1813868 (Refugee)

[2019] AATA 6535

1813868 (Refugee) [2019] AATA 6535 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813868

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Sean Baker

DATE:2 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2019 at 1:55pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Stateless – Faili Kurd – identity – false passport under different name – legal change of name in Australia – date of birth – legislative amendment – cancellation if Minister not satisfied of identity – onus on Department to provide rationale for failure to be satisfied as to identity – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1AA)

CASES

Ngaronoa v MIAC (2007) 244 ALR 119

Zhao v MIMA [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

1. This is an application for review of a decision dated 4 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1AA) on the basis that the delegate was not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 11 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   s.438(1)(b)

5. On the Department file there is purported notification that a document on the file was given to the Department in confidence – s.438(1)(b).

6. This is incorrect because the folios referred to are internal Department documents (the identity assessment report), and therefore were not given to the Department in confidence. I find therefore that s.438(1)(b) does not apply to these folios.

7. I notified the applicant and his representative of the existence of the notification and gave the representative a copy of the notification. I indicated that I considered the relevant information in these folios had been provided in the NOICC, but that if there was further information required, I would provide this under s.424AA or s.424A. As per below, this was not necessary. The applicant and representative did not make any submissions.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

9. It is helpful to set out a chronology of events in relation to the applicant:

   [In] May 2010 the applicant first arrived on Christmas Island as an unauthorized maritime arrival.

   On 15 June 2010 the applicant attended an entry interview with a delegate of the department on Christmas Island.

   On 14 August 2010 the applicant made a request for a Refugee Status Assessment (RSA).

   On 17 August 2010 the applicant attended an RSA interview.

   On 21 September 2010 the RSA found the applicant was not a person to whom Australia had protection obligations; because the delegate was not satisfied the applicant met the definition of a refugee.

   On 25 October 2010 the applicant requested an Independent Merits Review (IMR) of the above decision.

   On 24 June 2011 the IMR delegate found the applicant was a person to whom Australia has protection obligations.

   On 11 July 2011 the Minister lifted the bar to allow the applicant to lodge an application for a Protection visa.

   On 13 July 2011 the applicant lodged an application for a Protection visa (class XA subclass 866).

   On 20 July 2011 the applicant was granted the protection visa in the name of [Mr ZA].

   On 31 August 2012 the applicant notified the Department that he changed his name from [Mr ZA] to [Mr YB].

   On 12 October 2015 the visa holder lodged an application for Australian Citizenship. On 19 September 2016 the applicant attended an identity assessment interview, in relation to this application. The Identity Assessment report was completed on 3 October 2016.

   On 8 January 2018 the Department issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant.

   On 13 February 2018 the applicant’s representative provided a response to the NOICC.

   On 4 May 2018 the Department cancelled the applicant’s protection visa as per s116(1AA) as he or she was not satisfied of the applicant’s identity.

   On 27 April 2018 an application for review of the above decision was lodged with the Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal).

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

11. Section 116(1AA) only applies to visas held on or after 11 December 2014. It permits cancellation of a visa if the Minister is not satisfied as to the visa holder’s identity. The Explanatory Memorandum to the legislation inserting s.116(1AA) provides the following example: two or more documents or pieces of information about a person’s identity have been given by, on behalf of, or in relation to the visa holder and it is not possible to form a conclusion regarding which document or piece of information is genuine.

12. Departmental policy states that this provision may be used in situations where contradictory or conflicting identity information about a visa holder has been provided, and the correct identity information is not known, and indicates that this ground should be used only if the delegate is not satisfied as to the holder’s correct identity. Policy underscores that if a decision maker is satisfied as to a visa holder’s identity, the visa cannot be cancelled under this provision. Policy goes on to give an example where the provision may apply, where a person obtains a visa under one identity and then applies for another visa under a different identity, and photo analysis indicates the photographs to be highly likely to be the same person, and the delegate is uncertain as to which identity (if either) is the visa holder’s correct or true identity, this provision may be used to cancel the visa.

13. In this case, the Department’s concerns around the applicant’s identity stem from investigations which led the Department to be concerned the applicant had not disclosed associates, possibly family, living in Australia and because he changed his name in August 2012. The Department interviewed the applicant and came to the view that he could not provide compelling explanations for these concerns, nor could he adequately explain his claimed experiences as a claimed stateless Faili Kurd.

14. In my view, and applying the relevant case law, the very serious consequences of cancelling a person’s permanent visa such as in this case must be based on appropriate findings or inferences of fact which are supported by probative material and logical grounds and evaluated and weighed reasonably.[1] I note that where the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister.[2] I appreciate that s.116(1AA) is framed as a lack of satisfaction as to the person’s identity, but it is my view that to be established there must be a sensible and intelligible basis for the lack of satisfaction as to the identity. Framed in another way, I consider that it is still incumbent on the Department, or the Tribunal on review, to provide a basis or rationale for the failure to be satisfied as to the identity.

    [1] Ngaronoa v MIAC (2007) 244 ALR 119 upholding Ngaronoa v MIAC [2007] FCA 1565; Briginshaw v Briginshaw (1938) 60 CLR 336.

    [2] See Zhao v MIMA [2000] FCA 1235, at [25], [32]-[34]. See also Mian v MILGEA (1992) 28 ALD 165 at 169 and Jasbeer Singh v MIEA (1994) 127 ALR 383 per Sackville J at [14].

15. I have set this matter aside because of my findings that there is no basis to disbelieve the applicant is not who he has claimed to be. The decision record includes the conclusion of the identity officer that ‘it is highly likely the visa holder’s true name is [Mr ZA].’ At no point is another identity raised or discussed in the decision or any of the material before me. This is at all times the identity the applicant has presented to the Department from his arrival in Australia until he changed his name by a process recognised under Australian law to [Mr YB], a change which he declared to the Department.  

16. It is relevant to note that the applicant’s identity as [Mr ZA] (DOB [date 1]) was accepted at the time of the grant of his protection visa.

17. This is therefore not a situation such as that envisaged in the Explanatory Memorandum; there is no contradictory or conflicting information about the identity of the applicant that is known. Nor is it the case that there is contradictory or conflicting identity information known to the Department or the Tribunal. This is not a case in which there are differing identity documents.

18. There are concerns, some of them possibly legitimate, that the applicant has not been truthful about his status as a stateless person, and about his relatives or associates in Australia. Do these concerns go to identity? They do not. I find that these are concerns of the applicant’s status (as stateless or a national of Iran, as someone who has family in Australia or who does not). These are characteristics which may change over a person’s life. A person’s identity, as I understand it, is those immutable things, such as their name, date of birth, place of birth, which remain fixed or relatively stable over their lives. Questions of a person’s status, as holding this or that nationality, having family inside or outside Australia, do not go to the applicant’s identity. Such concerns are not a basis for cancellation under this ground.

19. There are however, two matters - the question of the applicant’s birthdate and the name he has claimed was on his false Iranian passport. These are both, squarely, questions of identity. But in both cases I have found, discussed in more detail below, that the reasoning of the Department is based on false premises or an incorrect reading of the information. For reasons discussed in more detail below, I do not accept that the applicant has at any stage represented himself as having a different birth date, nor a different false name on his passport.

20. The applicant has consistently represented himself as [Mr ZA] until he changed his name – his identity has remained fixed in this regard from his arrival in Australia. On the basis of my findings below, he has consistently represented himself as having the birthdate he provided on his arrival to Australia. On the basis of the findings below, he has consistently represented himself as having held a false passport in the name [variation of Mr ZA].

21. Having carefully considered the material before me, I find that there is no intelligible basis to conclude that the applicant holds a different identity or that his identity that he has consistently presented to the Department and Tribunal is not his true identity. I find, on the basis of the reasoning above, and that provided in more detail below, that I am satisfied that the applicant’s identity is [Mr ZA], born [date 1] in Iran, and who has changed his name by a process legally recognised in Australia to [Mr YB].

22. I have gone on to consider the important concerns raised by the Department decision – the name on the false passport and the applicant’s provision of his birth date below. For completeness I have also addressed the other concerns raised in the Department decision.

    Name and date of birth

23. The Department decision notes that open source information indicates that the word ‘[B]’ is considered pertaining to or associated with Iran and this is what the applicant changed his name to. It is, I think, far-fetched to suggest the applicant chose this name as a marker of his Iranian nationality or for some related reason.

24. The Department was concerned that the applicant claimed not to be aware of his exact birth date, and that in his UNHCR consent form he provided his date of birth as [date 2], the decision notes that the applicant suggested during the interview that this is incorrect, however, the decision goes on, the rest of the information the applicant provided on this form is consistent with other information that he had provided to the Department. I note that apart from errors which the identity officer accepted were clerical errors on the part of the Department, the applicant has been consistent with his birth date apart from the UNHCR form. I note also that the UNHCR form is completed at around the time of entry to Australia and the applicant would have been assisted by an agent to do this. It is not inconceivable, indeed, it appears to me likely, that in an environment with a large volume of UMAs the agent transcribed the wrong date whilst retaining the rest of the information. But perhaps of more relevance is the question of why this appears to the Department not to be inadvertence – it is not put forward in the decision nor is it clear what benefit the applicant would have gained from providing a differing birth date – there is no suggestion that he has been registered with the UNHCR under either of these birth dates on Department systems. At the hearing the applicant appeared not to recognise this form and I consider this consistent with it having been prepared by the IAAAS agent, with minimal input from the applicant. I understand the concern that the applicant appears not aware of his exact birth date, but this would appear to strengthen his claim to be undocumented – in this regard, I note that when the date he has provided in the Gregorian calendar is converted to the Persian calendar it is 1/1/[year] – and I note that such dates are often assigned to people who do not know their exact birth day – which is what the applicant has told the Department. At the hearing he said that his mother had told him this was his birth date ‘as he was born early in the year.’ Indeed, the applicant appears to have been remarkably consistent in his claims about his birth date and his level of knowledge of the exact date.

    Claimed life in Iran

25. The Department was concerned that many of the answers the applicant had given about his early years conflicted with information he had previously given to the Department. The inconsistencies, I find, were not material inconsistencies and can be explained, indeed, I consider are likely to be the result of the applicant being a minor at the time of many of the events, and to the passage of time between him giving information to the Department.

26. The Department appears concerned that the applicant did not provide an explanation of his parents’ expulsion from Iraq and their conditions in Iran that was consistent with country information. Given the applicant was not born and was then a baby during this time period, the Department appear to be drawing a negative inference from the applicant’s recollection of events he would only have heard about, not been able to remember directly experiencing. I do not consider it reasonable to draw a negative inference in such circumstances. 

27. The Department was of the view that, as his maternal and paternal grandparents were born and resided in Iran before they resided in Iraq, that this meant the applicant’s ancestry was Iranian and that country information states Faili Kurds who could prove their Iranian ancestry were able to obtain Iranian citizenship. However, I note that the contemporaneous DFAT thematic report sets out that:

    DFAT has previously been advised that Faili Kurds who can prove Iranian ancestry (through the paternal line) would be eligible for Iranian citizenship. However, credible contacts assess that only a very small number of Iraqi refugees would able to establish Iranian ancestry. In 2010, DFAT was told that documents other than official identity documents would be considered by Iranian authorities in decisions on citizenship applications, but that it would be extremely hard to establish Iranian ancestry using these documents. While some Faili Kurds might have Iranian ancestry, if their ancestors did not register with Iranian authorities at the time, establishing this ancestry would be difficult, if not impossible.[3]

    [3] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014, 3.25.

28. This country information appears to me to indicate that gaining Iranian citizenship in the manner suggested by the Department would not be simple or straightforward, and may in some cases be practically impossible.

29. I am not sure what the writer had in mind when noting that both Iran and Iraq issue multiple identity documents. As has been noted numerous times, statelessness is often linked to an official or officially condoned refusal to issue identity documents to those not recognised.

30. The applicant has been vague about his family composition and his early life. This may be an effort to conceal his circumstances, but it may also be the product of time and poor memory.

31. The Department were concerned about the applicant’s claims that his parents did not hold a marriage certificate because country information indicates that this would have been an issue if his parents were stopped by the Basij. I note that country information about the role and behaviour of the Basij tends to focus on their behaviour in urban areas. I note also that it is very likely that the behaviour of the Basij, a paramilitary force, which is not a professional military organisation and would be likely to have regional variations in how they policed the Iranian population. I do not find it inherently implausible that, in the region the applicant claims to have lived in, which is isolated and rural, there would be a differential response of the authorities on matters including identity documents or marriage documents. I note there is support for this proposition in the above mentioned source, which states that ‘Sympathy from low-level local officials such as policemen might also lead to a lower level of official attention in those provinces.’[4]

    Name on passport

    [4] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014, 3.66.

32. The Department was concerned that the applicant had provided two names that were on his ‘false’ passport – he gave the name [Mr ZA] in his entry interview but in his identity interview said that the passport had been in the name [variation of Mr ZA].

33. This would indeed be significant, and may indeed indicate that there were some doubts about the applicant’s identity. However, I note that the submission from the applicant’s representative states:

    The delegate noted that, ‘The visa holder maintains his true name prior to the amendment to [Mr YB] was [Mr ZA] and is the name he was known by in Iran. After initially stating in his Entry Interview that he used the name [Mr ZA] in his ‘false’ Iranian passport to travel to Australia, the visa holder admitted in his Identity Interview that he departed Iran with a passport issued in the name [variation of Mr ZA]. The visa holder’s representative has now stated the visa holder was known in Iran as [Mr ZA].’

    We note that the delegate was misunderstood in relation to our client’s name and the name used in his false Iranian passport. At the Entry interview, our client was asked about the details of passport used to leave Iran. He responded, “The passport was given to me by [deleted] in Tehran. It had my photo but different name. The name on the passport was ([variation of Mr ZA])’ [brackets in original]. We submit that the delegate wrongly accused our client of stating that he used the name ‘[Mr ZA]’ at the Entry Interview. Our client has always maintained that he was known as [Mr ZA] in Iran.

1. Having reviewed the transcript of the Entry Interview on the Departmental file I accept this submission. At folio 51, Df [file number], the written record of the entry interview indicates that at that time the applicant said he had departed Iran on a false passport in the name [variation of Mr ZA]. It does appear to me therefore that the delegate has misunderstood what the applicant said at his entry interview.

   Departure

2. The Department were concerned with the applicant’s claim that he was able to depart Iran through the airport on his false passport with the assistance of the smuggler, noting that country information indicates that if the applicant was using a fraudulent passport, it was highly likely that Iranian officials would have been alerted in this instance.

3. However, there is country information which supports that corruption is endemic in all sectors of the Iranian economy and across society. In particular I note that Transparency International ranked Iran 131 out of 176 countries in its annual corruption perceptions index.[5] There are reports of bribery being at least possible to exit the Tehran airport with fraudulent documents.[6] It is therefore at least plausible that the applicant departed Iran in the manner claimed. Indeed this is also supported by the next concern raised in the delegate’s decision, that the amount paid by the applicant was too low because of country information that ‘bribes at Tehran airport cost between 8, 000 to 10, 000 Euros.’

   [5] DFAT Country Information Report, Iran, 7 June 2018, 2.15.

   [6] Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 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) [IRN104624.E], 21 October 2013,

4. The decision takes issue with the applicant’s family composition as being too small, and notes this is highly unusual in Kurdish families. There are numerous explanations for this – the applicant’s mother may have been unable to have further children for example. This may be a fact not shared or known by the applicant, or he himself may have been reluctant to share this information.

   Associates in Australia

5. Finally, the decision raises the concerns which appear to have led to the identity interview – the fact that the applicant appears to have contact with a number of people, including one person who is suspected of being his paternal cousin. The evidence for these linkages appears scant to me, and poorly organised in the identity report, the facial comparison does not appear to me to indicate a marked resemblance, the use of particular names may be coincidental, and it is unclear how the claimed relationships have been established and on what basis, if at all. There is mention of numerous other persons who the applicant is in contact with, some with the name [surname A] who have strong Iranian links. There is a suspicion the applicant may be related to these persons. At hearing the applicant was not forthcoming, he said these people were friends, some of whom he met in detention, and were from the same area, but it was not a small area. These linkages do raise legitimate concerns. But that is all. They do not reach the level required to form probative evidence of a differing identity for the applicant. Applying the Briginshaw principle, which I consider appropriate in a case of such significance that the Department contemplated, and then chose, to cancel a person’s permanent visa, these concerns are not sufficient to ground cancellation powers on their own, even such a power that raises the non-satisfaction of the decision maker.

6. I have carefully considered all of the evidence I have before me, including the identity interview and Department decision, the submission of the applicant’s representative and the evidence of the applicant at hearing. I find, on the material before me, that I am satisfied that the applicant’s identity is [Mr ZA], born [date 1] in Iran, and who has changed his name by a process legally recognised in Australia to [Mr YB]. There is therefore no basis to ground the cancellation power in this case.

7. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

8. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   DECISION

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

   Sean Baker
   Member

   
   

   Legislation extract – Migration Act 1958

   116Power to cancel

   …

   (1AA)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

   …

   (2)The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC)if there exist prescribed circumstances in which a visa is not to be cancelled.

   (3)If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

   …