1903015 (Refugee)

1903015 (Refugee) [2021] AATA 2385 (17 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1903015

COUNTRY OF REFERENCE: Stateless
MEMBER:Nora Lamont
DATE:17 May 2021
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 17 May 2021 at 8:08am
CATCHWORDS
REFUGEE – protection visa – Stateless – country of former habitual residence – Iran – Federal Circuit Court remittal – race – Faili Kurds – nationality – stateless – particular social group – undocumented Faili Kurds – undocumented refugee working illegally – departure on a fraudulent passport – employment – education – identity documents – access to health services – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be stateless applied for the visas on 18 December 2012 and the delegate refused to grant the visas on 17 April 2014.
This is a Federal Court remittal. Case at first instance – [Number]. Remitted by FCC - [Case details deleted.]
Catchwords:
[Deleted.]
RELEVANT CONSIDERATION – [Deleted.]
IRRATIONAL AND ILLOGICAL REASONING – [Deleted.]
Summary of Decision Record
The primary review applicant and second applicant both claim to be stateless, but normally residing in Iran. The delegate did not agree that the applicants were stateless and considered that they were Iranian nationals.
The delegate placed weight on the applicant’s failure to detail any adverse treatment he received from authorities for not possessing identity documents. Also on the basis of the evidence, it made no logical sense to the delegate that the applicant as a stateless person would seek assistance from Iranian authorities to resolve a dispute whereby he was breaking the law by working illegally as an undocumented refugee as he could likely risk deportation.
The delegate found that the applicant was unable to provide any evidence of his status as a stateless person. In the delegate’s view, the applicant’s lifestyle in Iran is wholly consistent with him having lawful status in Iran.
Departure from Iran
The delegate did not find the applicant’s claim he departed Iran on a fraudulent passport to be credible. The delegate placed significant weight on the country information that states it is highly likely fraudulent passports are detected by Iranian Immigration. The delegate placed significant weight on the applicant’s evidence that the passport he travelled on was issued in his name, date of birth and bearing his photograph. The delegate was satisfied that the applicant departed Iran on his genuine Iranian passport – indicating he is an Iranian citizen.
Faili Kurdish race
The delegate accepted the applicant’s evidence he speaks Kurdish Faili dialect. Country information indicates the Kurdish dialect spoken in Ilam is Feyli. Sources note in Ilam city, locals speak the same dialect as Faili Kurds. In line with this country information, the delegate was of the view that the evidence that the applicant speaks Kurdish Faili dialect does not corroborate the applicant’s claim he is of Faili Kurdish ethnicity, noting the applicant lived in Ilam city and locals speak the same dialect as Faili Kurds. As such, the delegate placed little weight on this evidence to substantiate the applicant’s claim he is of Faili Kurdish race.
The delegate placed significant weight on the applicant’s inability to discuss during the PV his Faili Kurdish culture. The delegate placed significant weight on the interviewing officer’s numerous attempts to clarify with the applicant that his culture as a Faili Kurd is different to his claim he is stateless. For these reasons the delegate was not satisfied the applicant has made out his claim he is of Faili Kurdish ethnicity.
The Tribunal concluded after reviewing the Departmental and Tribunal files, along with the submissions from the applicants and their representative to proceed to a favourable decision on the papers without a hearing.
The applicants were represented in relation to the review by their registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
Background
The issue in this case is whether the applicants are owed protection under Australian law as refugees in respect of the applicants being stateless and for being Faili Kurds in Iran their former habitual residence.
The applicant’s came to Australia via boat and on false Iranian passports. The delegate believed the applicants to hold Iranian citizenship. The Tribunal has considered that the applicants are actually stateless and has assessed their claims against Iran as their former place of habitual residence.
The Tribunal has for the following reasons concluded that the applicants are stateless Faili Kurds and has no issues with their claimed identity.
The following is the Migration history of the primary and secondary applicant.

Date Event

[Date] PRA born in Baghdad, Iraq.

[Date] Secondary applicant is born in [Town 1], Baghdad, Iraq. She was [age range] years old when her family was expelled from Iran by Saddam Hussein.

[Year] PRA and family expelled from Iraq and moved to Ilam City, Iran

[February] 2007 PRA married secondary applicant in Iran

[June] 2012 PRA and secondary applicant departed Iran, transiting through [two named countries] before arriving in Indonesia. PRA claims to have spent 1 month in Indonesia while waiting for passage to Australia

[July] 2012 PRA and secondary applicant arrive on Christmas Island as illegal maritime arrivals.

7 November 2012 PRA and secondary applicant granted Bridging visa E and released from detention

18 December 2012 Applied for PV

17 April 2014 PV application refused

23 April 2014 Applied for review at AAT – [Number]

17 December 2015 Hearing before AAT

6 January 2016 Affirm decision made by AAT

[January] 2016 Appeal lodged with FCC

[January] 2019 FCC remits application back to AAT
Applicants Background

[Primary applicant’s name, date of birth and age]. The applicant claims to be a stateless Faili Kuridsh man born in Baghdad, Iraq, but resided in Iran before arriving in Australia. He identifies as being a Shia Muslim. He claims to speak, read and write in the Farsi language, and speak Kurdish (Faili) and Arabic languages.
His family consists of his wife (the secondary applicant), father, mother (both deceased) and [specified siblings] who currently reside in Iran. He has previously worked as a casual labourer in [an industry] in but has no employment history in Australia. He completed up to [grade] in primary schooling in Iran but undertook no formal schooling.
[Secondary applicant’s name, date of birth and age]. The applicant claims to be a stateless Faili Kurdish woman born in [Town 1], Baghdad, Iraq, but who resided in Iran prior to arriving in Australia. She identifies as being a Shia Muslim. She claims to speak read and write in the Farsi language, and speak Faili Kurdish. She married the first applicant in [a town in] Iran [in] February 2007.
Her family consists of her husband (the first applicant), mother and father (deceased), and [specified sibling] who currently resides in Iran, and she claims she contacts her family once a fortnight by telephone. She claims to have been a homemaker before coming to Australia and has not undertaken employment since arriving in Australia. She had no formal education, being home schooled for 1 year in Iran.
Claims
The applicant claimed he was born in Iraq with no citizenship. His family departed Iraq in [year] because the Iraqi Government expelled Faili Kurds.
·The applicant claimed while his family were living in Iran, both of his parents were killed during the Iran-Iraq war. Iraqi jets bombed the applicant’s village.
·The applicant claims as a stateless Faili Kurd in Iran he was not allowed to work legally or attend formal education. He was denied government health care and insurance.
·The applicant claims he was not allowed access to an Iranian green and white refugee card.
·The applicant claims he fears harm in Iran for departing the country on a fraudulent passport and claiming asylum in Australia.
Statutory Declaration – [the primary applicant]
·I was born in [year]. I was born in [name], a suburb in Baghdad, Iraq.
·My religion is Shia and my ethnicity is Kurdish of the Faili tribe.
·I am married to [the secondary applicant] with whom I have no children. [My wife] travelled to Australia with me as an irregular maritime arrival.
·[My wife] is also a Faili Kurd. We are both statless.
·As Faili Kurds, we were forced to leave Iraq for Iran. In Iran, we lived there illegally, without any legal residency or citizenship rights. We have no legal rights to reside permanently in Iraq or have any citizenship rights to any country.
Why I left that country
·Although I was born in Iraq in [year], my family had no rights to live in that country.
·My family departed from Iraq in [year] because the Iraqi Government led by Saddam Hussein expelled Faili Kurds from Iraq. Hussein expelled Faili Kurdish because we were both Kurdish and Shia. The combination of Kurdish and Shia was an affront to Hussein’s Arab nationalist government and his Sunni religion.
·When my family arrived in Iran, my family found that Persians were hostile towards Faili Kurd refugees from Iraq. Most Persians thought poorly of Faili Kurds because we arrived from an Arab country.
·During the Iran-Iraq war, there was considerable fighting along the border where I lived. The Iraqi jets would bomb villages. The Iranian revolutionary government did not do anything to protect Faili Kurdish. For instance, the Iranian authorities did not help Faili Kurds build shelters or assist displaced people to safer areas of Iran.
·Tragically both my parents were killed by Iraqi attacs. I attribute the deaths of my parents to both the Iranian and Iraqi governments.
·Living in Iran without any rights meant that Faili Kurds were denied any identification documents. Without any identification documents, access to formal education was not possible. We are not allowed access to Iranian green and white cards which at least provide a formal identity in that country.
·This meant gaining formal qualifications or degrees or public sector jobs was impossible. Faili Kurds were restricted to unskilled labour where we are often exploited.
·Faili Kurds were also denied ‘Beema’ coverage, which is Iran’s insurance scheme, paid by employers. Employers used Faili Kurds as cheap labour and could be easily dismissed, as we had no formal rights to protect us.
·Faili Kurds were also denied access to medical services. A lot of Faili Kurds used herbal medicines because pharmaceuticals were too expense. If Faili Kurds needed hospital care or x-rays we had to pay for them in the private sector at inflated prices.
·My wife, [named], has a very sore back from years of hard work weaving and carrying water and wood over long distances. She has had to pay for medicine and doctor consultations at prices at full cost.
·The situation in Iran has recently deteriorated for poor Faili Kurds and for my wife and me. The economy has very high inflation, and this has had made access to medicine and goods even more difficult.
·Furthermore, I found it more and more difficult to find regular work in recent years. I spent more time unemployed in recent years than I did about five years ago.
·I could not move to another part of Iran because I had no rights to accommodation or work as a Faili Kurd I would not be welcomed, and we would not have the support of fellow Faili Kurds. I could not even move from a village to a large town nearby without ID documents.
·We could no longer bear the situation in Iran anymore and I began to make arrangements to leave for Australia several years ago, but it took me some time to save for the money to leave.
·I chose Australia because it was such a multicultural country with different religions and with freedom where there is harmony. The law is above everything and people are law abiding.
What I fear may happen to me in my country of reference
·If I return to Iran, I will continue to be denied any identity documents and citizenship rights. Being stateless Faili Kurd, means I will be persecuted for my ethnicity and for lack of legal status.
Who I think may harm/mistreat me in my country of reference and why
·I fear the Iranian authorities who discriminate and persecute Faili Kurds by denying us a range of residency and citizenship rights. Iranian laws towards Faili Kurds and the brutality of the Iranian regime means that I will experience severe hardship with access to adequate employment, medical services and education denied.
·It is likely I would be punished for leaving Iran with a false passport. I will be arrested, detained and interrogated on arrival. I will be accused as being an informer against the Iranian government.
Do I think the authorities of my country of habitual residence can and will protect me and or my accompanying family members, where applicable, if I/we were to go back
·The Australian Government should not send me back to Iran as I have no rights there. Both my wife and I am stateless without identity documents or residency rights. No effective protection will be provided for me.
Do I think that there is a place in Iran where I could be safe.
·As stateless Faili Kurds, there are no safe places for us to live as we have no meaningful rights in Iran and because there is systematic discrimination against us. The Iranian government is very strict and harsh towards its perceived enemies, including Faili Kurds.
Other reasons I cannot return to my home country – Complementary protection
·For the reasons I mentioned above, I fear I will be arbitrarily deprived of my life, imprisoned, punished or tortured. I also fear cruel, degrading and inhumane treatment, if I am forced to return to Iran.
·Furthermore, my wife will be denied access to adequate medical assistance in Iran. This would amount to degrading and inhumane treatment.
Statutory Declaration – [the secondary applicant]
·I was born in [Town 1], Baghdad, Iraq, on [date].
·I am married and have no children.
·I am stateless by birth. I have no citizenships and I am not entitled to a citizenships nor do I have a right to residence in any other country. I have not been issues with any identification because I have no birth certificate and I have no right of access to benefits such as government schooling or health benefits.
·I was approximately [age range] years of age when my family was expelled to Iran by Saddam Hussein. Although I was very young when I left Iraq, my parents told me about this.
·I have been living in Iran for over 30 years and because I have no documents, I was not afforded the opportunity to attend government schools or receive normal health care entitlements available to Iranian citizens.
·As a consequence of this lack of access to basic services, I have limited literacy and numeracy skills, which limits my ability to gain employment.
·Prior to leaving Iran, I was assisting my mother with home duties and have never been engaged in paid employment.
·Since my marriage to my husband, I have dependent on my husband for support and due to my statelessness and lack of documentation, I have not been able to contribute income to our household.
·My husband and I would like to have children and after two years of marriage, I found that I was unable to become pregnant. I visited a doctor who referred me to a specialist who undertook surgery for an abnormality, however the surgery was not successful. After the surgery, I was left with a 3-centimetre scar from the incision that was made.
·There were 3 marks left after the surgery and one of them still remains red and appears not have fully healed. When I wear a belt, it often results in pain around my abdomen.
·I visited another specialist approximately one year after the surgery and he found that the previous specialist had not carried out the procedure correctly. He suggested that I obtain an ultrasound to check what had happened during the procedure.
·I discussed this with my husband, but he suggested that it was not wise to go through another procedure, based on what happened the previous time.
·We considered taking action against the specialist, however given that we were undocumented Faili Kurds, we decided that any action would be pointless, as we would not receive the support necessary to be successful with such action.
·When I undertook a medical examination shortly after arriving [in Australia], the doctor questioned me about these scars, as he was surprised about the scars. In his opinion, he thought that due to my age, I could still become pregnant, but would need to within the next couple of years to be successful.
·I believe that due to limited access to healthcare in Iran, it was unlikely that I would ever be able to start a family with my husband.
·Life for stateless undocumented women was especially difficult in Iran.
·It is extremely difficult to obtain employment, especially for a Faili Kurd who us undocumented.
·In the event that I was able to obtain paid employment, I would be paid half of what an ordinary Iranian citizen would be paid and have no opportunity to complain the authorities about it.
·As a Faili Kurd in Iran, I was constantly harassed by Iranians who looked down upon us because they do not recognise us as Iranians. We are singled due to our statelessness and lack of documentation. These incidents occur regularly; however we cannot respond to them as it may result in the authorities taking action against us.
·Due to our lack of status in Iran, we are unable to complain to the authorities when incidents such as this occur.
·When I was a child, an Iranian girl assaulted me when I was playing with the local children in the village. She struck me with a mattock, and it required surgery, which resulted in a scar on my [body part] that is still visible today. The girl warned me not to complain, as she said we would be in trouble, not her. We do not have rights to make complaints, no matter how serious the incident was.
·As my family had no access to basic healthcare, we did not seek treatment at the time. Because it did not heal properly, I later had surgery to repair the wound. It was found that there was still an infection in the wound as it was not properly treated at the time.
·Incidents such as this are part of daily life for Faili Kurds in Iran, especially for girls or women.
·As a direct result of the lack of access to basic healthcare and the need to undertake manual work, I have developed severe back pain which has remained untreated and causes me chronic pain on a daily basis.
·Faili Kurds in Iran are very careful about how they undertake their daily routine in order to avoid contact with the Basij, as they constantly harass us.
·Each day when my husband would leave, I was always in fear about whether he would return at the end of the day.
The countries to which I fear returning
·The countries to which I fear returning to are both Iran and Iraq.
Why I left Iran/Why I cannot return to Iran or Iraq.
·As a Faili Kurd, being stateless and undocumented, we are unable to obtain basic benefits such as education or medical services in Iran.
·In Iran we are considered Iraqi and in Iraq we are considered Iranian.
What I fear may happen to me in Iran, and who I think may harm/mistreat me and why.
·I fear that if I were to return to Iran, I would be unable to obtain access to basic services which would affect my ability to subsist. I would also be considered a spy if I returned to Iran as I had sought protection in Australia.
·The Iranian government do not provide any support for stateless and undocumented Faili Kurds and this treatment would ultimately result in serious harm for me and my husband and I would never be able to have a family and live a normal life.
Do I think the authorities or Iran can and will protect me if I were to go back to Iran?
·The Iranian government would not protect me, as they do not recognise any rights for me and my family and we will continue to be displaced between both Iran and Iraq.
·Any attempts we had made to gain support or assistance from the authorities in the past have not resulted in any success and the situation in Iran is only deteriorating for Faili Kurds.
Do I think there is a place in Iran where I could be safe?
·I do not believe that there is anywhere in Iran where I could be safe, as the authorities do not recognise me as a citizen with any rights.
Other reasons I cannot return to Iran – Complementary Protection
·For the reasons I mentioned above, I fear I will be arbitrarily deprived of my life, imprisoned, punished or tortured. I also fear cruel, degrading and inhuman treatment, if I am forced to return to Iran.
Findings

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal has considered if the applicants are indeed stateless and if so, how they were able to get out of Iran using fake passports in their own names. The claims are predicated on the fact that they are not citizens and therefore are not afforded state protection or the benefits of citizenship. On the other hand, the Tribunal has considered the alternative that is that they are indeed citizens of Iran.
There is no evidence that the applicants hold Iranian citizenship and the applicants have been credible and consistent in saying they were both born in Iraq. Obtaining citizenship in Iran a person must show Iranian ancestry through the paternal line to be eligible for Iranian citizenship. This is not possible for the applicants as they were born in Iraq and have no right to citizenship in Iran. [1] The Tribunal considers that the applicants are undocumented Faili Kurds born in Iraq and living undocumented in Iran.
[1] DFAT Thematic Report Faili Kurds in Iraq and Iran 3 December 2014
DFAT assesses that you can get fake passports on the black market but that it is difficult to get out of Iran due to the layers of security.
Local sources told DFAT that document fraud is ‘extremely difficult’ for primary forms of
documentation like passports, national identity cards, shenasnameh and driver’s licences. Obtaining these documents is considered beyond the technical and financial means of most Iranians. Passports and national identity cards have advanced security features, including chips with the bearer’s biometric data, making them difficult to forge. These features also make fraudulent passports and national identity documents easy
to detect. Secondary forms of documentation like military exemption cards are technically more vulnerable to fraud, as they have less robust security features, but are expensive to obtain. Paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easier to obtain through fraudulent means.
Multiple layers exist to protect against the issuance of fraudulent documents. In addition to being prohibitive financially, the potential consequences for officials involved in the fraudulent procurement of primary or secondary forms of identification, if caught, act as a major deterrent (including imprisonment). While DFAT cannot discount the existence of corruption in relation to official documentation, it does not assess it to be prevalent, particularly in relation to primary and secondary forms of documentation. DFAT assesses that the chances of obtaining a fraudulent Iranian passport or a genuine passport through fraudulent means are low.
The applicants claim they had one passport with both names on it and the only issue they had was that they were told they should have had separate passports. The Tribunal whilst it has regard to the DFAT country information is aware that many Faili Kurds, and others from Iran have come to Australia using false passports and documents so to some extent there are ways in which people can exit Iran without being detected.
In the absence of any evidence to the contrary the Tribunal has assessed the applicants claims that they are stateless and assessed their claims accordingly.
The Tribunal has considered that country information from DFAT states: [2]
The Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a sub-group of the larger Kurdish population. They originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border. Most, but not all, Faili Kurds originate from Iraq (some have lived in modern-day Iran for centuries). Faili Kurds in Iran typically reside either close to 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 (most Faili Kurds are Shi’a), their location and their distinctive dialect. Three main groups of Faili Kurds live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders). Accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available. A local Kurdish source told DFAT that the number of Faili Kurds in Iran is not significant as a proportion of Iran’s population.
Iran recognises many (but not all) Faili Kurds as refugees. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates (see Refugees and Undocumented Afghans). Many Faili Kurd refugees returned to Iraq after the fall of Saddam Hussein in 2003 and had their Iraqi citizenship reinstated (the Iraqi Nationality Law, adopted in 2006, repealed Decree No. 666 and stipulated that all persons denaturalised by the former government have their Iraqi citizenship restored).
DFAT is unable to verify how many Faili Kurd refugees have returned to Iraq from Iran. Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians.
DFAT is not aware of specific instances whereby authorities have singled out Faili Kurds for mistreatment, regardless of the category to which they belong.
[2] DFAT Country Information Report Iran 14 April 2020
It is clear from the country information that there are “undocumented” Faili Kurds in Iran. Whilst the number may be low none the less undocumented Faili Kurds do exist in Iran as the applicants claim. The Tribunal accepts that the applicants were undocumented Faili Kurd refugees from Iraq in Iran. In 2014 a credible estimate in 2014 suggested up to 8000 Faili Kurds in Iran. [3]
[3][3] DFAT Thematic Report Faili Kurds in Iraq and Iran 3 December 2014
The applicants have been consistent in their claims since they first arrived in Australia in 2012. The Tribunal finds that the applicants are undocumented Faili Kurds who have been living in Iran since they were expelled with their families from Iraq.
The Tribunal accepts that the applicants both lived undocumented and struggled with basic access to health care and employment. The Tribunal accepts that the applicants were denied an education and that they were barely able to subsist. Further, the second applicant has suffered some medical issues that she was not able to remedy as she did not have proper medical coverage.
The Tribunal accepts the applicants claims that they are a Members of a Particular Social Group “undocumented Faili Kurds”. It further accepts they have a well-founded fear of persecution based on the Faili Kurdish ethnicity.
Further, the Tribunal accepts that both applicants have suffered in the past in terms of unemployment, lack of proper medical treatment and fear of the authorities. The Tribunal finds that the applicants are stateless and there is a real chance the applicants would be seriously harmed for reasons of being undocumented Faili Kurds in Iran should they return to Iran now or in the reasonably foreseeable future.
Iraq
The Tribunal has also considered whether the applicants who were both born in Iraq could return there now that the Iraq Nationality Law is in place which allows former citizens to come back and resume their citizenship. Country information from DFAT shows that while many have returned the applicants who have no documentation and are unlikely to be able to obtain their registration from the 1957 census. [4]
State-sanctioned persecution of the Faili Kurds officially came to an end after 2003, and many Faili Kurds have returned from Iran. The preamble to the Constitution recognises the Faili Kurds as victims of oppression and massacres. The National Assembly unanimously passed a resolution in 2011 recognising the crimes perpetrated against the Faili Kurds as genocide, and the Iraqi High Tribunal convicted four Ba’ath Party officials in connection with their roles in the deportations. The Iraqi Nationality Law (2006) established the right to regain Iraqi nationality for those previously denationalised on political, religious or ethnic grounds, and many Faili Kurds have been able to have their Iraqi nationality reinstated.
However, the process of reinstatement is reportedly slow and bureaucratic, sometimes taking years to complete, and often requires applicants to pay bribes to officials. Moreover, the documentary requirements are onerous, requiring applicants to provide a copy of their registration from the 1957 census, among other documents that many Faili Kurds are unlikely to possess. While the Iraqi government claims that 97 per cent of expelled Faili Kurds have regained citizenship, community activists claim thousands of families remain stateless. Without nationality documents, Faili Kurds cannot access public services such as education and health care. They are also unable to obtain other documents such as birth, death and marriage certificates
(see Documentation). Faili Kurds who have managed to obtain nationality documents have reported that the identity cards issued are a different colour than those of other Iraqis, or show them as citizens of ‘Iranian origin,’ which could open them up to discrimination. Reportedly, Faili Kurd files and records are still being kept in the foreigners’ section of the General Nationality Directorate. Some community members have reported facing insults, harassment and humiliation when visiting government offices.
Another major challenge facing Faili Kurds denationalised during the Ba’ath era is the issue of recovering their confiscated properties. Upon returning to Iraq, many Faili Kurds found other people had occupied their homes. While the Property Claims Commission established after the fall of Saddam Hussein was mandated to resolve Ba’ath-era disputes, the process of compensation has reportedly been inefficient,
and incapable of dealing with cases in which property deeds had been confiscated, and there have been few reports of compensation actually being transferred to families.
There has also been little progress on implementing the Law on Compensation for Persons Affected by the Ba’ath Regime (2010). There is currently one Faili Kurd member of parliament, representing Wasit province. Due to their unique minority status, Faili Kurds do not fit in neatly in either the Kurdish or Shi’a blocs, and neither of these dominant groups has taken up their cause. Many Faili Kurds reportedly aligned themselves with Arab tribes for protection during the Ba’ath era and have subsequently lost their identity and status as Faili Kurds. During the 2017-18 Kurdish independence referendum there were reportedly some instances of threats being made against the Faili Kurd community. DFAT is not aware of any cases in which these threats were carried out.
DFAT assesses Faili Kurds without nationality documents face a moderate risk of official
[4] DFAT Country Information Report IRAQ August 2020
discrimination as the absence of these documents means they are unable to access government services or obtain other important identification documentation. Faili Kurds face a low risk of societal discrimination based on them being considered foreign nationals, although this is unlikely to include being subjected to violence.
The Tribunal considers the applicants cannot return to Iraq to regain citizenship given the onerous process and documentation needed as per the above country information which the applicants do not have. Therefore, the Tribunal finds that the applicants are stateless.
Conclusion
The applicants have claimed they were mistreated and discriminated against by the people of Iran and the authorities based on their ethnicity, that is they were both harmed for reasons of their membership of a particular social group undocumented Faili Kurds. With respect to state protection as undocumented Faili Kurds who are stateless they will not be afforded state protection in Iran.
The Tribunal is not satisfied that the applicants can relocate anywhere in Iran or Iraq as stateless Faili Kurds. DFAT assesses that Faili Kurds who are unregistered refugees in Iran would face significant difficulty relocating internally. Without documentation, their access to employment, accommodation and government services is likely to be restricted. [5] In Iraq they have no documentation and no family ties, nor do they have access to the census documentation required.
[5] DFAT Thematic Report Faili Kurds in Iraq and Iran 3 December 2014 page 18
The Tribunal is satisfied, and finds, that as undocumented refugees the applicants face a real chance of discrimination in accessing health care and a denial of government subsidies for food, health care, insurance and housing. They have no right to work and as a result will face difficulties getting employment and, if employed, they will face significantly worse conditions than citizens or documented refugees.
DFAT reports that the health insurance scheme for Iranian citizens is not available to documented refugees’ costs for health care are higher. They cannot rent property even if they are documented and must do so through an Iranian citizen. The Tribunal infers that the denial of basic rights and services for undocumented refugees is, to a greater extent than for documented refugees, intended to encourage them to leave Iran. The Tribunal is satisfied on this basis that the government's treatment of undocumented refugees is systematic and discriminatory.
With regard to all the evidence above, the Tribunal finds that the applicants face a real chance of serious harm essentially and significantly for the reason of their membership of a particular social group undocumented Faili Kurds. Therefore, their fears of being persecuted in Iran are well-founded.
As the Tribunal has found the applicants to be Refugees the Tribunal has not engaged Complementary Protection.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants 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.
Nora Lamont
Member

Document List – 1903015 – [primary applicant]
Tribunal File – 1903015
1. N/A
Department File – [Number]
1. UNHCR Consent Form dated [in] 2012
2. Submission by Representative dated 18/12/2012 including:
3. Bridging Visa E conditions signed by [primary applicant] 12/3/13
4. Acknowledgement of valid application for a Protection (class XA) visa – [secondary applicant] dated 16/7/13
5. Acknowledgement of valid application for a Protection (class XA) visa – [primary applicant] dated 24/7/13
6. Invitation to attend an interview for Protection (class XA) visa application – [primary applicant] dated 16/10/13
7. Protection (Class XA) visa Decision Record dated 17/4/14
8. Visa application summary – [primary applicant] dated 18/12/12
9. Visa application summary – [secondary applicant] dated 18/12/12
10. Legal Submission by Representative via email dated 13/11/13

[2021] AATA 2385

17 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Standing

Date	Event
[Date]	PRA born in Baghdad, Iraq.
[Date]	Secondary applicant is born in [Town 1], Baghdad, Iraq. She was [age range] years old when her family was expelled from Iran by Saddam Hussein.
[Year]	PRA and family expelled from Iraq and moved to Ilam City, Iran
[February] 2007	PRA married secondary applicant in Iran
[June] 2012	PRA and secondary applicant departed Iran, transiting through [two named countries] before arriving in Indonesia. PRA claims to have spent 1 month in Indonesia while waiting for passage to Australia
[July] 2012	PRA and secondary applicant arrive on Christmas Island as illegal maritime arrivals.
7 November 2012	PRA and secondary applicant granted Bridging visa E and released from detention
18 December 2012	Applied for PV
17 April 2014	PV application refused
23 April 2014	Applied for review at AAT – [Number]
17 December 2015	Hearing before AAT
6 January 2016	Affirm decision made by AAT
[January] 2016	Appeal lodged with FCC
[January] 2019	FCC remits application back to AAT