 at 11:26am
CATCHWORDS
REFUGEE – protection visa – stateless/Iran – Faili Kurds – families expelled from Iraq when applicants very young – no social or civil rights, and harassment, threats, detention and beating – departed on false passports – husband’s citizenship and work – detailed, consistent and credible evidence from applicant wife and her brother, some vague, inconsistent and irreconcilable evidence from applicant husband – wife always undocumented, husband previously held registered refugee card, now expired – physical and mental health – country information – registered refugee cards no longer issued – no right to enter or reside in Iraq – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
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 dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants arrived in Australia [in] October 2010 on a boat codenamed [Code name] as unauthorised maritime arrivals ([ID 1] and [ID 2]).
The applicants requested a refugee status assessment on 12 February 2011 and this was refused on 10 May 2011.
The applicants’ matter was referred to Independent Merits Review and they participated in an interview with an interviewer on 8 November 2011. On 19 April 2012, the Independent Merits Reviewer recommended that the applicants were not owed protection.
The applicants applied for judicial review at the Federal Circuit Court [in] December 2012 and this application was withdrawn [in] September 2016.
The applicants applied for a Safe Haven Enterprise Visa on 20 February 2017 and participated in an interview on 24 November 2017.
On 6 December 2017, a delegate of the Department refused the applicants’ application for a Safe Haven Enterprise Visa.
The applicants made an application to the Administrative Appeals Tribunal on 19 December 2017 for an independent review of that decision.
Claims and Evidence
Evidence before the Department
In a form completed upon arrival to Australia, [the second named applicant] (the applicant wife) stated that she was born in Baghdad, Iraq, that she is a Faili Kurd and is stateless. She stated that she was married to [the first named applicant] (the applicant husband) in 1993.
For an IAAAS interview conducted on 12 February 2011, the applicant wife provided a written statutory declaration which stated that her family was expelled from Iraq when she was [Age] years of age because they are Faili Kurds and that her brother was taken by the army and killed by Saddam Hussein’s forces. After being expelled from Iraq, they spent some time in a refugee camp in [County] on the border between Iran and Iraq and that they eventually settled in a town called [Town] in [County], Iran, and stayed there illegally. They did not have any social or civil rights, could not occupy a government position or access medical treatment or education, and were discriminated against. She was stopped on several occasions by the Basij and was threatened and harassed. She stated she had left Iran because she did not have any rights, was discriminated against and her ethnicity was being destroyed. She stated that she does not have documents to prove she was born and, when she was married, was unable to register her marriage. The situation did not improve, she was in constant fear of her life and thousands of Kurds had been executed by the government in Iran. She fears that if she returns, she will continue to live a life of misery and discrimination, will fear for her life because she is Faili Kurdish and she is illegal in Iran and cannot return to Iraq. She believes the authorities will not protect her because she is female, stateless and a Faili Kurd.
On 10 May 2022, the applicants were found not to be owed protection in a Refugee Status Assessment decision. The assessor found that the applicants are stateless and formerly resided in Iran. The assessor found that the applicant husband was able to subsist during his time in Iran since being expelled from Iraq at [Age] years of age and that any discrimination faced does not amount to persecution. The assessor found that harassment of the applicant wife by the Basij was not systematic and discriminatory conduct amounting to persecution and that enforcement of morality laws by the Basij are laws of general application. The assessor found that, if returned to Iran, the applicants could continue to subsist in the manner they had previously subsisted in. The assessor was not satisfied the applicants have a subjective fear of persecution or that they fear persecution for a Convention ground.
The applicants were referred for an Independent Merits Review and participated in an interview with a reviewer as part of the review process.
On 19 April 2021, the reviewer recommended that the applicants were not owed protection. The reviewer found that the applicant husband is a Faili Kurd who was born in Iraq but found that he is an Iranian citizen on the basis of inconsistent information he had given about what card he had held in Iran, how he obtained his passport and how he was able to travel through Tehran airport. The reviewer did not accept the applicant husband had been detained and beaten by the authorities in Iran for three days as claimed or that his house was searched by the Basij. The reviewer accepted the applicant husband would face a level of discrimination as a Faili Kurd but did not accept that this would amount to persecution, or that he would be otherwise detained or executed because of his ethnicity or political opinion. The reviewer accepted the applicant wife is a Fail Kurd and that she was expelled from Iraq in 1980. The reviewer found that the applicant wife held a green card like other members of her family and that she was able to access Iranian citizenship when she married the applicant husband and that she left Iran on a genuine Iranian passport. The reviewer did not accept the applicant wife was at risk of harm as a Faili Kurd or as a woman in Iran. The reviewer accepted the applicant wife was harassed by the Basij on one occasion for her dress but did not accept she would face persecution in Iran from the Basij or as a failed asylum seeker.
On 20 February 2017, the applicants made an application for a Safe Haven Enterprise Visa. In the application they reiterated their claims to be stateless Faili Kurds who had been expelled from Iraq, to have faced adverse attention from the Basij, and to fear harm from the authorities upon return. On 22 November 2017, the applicants each provided a statutory declaration to the Department setting out details of their claims. Relevant parts of these are discussed further below.
On 6 December 2017, a delegate of the Department found that the applicant husband was not owed protection. The delegate considered it ‘more likely than not’ that the applicant husband is an Iranian citizen, born in Iraq. The delegate did not consider it plausible that the applicant husband’s family were deported from Iraq and found that they left voluntarily for Iran. The delegate considered it likely that the applicant husband and his family held cards in Iran given they had spent time at a government operated refugee camp. Given the applicant husband’s ability to work in Iran and to save a significant amount of money for his travel to Australia, the delegate found it plausible that the applicant husband is an Iranian citizen. Given inconsistencies in the applicant husband’s claims about the circumstances in which he was detained and beaten for three days, the delegate did not accept this claimed incident had occurred, or that the authorities had attended the applicant husband’s home four months later and held him and the applicant wife at gunpoint. The delegate accepted the applicant husband had been affected by the 2014 data breach incident. The delegate found that the applicant husband had been born in Iraq, that his father passed away when he was young and is buried in Iraq, that his family moved to Iran in 1967 to 1969 and were not expelled by the Saddam government, that they did not live in a refugee camp on the Iranian border, that he was not detained by the Basij and that he left Iran lawfully on an Iranian passport. The delegate accepted the applicant husband is a lapsed Shia Muslim and does not follow any religion. The delegate did not accept the applicant husband was at risk of serious harm or significant harm if returned to Iran.
The delegate, on the same date, found in a separate decision that the applicant wife is not owed protection. The delegate found that the applicant wife had obtained a passport in her husband’s family name which, if genuine, suggested that they had been able to register their marriage. The delegate found that the applicant wife was able to reside in Tehran for many years and to travel back to Ilam each year to visit her family without incident. The delegate considered that the applicant wife ‘probably’ has undeclared identity documentation which shows she is an Iranian citizen. The delegate did not accept the applicant wife’s family had not held identity documentation in Iran and considered that the applicant wife was an Iranian citizen. The delegate found that the applicant wife was born in Baghdad, Iraq, that her family were expelled from Iraq to Iran and were sent to a government run refugee camp and then to Ilam, that the applicant wife lived with the applicant husband in Tehran after marriage, and that she departed Iran lawfully on an Iranian passport The delegate accepted the applicant wife was also subject to the 2014 data breach. The delegate did not accept the applicant wife was at risk of serious harm or significant harm in Iran.
Evidence before the Tribunal
The applicants’ representative provided submissions to the Tribunal on 10 November 2021 regarding the difficulties the representative claimed the applicants would have in participating in a Tribunal hearing. A counselling report, dated 23 September 2021, was attached to these submissions and is discussed further below.
On 28 April 2022, the applicants’ representative provided written submissions to the Tribunal, statutory declarations prepared by each of the applicants and journal and media articles, all of which are referred to further below where relevant.
The applicants participated in a hearing at the Tribunal’s Melbourne Registry, on 5 July 2022 and in a resumed hearing on 15 August 2022. The Tribunal was assisted at the hearings by an interpreter in the Kurdish and English languages and the applicants were represented at the hearings. Their support person (their counsellor) was outside the hearing room for both hearings and the applicants were offered breaks during the hearings to speak to their support person.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that the most recent DFAT report for Iran is dated 14 April 2020. The Tribunal had regard to relevant parts of the report, as detailed further below.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants meet the alternative criterion in s 36(2)(a), (aa), (b) or (c) of the Act, that is, whether they meet the definition of ‘refugee’ or are otherwise owed complementary protection, or are a family member of an individual who meets one of these definitions. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference
The applicant wife has consistently claimed to have been born in Iraq and expelled to Iran as a young child, at around [Age] years of age. The Tribunal accepts the applicant wife’s claims as to her place of birth and the expulsion from Iraq and accepts that she resided in Iran from the time she was young until she left for Australia. The Tribunal finds that the applicant wife’s country of former habitual residence is Iran.
The applicant husband has also consistently claimed to have been born in Iraq and to have been expelled to Iran. The Tribunal accepts the applicant husband was resident in Iran from the time he was young until he left for Australia. The Tribunal finds that the applicant husband’s country of former habitual residence is Iran.
Representative submissions
The applicants’ representative submits that the applicants fear harm as undocumented Faili Kurds, stateless persons, Christians, Islamic converts and apostates, as outspoken opponents of certain practices and social norms, their actual and imputed political opinions, as returnees from a Western country and as elderly people with limited to no family support. The representative submitted that the applicants fear arbitrary arrest and detention, serious physical harm, interrogation, physical harassment, sexual harassment and ill-treatment and death at the hands of Iranian security forces, including the Basij and prison guards, and from members of the public.
Prior to the first hearing being held, the applicants’ representative provided written submissions to the Tribunal about the vulnerability of the applicants and the impact of this on their capacity to participate in the Tribunal’s hearing process. The representative submitted that the applicants are both vulnerable persons within the meaning of the Tribunal’s Vulnerable Person’s Guidelines, and that their mental capacity is limited, their memory and amount of time each can hold a conversation is limited and that their limitations in providing information had been noted by their counsellor in her report of 23 September 2021.
The counsellor’s report states that the applicant wife has received counselling since March 2015 and the applicant husband since November 2018. The counsellor states that both applicants have physical and mental health problems, and that the applicant husband is on medication for diabetes, depression, sleeplessness, high cholesterol, pain relief and high blood pressure. The report notes that the applicant husband’s mother and brother recently died of COVID-19 in Iran, his sister is in a coma due to COVID-19 in Iran and another brother died recently from other causes. The counsellor states that the applicant wife is on medication for sleeplessness, high cholesterol, anxiety and depression, and pain relief. The counsellor states that both applicants complain of headaches and memory loss and that both have symptoms consistent with post-traumatic stress disorder.
Given the matters raised by the representative and in the counsellor’s report, the Tribunal spoke to the applicant husband for only short periods of time before he indicated he was unable to continue answering the Tribunal’s questions. The Tribunal formed the opinion at the conclusion of the second hearing that it had enough information from the applicants to proceed to make a decision in this case. The Tribunal has proceeded to assess the applicants’ claims on the information before it contained in the Department file, written documents provided to the Tribunal and the information the applicants and their witness gave to the Tribunal at hearing. The Tribunal notes that the applicants have provided detailed statutory declarations to the Tribunal in support of their claims, in addition to the oral evidence they each gave to the Tribunal at hearing.
The applicant wife’s background

By way of background, the Tribunal notes that Faili Kurds are a sub-group of the Kurdish population in Iran, which makes up 10 per cent of Iran’s population. Most Faili Kurds originate from Iraq and, in Iran, typically live near the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion, their location and their dialect. Three main groups of Faili Kurds live in Iran: those who are Iranian citizens, those of Iraqi origin who are amayesh cardholders (registered refugees) and those who are unregistered, non-amayesh cardholders.[1] The colour of an amayesh has varied over the years. DFAT states that registered refugees from the 1980s until the end of 2001 held a green card, that white cards were issued prior to 1979 and from 2002 onwards and that pink cards were issued for an undefined period, probably in the 1980s.[2] In March 2010, DFAT advised that green cards could be exchanged for white cards for a fee and that, if a holder failed to renew a card before it expired, it was not possible to have it replaced. White cards that were not renewed annually were cancelled and could not be reinstated.[3]
[1] DFAT Country Information Report, Iran, 14 April 2020, at 3.23.
[2] DFAT Thematic Information Report, Faili Kurds in Iraq and Iran, 3 December 2014.
[3] DFAT, ‘Faili Kurds’, 18 March 2010.
DFAT states that Iran recognises many, but not all, Faili Kurds as refugees. Those who are registered as refugees are entitled to government services and other rights, whereas undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates. Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship, however, reports indicate that while many have applied, only a small number have succeeded in obtaining Iranian citizenship due to the lengthy and complicated process and the high costs involved.[4] An earlier article which indicated that Iranian citizenship had been granted to up to 100,000 Faili Kurds prior to 2003 was unable to be verified and DFAT considers it likely that the majority of Faili Kurds in Iran are registered as refugees.[5] In May 2010 DFAT advised – in relation to Afghani refugees in Iran – that although officially it would be possible to apply for citizenship, in practice it is extremely unlikely as an applicant must have legally resided in Iran for five years, must be in Iran, must be either highly qualified or have sufficient capital to invest in and run a business in Iran. DFAT noted at the time that green card holders did not meet this requirement even if they had resided in Iran for five or more years.[6] In October 2020, DFAT confirmed that this advice applied to Iraqi refugees as well, although noted at the time that the authorities were more tolerant of Iraqi refugees which may impact on citizenship determinations; and that Iraqis may otherwise be able to establish Iranian ancestry through the paternal line which would be an avenue to Iranian citizenship.[7]
[4] DFAT Country Information Report, Iran, 14 April 2020, at 3.25 – 3.26.
[5] DFAT Thematic Information Report, Faili Kurds in Iran and Iraq, 3 December 2014, p6.
[6] DFAT, Iranian citizenship’, 7 May 2010.
[7] DFAT, ‘Status of Faili Kurd refugees and documentation issued to them in Iran’, October 2010.
As noted above, the applicant wife has been consistent in her claims about her place of birth and about having been part of the mass expulsion of Faili Kurds from Iraq in the early 1980s. At the Tribunal hearing, the applicant wife stated to the Tribunal that she speaks Arabic, Kurdish and Persian and that she and her husband speak Kurdish at home, and her family spoke Arabic when she was growing up. The applicant wife told the Tribunal that she doesn’t know where her father was born, she thinks it is in Iraq. She stated her mother was born, ‘same as her’, in Iraq and she is not too sure when or where she moved to Iran and requested the Tribunal speak to her brother about her family’s background. She told the Tribunal that she does not know where her grandparents were born but it must have been Iran or Iraq and she thinks her grandfathers were born in Iraq. As to what documents her parents had in Iraq, she stated she hasn’t seen any documents herself and her brother asked and they had sent him a card. She gave evidence of not having held a card in Iran because it was not issued for women who had to stay home and have a marriage arranged for them. and described that her brother had held a card in Iran. She stated that at 12 or 13 years of age she had attended a place to learn some education and that she had been illiterate when she grew up.
The applicant wife told the Tribunal that her family moved to Iran when she was little, she thinks at [Age] years of age. She described the family’s circumstances in Iran living in tents and then moving to [Town] where they lived in a rented property. She gave evidence that she has a sister in Australia, a brother in Australia and two brothers and one sister in Iran, in [Town] close to the Iran-Iraq border. She gave evidence that she speaks to her family members in Iran one to two times per month. The applicant wife told the Tribunal that her father passed away when the family was expelled to Iran and that her mother is still alive and is living in [Town] with her brother.
The Tribunal asked the applicant wife to describe how Faili Kurdish celebrations in Iran were different to other Kurdish celebrations or to non-Kurdish celebrations. She described Kurdish clothes as being ‘longer’ and people gathering together to dance and participate in weddings. She stated that these were similar to Kurdish traditions as far as she knows. As to how she was identifiable as a Faili Kurd in Iran, she told the Tribunal that when they go to Iran people call them Iranians and when in Iran they were told they were Arabs.
The applicant wife’s brother, QN, gave evidence to the Tribunal at the first hearing. He gave evidence that his parents were born in Iraq but had ‘never told them clearly’ and that, as all Faili Kurds are born in Iraq, it must have been Iraq. He stated he does not know where his grandparents were born, his parents tried not to tell them for unknown reasons and they had not asked them very often. He gave evidence that the family had moved from Iraq to Iran when he was around [Age] years of age, and that one of their brothers had been executed after being stopped by the authorities. He stated that the family had stayed in a detention centre in [County] for a period of time, during which time his father had passed away. He stated that the family’s identification documents from Iraq were taken away before they were put in a car and taken to the border. QN gave evidence that the family was issued a green card at the detention centre in Iran but that the cards were not issued to anyone under 15 years of age, that their family members were issued green cards individually when they turned 15 which were required to be renewed every year and that his sisters were not issued cards because they ‘didn’t need to go out or to another city’ and so only the male members of the family held one. QN gave evidence that none of the family attended school in Iran.
QN gave evidence to the Tribunal that he had spoken to his older brother in Arabic, in Arabic and Kurdish with his mother and in Kurdish with his three sisters. As to whether he had spoken Kurdish or Kurdish Faili, he stated “Faili Kurdish, it’s Kurdish’. QN told the Tribunal that the family had moved to [Town] after the detention centre where they rented a house. He gave evidence that they had not owned a car and had not had a telephone connected. He stated that he and his wife and the two applicants had made plans to travel to Australia together and that they had sold every single thing they owned and borrowed a lot of money to cover the cost. He stated that all passports the four used were fake and that the smuggler had organised everything for them, but the passports had their own names and photos on them.
The Tribunal considered the applicant wife gave her evidence to the Tribunal at hearing in a credible manner. The Tribunal considered that QN’s evidence in response to the Tribunal’s questions was credible, detailed and consistent with the circumstances the applicant wife claims her family experienced in her early years. The Tribunal accepted from this evidence that the applicant wife is of Faili Kurdish ethnicity, was born in Iraq and was expelled from Iraq to Iran when she was around [Age] years of age rather than moving to Iran voluntarily. The Tribunal notes that these claims have been put consistently by the applicant wife and are consistent with country information about large numbers of Faili Kurds being expelled from Iraq at the time the applicant wife claims her family left Iraq for Iran. The Tribunal accepted that the applicant wife’s brother was killed during the crossing from Iran to Iraq and that her father passed away shortly after the family moved to Iran.
The Tribunal accepts that the applicant wife’s family lived in a government run refugee camp upon arrival in Iran. The applicant’s brother gave evidence that he had not obtained a green card until he was 15 years of age. The Tribunal was unable to find any specific country information referring to the age at which a card is able to be issued, although notes that a 2014 DFAT report refers to Iranian authorities issuing an amayesh ‘to a child born to an Iraqi refugee father who has a valid amayesh card’. The Tribunal is prepared to accept that, in circumstances where the applicant’s father passed away shortly after the family moved to Iran, this may have impacted the time at which the applicant’s brother was able to be issued a card.
In considering the applicant wife’s claims to have been an unregistered Faili Kurd refugee in Iran, the Tribunal has placed weight on the applicant wife’s brother’s evidence at the hearing that the applicant wife had not held a card in Iran as the female siblings in the family did not need to travel outside of the city. The Tribunal noted that that this evidence was consistent with the applicant wife’s previous written claims that she had never worked outside the family home because her family didn’t approve of women working outside the home.
The applicant wife’s ability to move between Tehran and Ilam to see her family causes some doubt for the Tribunal that she did not at any point hold an amayesh card. Similarly, her ability to leave Tehran through the airport with what was described as a false passport in her husband’s family name and with her photo on it causes some doubt for the Tribunal about her claimed status in Iran on the basis that country information from the time consistent with when the applicant wife left Iran indicates that it would be very difficult for an individual to leave through Tehran Airport on a false passport.[8] Other information, however, indicates that a large number of individuals believed to be on government watchlists had ‘slipped through’ the airport, suggesting some limitations to the mechanisms in place at Tehran Airport.[9] Further, country information as set out above which indicates that the majority of Faili Kurds in Iran are likely to be registered also causes some doubt for the Tribunal that the applicant wife was part of a small minority in Iran who had never obtained a registration card after their expulsion from Iraq.
[8] Denmark. April 2009. Danish Immigration Service. 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.
[9] Immigration and Refugee Board of Canada, Responses to Information Requests, Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini International airport; whether authorities alert border officials of individuals they are looking for; incidence of bribery of Iranian border officials to facilitate departure; the punishment for border officers caught taking such bribes (2009-October 2013).
However, having weighed up the totality of the information before it, and while having some doubts about the applicant wife’s claims, the Tribunal is prepared to accept, on balance, that the applicant wife was an undocumented Faili Kurd in Iran. The Tribunal notes that, if it is incorrect on this point, it is satisfied that at the present time the applicant is not documented in Iran because of the requirement to renew an amayesh annually and the cancellation of a card if this requirement is not met. Given this finding, the Tribunal diverges with the findings made by the Department delegate that, at the point at which she married the applicant husband, the applicant wife was able to register her marriage in Iran or that this provided a pathway to citizenship for her.
The Tribunal is prepared to accept that the applicant wife was able to access informal schooling for some five years in Iran and that she did not work while living in Iran. The Tribunal is prepared to accept the applicant wife’s written claims that she was harassed while in the street by the Basij on one occasion in Iran because of the way she was dressed, on the basis that this is consistent with reports of the Basij taking a strict approach to enforcement of dress codes.[10]
The applicant husband’s background
[10] DFAT Country Information Report, Iran, 14 April 2020, at 3.128.
While the Tribunal accepted the applicant wife as a generally forthright and credible witness, the Tribunal had more difficulty accepting the evidence of the applicant husband as credible, or of accepting that problems with his evidence were able to be explained by matters raised in the counselling report about his current functioning.
The applicant husband has, in his entry interview, refugee status assessment request and SHEV proceedings, claimed to have been born in Khainaqin, Iraq. In contrast to this, at hearing when asked where he was born, the applicant husband told the Tribunal that that he was born in Iraq and that, when his father passed away, his mother brought him to Iran as a child. When asked where in Iraq he had been born, he stated that he ‘doesn’t remember anything’. In response to further questions from the Tribunal about his background, he stated that he doesn’t asked where his father was born, and as to where his mother was born, he stated ‘trust me, I don’t know’. As to how old he was when he moved to Iran from Iraq, he stated he doesn’t remember, he was an infant. The Tribunal had some difficulty accepting that any of the matters raised by the applicant’s representative about his vulnerability would mean that the applicant would no longer be able to remember where he claims to have been born.
Further, the Tribunal notes that the applicant husband has given inconsistent and irreconcilable information about his status in Iran. The applicant husband told the Department in his entry interview that his family had held a white card but he himself had never held a card. At a refuge status interview, he initially told the interviewer that he had not held documents as they had been refused and later told the interviewer he had held a green card but it was confiscated and cancelled. Later, at the independent merits review interview, he told the reviewer that he had never held documentation in Iran and had never heard of a white card.
As noted above, the Tribunal found the applicant wife’s brother, QN, to be a credible and clear witness. Given the applicant husband’s presentation at the first hearing, the Tribunal asked QN about his understanding of the applicant husband’s circumstances. QN stated that his family had known the applicant husband’s family. He stated he knows that the applicant husband is Faili Kurdish like them and that the applicant held the same card as QN which allowed him to work but not to open a business. As to where the applicant husband was born, QN stated that he had known him since he married his sister and ‘noticed he was born in Iraq’.
The Tribunal has placed weight on QN’s evidence to the Tribunal at hearing, and on the applicant husband’s various accounts of having been able to maintain employment over a long-term basis in Iran (albeit his evidence has differed as to the industries he was able to work in). The Tribunal has also placed weight on the applicant husband’s long-term residence in Tehran in a rental property while maintaining employment, and on country information, set out above, which indicates that the majority of Faili Kurds in Iran are likely to be registered refugees. The Tribunal finds that the applicant was born in Iraq and moved to Iran as a child and that he held a green card in Iran which enabled him to work. Given the passage of time, the Tribunal accepts that the applicant husband’s green card has expired. Given the significant difficulties in obtaining Iranian citizenship in these circumstances, and while harbouring some doubts about the applicant husband’s ability to leave Iran on a false passport with his own details in it as set out in relation to the applicant wife above, the Tribunal does not find that the applicant husband is an Iranian citizen.
The applicant husband stated to the Tribunal that he had moved to Iran with his mother, three brothers who are now deceased and one sister. He stated that one brother and his mother passed away due to COVID-19, another brother died in a car accident and one brother had a stroke. He stated that his sister is living in Iran but he does not know where and he last spoke to her after he lost his mother and brother. The Tribunal is prepared to accept this evidence as correct.
The Tribunal notes that the applicant husband has also given inconsistent information, in his various statements and interviews, about his experiences in Iran. In his entry interview, he told the Department that he had never been arrested or had contact with intelligence or security organisations. In his RSA request, he claimed to have been arrested, beaten, tortured and whipped after swearing at the government. In his RSA interview he stated that he had had a discussion about Faili Kurds in the street and was taken by the Basij for three days and beaten. In contrast, at his independent merits review interview he told the reviewer that one Basij bumped into him in the street and he was taken after that. At his SHEV interview, he claimed to have been taken after requesting the Basij ‘let them be with Islam’.
Other discrepancies have occurred in relation to the applicant husband’s claimed contact with the Basij several months after his claimed detention. He raised for the first time at his RSA interview that the Basij had attended his house and reiterated this claim at his SHEV interview. In contrast, at the independent merits review interview, he told the reviewer that after his claimed detention by the Basij, he had remained quiet and had not had any further problems.
The extent of the discrepancies in the applicant husband’s accounts of his contact with the Basij in Iran, in addition to other concerns had about the applicant husband’s general credibility as outlined above, lead the Tribunal to not accept that the applicant husband was detained or mistreated by the Basij in Iran or that the Basij attended his house four months later. The Tribunal finds that the applicant did not experience any adverse attention from the authorities while living in Iran as a Faili Kurd holding an amayesh card.
Refugee claims
The Tribunal accepts that the applicants are a married couple and has accepted that the applicant wife is an undocumented Faili Kurd and the applicant husband a formerly documented Faili Kurd who has not updated his amayesh card every year as required for the card to remain valid. The Tribunal accepts that after marriage the applicants resided on a long-term basis in Tehran and finds that, if required to return to Iran, the applicants would return to Tehran where they previously lived and where the applicant husband worked.

The Tribunal accepts that, since residing in Australia, neither applicant has practiced the religion of Islam. The applicant wife told the Tribunal at hearing that she doesn’t believe in a religion, she just believes in God. She described having grown up as a Shia Muslim in Iran and having prayed and fasted but having stopped these practices at [age range] years of age. The applicant wife stated that she has not attended any religious places of worship since arriving in Australia and that she no longer prays since arriving in Australia. Later in her evidence to the Tribunal, the applicant wife described her brother (who resides in Australia and to whom the Tribunal spoke) as having converted to Christianity and gave evidence that she has ‘some interest;’ and that she goes to church occasionally, likes it and is interested in it. When asked about her earlier evidence that she has not attended any places of worship in Australia, the applicant wife stated she thought the Tribunal had been talking about mosques. When asked about her church attendance in Australia, the applicant wife stated that she attends [a] church with friends and that she goes separately to her husband and his friends. She stated she had last attended two weeks before the first Tribunal hearing. The Tribunal is prepared to accept from this evidence that both applicants have attended church since residing in Australia.
The Tribunal is prepared to accept the information provided in the counsellor’s report that both applicants are on medication for a range of mental and physical health conditions. The Tribunal is prepared to accept both applicants are taking a range of medication and are both under the care of a counsellor.
The applicant husband gave evidence at the hearing that he is not working in Australia because of a bad back, because of the effects of his diabetes and because of having panic attacks while in public. The applicant wife gave evidence that she is working one day a week assisting another female with cooking. The Tribunal is prepared to accept this evidence as correct.
DFAT states that Iran has a longstanding policy of not accepting involuntary returns and historically has refused to issue temporary travel documents to facilitate the involuntary return of its citizens from abroad.[11] As involuntary Faili Kurd returnees without valid amayesh cards, the applicants would not be assisted by the IOM packages made available to voluntary returnees.[12] They would be required to return on a laissez-passer, which would lead to questioning at Tehran airport about the circumstances of their departure. This is a process described as usually taking between half and one hour, but as taking longer if a returnee is evasive or a criminal history is suspected. DFAT states that arrest and mistreatment are not common during the process.[13]
[11] DFAT Country Information Report Iran, 14 April 2020, at 5.27.
[12] DFAT Country Information Report Iran, 14 April 2020, at 5.28.
[13] DFAT Country Information Report Iran, 14 April 2020, at 5.29.
As individuals who had left Iran without a valid passport or travel document, the applicants would face imprisonment and/or a fine under the Penal Code. The UK Home Office has assessed 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.[14] The Tribunal is prepared to accept that the mental health of both applicants would mean they would find the interview process at the airport difficult and stressful, but does not accept that they face offences other than illegal departure that would make imprisonment likely upon return to Iran.
[14] DFAT Country Information Report Iran, 14 April 2020, at 5.44.
The Tribunal accepts that neither applicant would hold a valid amayesh card if they return to Iran and therefore that the applicant husband’s circumstances, in particular, would be different to his circumstances when he last resided in Iran. No new amayesh cards have been issued since 2007,[15] and the applicants would therefore have no avenue to obtain an identification card upon return to Iran. The applicants’ undocumented status would mean that they would face a denial of access to services including access to accommodation, transport, mobile phone and utility accounts, while access to health care would be possible but would require payment without drawing on health insurance.[16] They would also face a denial of the right to work,[17] or to movement within Iran.[18] DFAT states that ethnic minorities face official and societal discrimination,[19] and the Tribunal finds that, as non-amayesh holding residents of Iran, the applicants would face increased vulnerability to harassment and detention by authorities. The Tribunal finds that the harm feared by the applicants includes significant physical ill-treatment, significant economic hardship that threatens their capacity to subsist and denial of access to basic services and capacity to earn a livelihood, where these denials threaten the applicants’ capacity to subsist. The Tribunal finds that the harm feared by the applicants amounts to serious harm within the meaning of s 5J(5). The Tribunal is satisfied that the range of harm feared is systematic and discriminatory and is for reasons of the applicants’ status in Iran as undocumented Faili Kurd refugees.
[15] DFAT Country Information Report Iran, 14 April 2020, at 3.166.
[16] DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014 at 3.57.
[17] DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014, at 3.64.
[18] DFAT Thematic Report, Faili Kurds in Iraq and Iran, 3 December 2014, at 5.15.
[19] DFAT Country Information Report Iran, 14 April 2020, at 3.4.
The Tribunal finds that, given the state’s role in discriminatory measures against undocumented Faili Kurds, the risk of harm to the applicants relates to all areas of Iran. For the same reasons, the Tribunal finds that the applicants do not have access to effective protection measures in Iran.
The Tribunal finds that the applicants have a well-founded fear of serious harm in Iran, if they return now or in reasonably foreseeable future, as undocumented Fail Kurd refugees. For this reason, the Tribunal has not gone on to consider other claims raised by the applicants before the Tribunal.
As the applicants were both born in Iraq, the Tribunal has considered whether the applicants have a right to enter and reside in Iraq. The Iraqi Nationality Law (2006) provided an avenue for individuals to regain Iraqi nationality and many Faili Kurds are reported to have had their Iraqi nationality reinstated under this law. However, this process is reported to be slow, bureaucratic and to take years to complete, often involving bribes to officials. Documentary requirements are described as onerous and include a requirement to provide registration from the 1957 census in addition to other documents that Faili Kurds are likely to possess. While the Iraqi government has claimed largescale citizenship conferred on Faili Kurds under this Act, community activists have claimed that thousands of families remain stateless.[20]
[20] DFAT Country Information Report Iraq, 17 August 2020, at 3.10.
The Tribunal finds that neither applicant has registration from the 1957 census. Both applicants’ fathers are deceased and the Tribunal finds that neither would have access to the documentation required to re-establish recognition of nationality in Iraq. The Tribunal finds that neither applicant has a right to enter and reside in Iraq or any other third country. The applicants are not excluded from Australia’s protection by operation of s 36(3).
For the reasons given above the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations and that they satisfy the criterion set out in s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3927

19 September 2022

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