1833543 (Refugee) - [2021] AATA 2450

1833543 (Refugee) [2021] AATA 2450 (12 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1833543
COUNTRY OF REFERENCE:                   Iraq
MEMBER:John Cipolla
DATE:12 May 2021
PLACE OF DECISION:  Sydney
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 12 May 2021 at 8.21am

CATCHWORDS
REFUGEE – protection visa – cancellation – incorrect information – Federal Circuit Court remittal – stateless Arab Iraq – Iranian ancestry – expelled to Iran in 1980 – Iraqi identity card and passport fraudulently obtained – Australian citizen wife and children – best interests of children – no non-compliance – discretionary factors favour non-cancellation – decision under review set aside
LEGISLATION
Migration Act 1958, ss 101-107, 109(1)
Migration Regulations 1994, 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
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 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 the delegate formed a view that the applicant had provided incorrect information in his protection visa application that he was stateless and concluded that the applicant was in fact an Iraqi citizen. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The matter was dealt with by a differently constituted Member of the AAT in 2016. That Member in a decision made in November 2016 affirmed the decision of the Department, finding that the applicant was not stateless as claimed and that he was in fact an Iraqi citizen. That Member also decided after considering prescribed grounds that the visa should be cancelled.
The applicant appealed that decision to the Federal Circuit Court of Australia, who determined that the previous Tribunal Member had made an error of law in the review. The basis of the error was that the Tribunal had relied on three key pieces of evidence to find that the applicant was in fact an Iraqi citizen and not stateless as claimed. That evidence was an Iraqi ID card which noted the applicant’s place of birth as being Karbala Iraq, a passport that noted the applicant’s place of birth as being Karbala Iraq and a marriage certificate, which the Tribunal erroneously stated listed the place of birth as Karbala Iraq, when it in fact did not list a place of birth. The Federal Circuit Court noted that the previously constituted Tribunal had relied upon a document to make key adverse findings (the marriage certificate) when there was no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2450
Decision Date: 12 May 2021

CaseChat Overview and Summary

The decision reviewed concerned an applicant for a protection visa whose visa had been cancelled. The applicant claimed to be a stateless Arab of Iranian ancestry, expelled to Iran in the early 1980s, and asserted that his Iraqi identity card and passport were fraudulently obtained. He also highlighted his Australian citizen wife and children, and the best interests of those children. The core dispute revolved around whether the applicant had provided incorrect information in his visa application and whether the cancellation of his visa was warranted.

The court was required to determine whether the applicant had failed to comply with his obligations under the Migration Act 1958 (Cth), specifically by providing incorrect information, and whether the cancellation of his protection visa was a lawful and appropriate exercise of the delegate's discretion. This involved assessing the veracity of the applicant's claims regarding his place of birth, his statelessness, and the circumstances under which his Iraqi documentation was obtained, as well as considering the best interests of his Australian citizen children.

The Tribunal found that the applicant had not provided incorrect information and had complied with his obligations under section 101(b) of the Migration Act. It reasoned that the applicant's Iraqi identity card and passport were indeed fraudulently obtained, as he had claimed, and that his true place of birth was Iran. The Tribunal accepted evidence suggesting his parents were married in Iran during the Iran-Iraq war, making his claimed birth in Iraq during that period illogical. Furthermore, the Tribunal considered the applicant's Iranian family card and his sister's Iranian identity card as strong indicators of his Iranian birth. The Tribunal concluded that the applicant was a credible witness and that the delegate had erred in her assessment and assumptions.

The Tribunal set aside the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 In the interests of completeness, the Tribunal will set out the evidence that has been provided by the applicant at various points in time, with regard to his protection visa application, and with regard to the respective cancellation proceedings.The Christmas Island interview The applicant was interviewed by a Departmental officer on Christmas Island on 21 July 2010. The interview notes indicate that the interview commenced at 1:30pm and finished close to 4:30, an interview of close to 3 hours’ duration. The interview notes indicate that the interview was conducted with the assistance of an interpreter of Arabic and the interview was recorded. The applicant was cautioned that any person found to “obstruct, hinder, deceive or mislead an officer in the course of their duty” was liable to penalties including imprisonment. The applicant provided his name and date of birth as being [date]. The applicant stated that he was born in Esfahan Iran. The applicant claimed that he was stateless. The applicant stated that his parents were deported from Iraq to Iran in the early 1980s. The applicant was required to provide details of addresses in which he had resided during the last 20 years. The applicant stated that from the time of his birth until 1992 he resided in Esfahan but could not remember the exact address. The applicant advised that between 1992 and 2004 the family lived in three addresses in Esfahan in Iran. The applicant advised that between 2004 and 2007 the family lived in Karbala in Iraq. The applicant advised that between 2007 and 2010 the family returned to Iran and once again resided in Esfahan. The applicant provided details of the addresses in Esfahan from 1992 up until the time of his departure from Iran in 2010. The applicant was asked about any identity documents, passports, military or other papers which could prove his identity. The applicant stated that he held a green card when he was residing in Esfahan, but he claimed that the green card went missing when the family relocated to Iraq. The applicant was asked about his education history and the applicant stated that between 1992 and 2001 he attended school in Esfahan Iran. With regard to his employment history the applicant advised that from 2005 to 2006 he worked in a shop in Karbala in Iraq, that from 2007 to 2009 he worked illegally for a [business] in Esfahan and was involved in [tasks]. From 2009 until 2010 the applicant worked [in another business] in Esfahan for a period of six months until his departure. The applicant stated that he was a Shia Muslim and that he was from the Iraqi Arabic ethnic group. The applicant provided details of his father and his mother noting that at the time of the interview in 2010 they were both resident in Esfahan as were his [siblings]. The applicant was asked why he left his country of nationality. The applicant advised that with regard to Iran “I didn’t have citizenship I have green card and they were targeting us because of the work, and we were deprived of our human rights. There was racism over there sometimes they used to call us ‘Arab Sadaam.’ After the fall, let’s go back to Iraq, we went back to Iraq in 2004 and lived there for a while, my father attempted to obtain citizenship he was advised that there was no record for you in the registry. We stayed for a while the community didn’t respect us, we were called ‘Iranian Incomers,’ we didn’t have documents, we didn’t have citizenship so we had difficult life and hardship. Over there anywhere you go you are asked to present citizenship ID which we did not have. My father spoke to a solicitor in order to help him get his Iraqi citizenship following enquiries he was advised there are no records of you. The circumstances were worse than Iran. My father said I don’t want to risk your life here, let’s go back to [Iran] as a result of that we returned to Iran to live. In Iran we did not have permission to work and worked illegally and hiding from officials. While we are at work, if any government official turns up we have to hide. It was difficult to earn income, I didn’t have any future over there – cannot get married, I realised my life was in danger, didn’t have regular work or job. To rent a house you need citizenship docs. When you enquire with the government and say you were born in Iran the answer will be that your mother and father do not have citizenship so I had no future over there. I borrowed money to finance my travel so I would be able to build my future.”Departmental assessment of applicant’s 866 protection visa application

Decision

Reasons for decision

The ITOA concluded that the applicant was an Iraqi citizen and that his Arabic ethnicity would not cause the applicant to be persecuted in Iraq. The assessment concluded that the applicant, on the basis of the evidence, would not be considered to be stateless.The AAT decision of 9 December 2016 The previously constituted Tribunal conducted a review hearing on 25 November 2016. The Tribunal during the course of the hearing, made reference to the Iraqi identity card, the Iraqi passport and the marriage certificate pertaining to the applicant which showed the applicant’s place of birth to be Karbala Iraq and not Esfahan Iran. To rebut this the applicant stated that he had provided with his protection visa application green cards to show that his place of birth was in fact Iran. When the applicant was questioned by the previous Tribunal about the Iraqi passport and the Iraqi identity card “the applicant stated that they were both obtained through bribery and that this was not in his control. He reiterated that the ID card was obtained when he was in Australia and not in Iraq and accordingly it must be fraudulent. He debated with the Tribunal how he could possibly obtain a genuine Iraqi ID card when he was in Australia at the time. He stated that he was telling the truth and that all those three documents do not contain accurate information. He said his father paid a bribe and obtained the ID card and that is all the information he has. The Tribunal asked the applicant if he knew how the passport was obtained and he stated that the passport was obtained on the basis of the Iraqi identity card, and consequently, the passport also contained incorrect information.” The applicant also made reference to documents that he had provided in support of his protection visa application indicative of the fact that he was born and educated in Iran. The previous Tribunal also questioned the applicant about whether he experienced any harm when he returned to Iran and Iraq. The applicant stated in response that he “felt danger all the time.” The applicant could not refer to any specific incidents of harm in Iraq stating that he was not in Iraq for a long period of time and would have been in danger if he had been caught. The applicant also gave evidence that speaking in broken Arabic was problematic. The previous Tribunal makes reference to submissions that were dated 14 October 2016. That decision record cites those submissions in which the following points were made:The applicant’s Iraqi identity card was fraudulently obtained by his father and that it is a bogus document which does not accurately reflect his true place of birth. The applicant used fraudulent identity card to obtain an Iraqi passport whilst he was in Iraq. However, the delegate was not satisfied that this was a bogus document because according to departmental information, Iraqi passports in particular the “A” series passport is of an international standard and compliant with good security features. The applicant was in Australia when the identity card was issued and therefore it must be bogus. Information can be obtained from the Iraqi authorities that personal IDs are only issued when the applicant is present before an authorised officer. The card was issued in Iraq while the applicant was in Australia.The applicant was issued with an Iraqi passport under a different identity to travel to Iraq to get married without the Iranian authorities detecting his actual identity. The delegate gave little weight to this claim as both passports have the same forenames and date of birth. The Iranian marriage certificate shows that the applicant presented his Australian Titre de Voyage for registering his marriage. This indicates that the applicant did not surreptitiously enter Iran using false identity that openly engaged with the Iranian authorities to obtain visas using his Iraqi passport and get married using his Australian Titre de Voyage. Marriage certificates for foreigners in Iran are issued by private religious parties and the government has nothing to do with their issuance.The applicant went to Iraq to see his ill mother who was admitted to hospital for surgery for three months. The applicant’s parents were married in Iran in 1981 and as such it is illogical that he could have been born in Iraq in [year], given that the Iran-Iraq war was ongoing. The applicant’s Iranian family card and his sister’s Iranian identity card strongly suggest that he was born in Iran.The applicant maintains that he has completed the visa application form in such a way that all questions were answered and that no incorrect answers were given or provided. The applicant has complied with s.101(b). The applicant is a credible witness in the delegate had erred in her assessment and assumptions. The applicant was born in Iran as a stateless person whose parents married in Iran after being expelled from Iraq where their Iraqi citizenships were stripped off. The applicant grew up and attended his schooling in Iran. His mother tongue language is Persian and he speaks broken Iraqi Arabic. There is no evidence to confirm that he was physically born in Iraq.

Ratio Decidendi

Legal Principle Established

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