1907125 (Migration) - [2021] AATA 3700

1907125 (Migration) [2021] AATA 3700 (25 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907125
MEMBER:Alison Murphy
DATE:25 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the power to cancel the visa under s 109 was not enlivened.

Statement made on 25 August 2021 at 3:54pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers in protection visa application – citizenship – undocumented stateless Faili Kurd or Iranian or Iraqi Kurdish citizen – parents’ Iranian birth certificates and Iranian law giving applicant citizenship at birth – applicant’s Iranian driver’s licence and passport, and attempts to regain Iraqi citizenship – procedural fairness – validity and sufficiency of s 107 notice – failure to provide source of information, preventing real opportunity to understand and meaningfully respond – no reference to applicant’s possible Iraqi citizenship – decision maker’s satisfaction of non-compliance ‘in the way described in the notice’ – parents’ purported citizenship based on one questionable document provided by applicant’s sister – notice invalid and power to cancel visa does not arise – no real state of satisfaction even if notice valid – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 46(1), 101, 107, 108(b), 109(1), 375A, 359A(1), 438
CASES
Burton v MIMIA (2005) 149 FCR 20
CSH18 v MHA [2018] FCCA 3226
Kang v MIAC [2013] FCA 711
MIAC v Brar (2012) 201 FCR 240
Nader v MIMA [2000] FCA 908
NAVK v MIMA [2004) FCAFC 160
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v MIBP [2016] FCAFC 52
SZEEM v Minister for Immigration [2005] FMCA 27
SZNKO v MIAC [2010) FCA 297
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (the Act).
The applicant is a [Age]-year-old male who arrived in Australia by boat [in] August 2011 and sought protection. He was granted a protection visa on 15 March 2012 and the resident return visa on 21 March 2017.
The delegate cancelled the resident return visa on the basis that the applicant breached

s 101 of the Act by providing incorrect answers about his country of citizenship in his protection visa application.
The applicant appeared before the Tribunal on 27 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of two interpreters. The hearing commenced with the assistance of an interpreter in the Kurdish and English languages who became indisposed during the hearing and was unable to continue. The hearing was completed with the assistance of interpreter in the Farsi (Persian) and English languages.
This matter was considered and determined along with four cases relating to the applicant’s [relatives] (AAT proceedings [Numbers]) which were decided by the delegate on the same grounds. At the Tribunal noted that it appeared the [related] cases fell to be determined on the same basis as that case and indicated that it intended to treat the evidence in each case as evidence in the related cases unless the applicants requested otherwise.
The applicant in this case and each of the related cases was represented in relation to the review by the same registered migration agent.
ISSUES FOR DETERMINATION
The issues in this case are:
·    whether the s 107 notice sent to the applicant is valid; if so,
·    whether the ground for cancellation is made out in respect of the applicant; and if so,
·    whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and a decision substituted that the power to cancel the visa under s 109 was not enlivened.
DOCUMENTS BEFORE THE TRIBUNAL
The Tribunal has been provided with the Department’s file in relation to the cancellation of the applicant’s resident return visa ([Reference number]). That file contains copies of some documents from the applicant’s protection visa application file as well as documents relating to the visa applications of the applicant’s sister and her family members as well as details of investigations and assessments undertaken by the Department into the applicant’s identity and citizenship.
The Departmental file contains a copy of a translation of the Iranian birth certificate purportedly issued to [Ms A, the applicant’s sister] as well as the amayesh cards issued to the applicant’s family members in Iran and it appears that all of those documents were provided by the applicant to the Department in response to the s.107 notice. However the Departmental file does not contain full copies of the Iraqi identity documents referred to in the decision below, rather parts of those documents appear to have been copied and extracted into the Department’s Identity Assessment Report. Copies of the full Iraqi identity documents were provided to the Tribunal by the applicant.
Non-disclosure certificate
The Tribunal has before it the applicant’s Departmental file relating to the cancellation of the applicant’s resident return visa ([Reference number]), containing copies of documents from the protection visa application file as well as documents relating to the visa applications of the applicant’s sister and her family members. The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing certificates s 438 and s 375A of the Act.
The first certificate is issued under s 438 of the Act on 8 April 2019. Where a certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. However s 438 applies to reviews conducted under Part 7 of the Act, being decisions that relate to the grant or cancellation of protection visas. The current review is a Part 5 reviewable decision, as it concerns the cancellation of the applicant’s resident return visa. As it was made under the incorrect power, the certificate dated 8 April 2019 is invalid.
The second certificate is made under s 375A and dated 20 July 2021. It states that disclosure of folios 1–10, 71–107 and 110–131 of the file of the Department’s cancellation file [Reference number] would be contrary to the public interest because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of those methods. Copies of the certificates were provided to the applicant’s representative who indicated at the hearing that they did not wish to make submissions as to the validity of the certificates.
Where a certificate is issued under s 375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. However the Federal Court has held that a valid s 375A certificate does not override the Tribunal’s obligation to provide particulars of information under s 359A(1). Therefore, while the material subject to a s 375A certificate cannot be provided to the applicant, the Tribunal must consider how to provide sufficient particulars of the information (such as the gist of the information) to the applicant to comply with its s 359A obligation.[1]
[1] Burton v MIMIA (2005) 149 FCR 20 at [40]–[42]
In this case the certificated information runs to many pages, not all of which is directly relevant to the applicant or the current review. I have had regard to the public interest in protecting the Department’s investigative methods and the confidentiality owed to third parties. Weighing that up against the requirements of procedural fairness set out in s 359A, the Tribunal wrote to the applicant disclosing particulars of that information relevant to the citizenship of the applicant. This includes information about the citizenship of his parents and his siblings which form the basis of the Department’s assessment of the applicant’s own citizenship. In summary, the Tribunal’s letter noted that material before the Tribunal indicated that he may be an Iranian and/or Iraqi national because:
Iranian nationality:
1. The applicant’s sister [Ms A] had given inconsistent information about her citizenship and that of her family and provided an Iranian birth certificate to the Department which showed details of their parents’ Iranian birth certificates.
2. The applicant had provided the Department with an Iranian driver’s licence that the Department assessed as a legitimately manufactured document and stated that he travelled through Imam Khomeini International Airport on an Iranian passport that contained his name, date of birth and photograph.
Iraqi nationality:
1. The applicant participated in an identity interview on 9 August 2017 and provided a number of Iraqi identity documents to the Department in respect of himself and his brother [Mr B] which showed the family name as [Alternative spelling], rather than [Surname]. He is reported to have told the Department that [Mr B] successfully reacquired Iraqi citizenship in 2010, as evidenced by an Iraqi census document, an Iraqi citizenship certificate and an Iraqi identity card relating to his brother. The documents indicate his parents are also Iraqi citizens.
2. The applicant is reported to have stated that he made an application for Iraqi citizenship and provided documents regarding that application. The nationality officer’s notes in the documents he provided state that after investigation they considered that his request to be granted an Iraqi nationality certificate complied with the Iraqi Nationality Act and requested approval for the granting of the Iraqi nationality certificate.
3. A Five Country Conference check conducted in respect of his sister [Ms A] was matched with a person who sought protection in [Country 1] as an Iraqi citizen.
Except as set out in the Tribunal’s letter, the certificated information has not been provided or otherwise disclosed to the applicant by the Tribunal.
LEGISLATIVE FRAMEWORK
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s 107?
Section 107 of the Act sets out the requirements of a notice issued under that provision. If the Minister is of the view that a visa holder did not comply with s 101 of the Act (as asserted in the present case), subsection (1)(a) requires the notice to give ‘particulars of the possible non-compliance’.
The s 107 notice was sent to the applicant on 3 August 2018. The s 107 notice states that the applicant arrived on Christmas Island [in] August 2011, claiming to be an undocumented stateless Faili Kurd seeking asylum in Australia. He was recognised as a person owed protection by Australia in a Protections Obligations Determination in January 2012, after which the Minister lifted the statutory bar in s 46A(1) to allow the applicant to lodge an application for a protection visa. He lodged that application on 9 March 2012 and was granted the protection visa on 15 March 2012.
The section 107 notice commences by setting out the information provided by the applicant in his protection visa application. Of particular importance are the applicant’s statements about his citizenship at birth and at the time of application; the circumstances in which he lost his citizenship and any rights he had to enter and reside in any country other than his country of nationality or country of former habitual residence. In essence the notice records that the applicant stated in his protection visa application that he was currently stateless and had been stateless since birth; that his countries of former habitual residence were Iran and Iraq and that he did not have a right to enter or reside in any country other than his country of nationality or country of former habitual residence.
The s 107 notice goes on to state that in his Form 80, the applicant named his parents as [Mr C] and [Mr D] and claimed they were both stateless. It records that in his protection visa application he had claimed his parents were born in rural towns on the Iran-Iraq border in the west of Iran and that they had migrated to Australia when they were children. The notice states that the applicant claimed his parents were never formally granted Iranian citizenship because the Iranian government was never aware of their births in small agricultural villages close to the border of Iraq, but that they were permitted to live in Iraq because of their possession of a document that identified them as Kurdish Iranian. On the basis of the applicant’s claims to be an undocumented Faili Kurd living in Iran, he was found to be a person who engaged Australia’s protection obligations and granted a protection visa on 15 March 2012.
The s 107 notice records that the Department has received information indicating that the applicant’s parents are Iranian citizens. In particular it asserts that the applicant’s father [Mr C] holds an Iranian birth certificate (shenasnameh) with the number [Number 1]. It asserts that the applicant’s mother holds a shenasnameh with the number [Number 2]. The notice states that a shenasnameh is issued to all Iranian citizens at birth and contains basic family details including their name and the status of the person’s parents indicated by their own unique shenasnameh number. It cites country information indicating that pursuant to Iran’s nationality laws, persons born inside or outside Iran to Iranian fathers are Iranian subjects. It asserts that the registration of the applicant’s parents’ births with the Iranian government and their issue with shenasnamehs is evidence of their Iranian citizenship and that Iranian citizenship passes to the applicant through the paternal line. It asserts that this indicates the applicant is also an Iranian citizen.
For these reasons the s 107 notice goes on to allege that the applicant provided incorrect information in his protection visa application in the following respects:
·His statement that he was currently stateless and stateless at birth at questions 19 and 20 of the Form 866C was incorrect because he acquired Iranian citizenship at birth from his Iranian citizen father;
·His statement that he did not hold any other citizenship and was not a national of any other country at question 21 of the Form 866C was incorrect because he held Iranian citizenship at the time of his protection visa application;
·His statement that he did not have a right to enter or reside in any country other than his country of nationality or country of former habitual residence at question 22 of the Form 866C was incorrect because as an Iranian citizen he had the right to enter and reside permanently in Iran at the time of his protection visa application;
·His statement that as a Kurdish Faili he was stateless from birth until date at question 23 of the Form 866C was incorrect because he acquired Iraqi citizenship at birth and held that citizenship while living in Iraq and Iran and was not stateless as claimed in his protection visa application.
The s 107 notice went on to state that based on this information, it was considered the applicant had not complied with s 101(b) of the Act and his protection visa was liable for cancellation under s 109 of the Act. The applicant was invited to comment in writing on the s 107 notice.
Following receipt of the notice, the applicant and his representative corresponded with the Department seeking an extension of time to comment on s 107 notice as the applicant was awaiting documents requested under a freedom of information request and seeking legal advice. That request was not granted.
The applicant responded to the notice on 16 October 2018, providing legal submissions on the sufficiency and validity of the notice, whether the ground for cancellation is made out and the discretion not to cancel. Various supporting documents including medical records and character references were also submitted as part of that response.
In relation to the sufficiency and validity of the notice, it was contended that the notice did not comply with the requirements of s 107 because it failed to provide particulars of the source of the information, thus preventing the applicant from providing a meaningful response to the notice, citing Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908 as authority for that proposition. Those submissions also contended that the ‘information’ could not necessarily be divorced from its context and how much of the surrounding context must be disclosed will depend on the facts and circumstances of each case (SZNKO v Minister for Immigration and Citizenship [2010) FCA 297 at [29]) and the scope of the duty to disclose may be narrowed or reduced in relation to confidential information or material where disclosure would be contrary to the national or public interest (NAVK v Minister for Immigration and Multicultural Affairs [2004) FCAFC 160 at [87)–[89]. It is submitted that in such cases the decision maker must consider whether it is possible to reconcile the competing interests of procedural fairness and non-disclosure by disclosing the gist of the relevant material (NAVK v Minister for Immigration and Multicultural Affairs (2004] FCAFC 160 at [88].
In relation to the substance of the information, it was submitted that the applicant’s sister [Ms A] acquired Iranian nationality through her marriage to her husband, an Iranian national and that prior to that she was stateless as advised to the Department. The submissions attached a copy of the shenasnameh provided by [Ms A] to the Department. It was noted that the document appeared to be issued to a person born in Iraq whose father was also born in Iraq which was not consistent with country information regarding the issue of these documents. It also noted that the document did not indicate that either of [Ms A]’s parents held a shenasnameh or were otherwise considered to be Iranian nationals and the birth date on the document, if correct, suggested she was born only five months apart from the applicant. The submissions attached copies of ‘green cards’ and ‘white cards’ issued to the applicant’s relatives in Iran as further evidence they were resident in that country as refugees and not as citizens. The applicant’s response to the notice also contained information about the various discretionary factors the delegate was obliged to consider should they consider the ground for cancellation was made out.
Before the Tribunal, the applicant relied upon its submissions to the Department about the sufficiency and validity of the s 107 notice. The applicant also provided copies of the documents relating to his attempts to reinstate his Iraqi citizenship which he had previously provided to the Department, but which are not contained in the materials before the Tribunal.

For the following reasons, I find the s 107 notice to be invalid.
The s 107 notice
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. I accept the delegate had reached the requisite state of mind. As noted above, on the basis of information received by the Department the delegate formed the view that the applicant is both an Iranian and Iraqi national.
Sufficiency and validity of the notice
In considering the sufficiency of the notice, I note the s 107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised.
In Zhao v Minister for Immigration and Multicultural Affairs, the Full Court stated that:
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.[2]
[2] Zhao v MIMA [2000] FCA 1235 at [25]
While the Court in Zhao was considering a notice under s 119 of the Act, it was cited with approval by the Full Federal Court in MIAC v Brar which considered that it was of assistance in terms of the proper interpretation and application of s 107.[3]
[3] (2012) 201 FCR 240 at [57]
In SZEEM v Minister for Immigration,[4] the court noted that there are many authorities concerning situations where the potential consequences of the decision-making are a serious deprivation of rights, which have interpreted a statutory requirement of particularity in a manner which ensures that the person in question has a real opportunity to understand and deal with the matters alleged. The court went on to state:
On these authorities, I consider that in notices under s.107 it is "necessary for the notice to identify in clear terms: all charges to be relied on, the relevant legislative provisions or rules giving jurisdiction; the particular grounds relied upon where there are several alternatives; and particulars of the act, matter or allegations forming the basis for the charge" (c.f. the extract from Aronson and Dyer, Judicial Review of Administrative Act, 2^nd ed, quoted by Weinberg J in Gribbles Pathology (Vic) Pty Ltd v Cassidy[2002] FCA 859; (2002) 122 FCR 78 at 100, and the cases cited by his Honour). The presenter of a s.107 notice must bear in mind the procedural fairness objectives of the requirement to give particulars: the recipient must be told "precisely what he has to meet" (c.f. Hunt J in Etherton v Public Service Board[1983] 3 NSWLR 297 at 445 and other cases cited by Davies J in Yung v Adams(1997) 80 FCR 453 at 455-457, approved in Adams v Yung(1998) 83 FCR 248 at 297). The importance of this in the present procedure is strengthened, rather than weakened, because the legislature has made satisfaction of non-compliance "in the way described in the notice" a precondition to the powers of the decision-makers at first instance and on appeal.
[4] [2005] FCMA 27 at [39]
I have considered also the authorities referred to by the applicant in his submissions. I note that all of those cases (NAVK, Nader and SZNKO cited in paragraph 26 above) are concerned with the requirement to give particulars of information under s 424A, rather than the sufficiency of notifications under s 107. Nonetheless I accept the general principle that the question of what is required by way of particulars will fall to be resolved by reference to the nature of the information before the Tribunal and that the particulars of information disclosed must be sufficiently detailed so as not to render the information misleading and to ensure the applicant is equipped to respond with relevant information and submissions.
In this case, I consider the s 107 notice is clearly deficient.
Firstly, it fails to particularise the source or context of the information about the applicant’s purported Iranian citizenship. While it records that the Department has received information indicating that the applicant’s parents are Iranian citizens holding Iranian birth certificates (shenasnamehs), it does not reveal the source of that information, either by reference to a person or a document.
This is particularly relevant given the sole source of the information is a document provided by the applicant’s sister in the context of her own claims and the Departmental file contains a statutory declaration from her in which she states that she has advised the Department in her entry interview and other interviews that the shenasnameh from which the information about her parents’ citizenship was sourced was obtained by her husband through bribery and she is unaware of whether it is genuine or fabricated.
Secondly, the s 107 notice inexplicably fails to make any reference at all to the information indicating that the applicant may also be an Iraqi national. There is no discernible public interest reason for the failure to disclose this information in the s 107 notice, because the certificated information indicates that with the exception of a single piece of information relating to the applicant’s sister, all of the information and documents that form the basis of the conclusion that the applicant is an Iraqi national were provided to the Department by the applicant himself.
The deficiencies in the s 107 notice mean that the applicant has not been given sufficient particulars to be able to meaningfully respond to the information suggesting he is an Iranian national and he has not even been put on notice of the Department’s assessment that he is an Iraqi citizen. As a result he was denied an opportunity to meaningfully address the allegation that he is not stateless as claimed in his response to the s 107 notice.
Consequences of a defect in the s 107 Notice
The terms of ss 108 and 109(1) indicate that the procedural requirements set out in s 107 are mandatory preconditions to the exercise of the power to cancel. The Australian courts have held that a minor or insignificant error which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss 108 and 109 where adequate particulars are otherwise provided.[5]
[5] MIAC v Brar (2012) 201 FCR 240 [61]; Kang v MIAC [2013] FCA 711
On review, the Tribunal remains bound to apply the laws defining the power of the primary decision maker and has no greater or different substantive powers than the primary decision maker.[6] If no particulars are given in the s 107 notice, or if those particulars are insufficient to enable the visa holder to respond to the allegation, it will not be possible to make the decision required by s 108(b) and the power to cancel the visa will not arise.[7]
[6] Section 415(1) of the Act; CSH18 v Minister for Home Affairs [2018] FCCA 3226
[7] SZEEM v MIMIA [2005] FMCA 27
For these reasons, the Tribunal finds that the notice was not a valid notice for the purposes of s 107. As a valid s 107 notice is a precondition to the exercise of the power under s 109, the power to cancel the visa did not arise. As such the Tribunal must set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s 109 was not enlivened.
The ground for cancellation
I note that even had I found that the s 107 was valid, I would not have found that the ground was established.
The Australian courts have confirmed that a mere suspicion is not sufficient to establish the ground for cancellation. Rather, before the visa can be cancelled, a decision maker must reach a real state of satisfaction that a ground for cancellation exists. A visa cannot be cancelled because the decision-maker has identified a possible ground for cancellation which the visa holder has not been able to rebut.[8] In reaching the required state of satisfaction, the Full Court has observed:
When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached.[9]
[8] Zhao v Minister for Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]
[9] Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [120]
I note that much of the information now relied upon to suggest the applicant is not stateless as claimed was known to the Department before the applicant was granted the protection visa. In particular the documents relating to the applicant’s attempts to regain his Iraqi citizenship are discussed in the Protection Obligations Evaluation Outcome dated 23 January 2012, as is the fact that the applicant held an Iranian driver’s licence and departed Iran on an Iranian passport.
I am unable to tell from the materials before me when the document purporting to be a shenasnameh of [Ms A] was provided to the Department, but that appears to be the only new information directly relating to the citizenship of the applicant.
Iranian citizenship
In relation to the applicant’s asserted Iranian citizenship, I do not consider the document described by the Department as a shenasnameh of [Ms A] to be probative evidence of the applicant’s nationality. Indeed I am not even satisfied the document is a shenasnameh relating to the applicant’s sister. The document concerned is a single page photocopy of an English language translation, parts of which are illegible. The untranslated document is not attached and is not otherwise included in the papers provided to the Tribunal by the Department. The purported bearer of that document has provided to the Department a statutory declaration stating that the document (which she describes as a birth certificate) was fraudulently obtained by bribery and that she is not legally entitled to it. She states that the birth certificate numbers given for her parents on that document were falsified and that both her parents were born in Iraq.
While the terms ‘shenasnameh’ and ‘birth certificate’ are sometimes used interchangeably, DFAT reports that hospitals issue birth certificates for newborn children, which are then submitted along with the parents’ own national identity card or shenasnameh to obtain the child’s shenasnameh.[10] The shenasnameh is a passport-style document containing multiple pages including the bearer’s photograph, fingerprint and date and place of birth.
[10] DFAT ‘DFAT Country Information Report Iran’ 14 April 2020 at [5.32–5.34]
The translated document in this case does not appear to be in the usual form of a shenasnameh, the translation being only a single page. It does not give a place of birth for the applicant’s sister as would usually be included in a shenasnameh,[11] but states she was born on 18 March 1964 and the certificate was issued in Baghdad on 8 September 1964. On its face it appears to have been issued by the authorities of Iran in respect of a child born in Baghdad, Iraq to parents also born in Iraq. This would appear to preclude the document from being a birth certificate issued by an Iranian hospital of the kind referenced by DFAT above. Nor does any explanation immediately suggest itself as to why the Iranian authorities would issue a shenasnameh in respect of a baby born in Iraq to Iraqi born parents. It is of course possible for a woman who is not an Iranian citizen to gain that citizenship upon marriage to an Iranian citizen and that appears to be the explanation given by [Ms A] to the Department in respect of her citizenship. However nothing in this document suggests references that explanation.
[11] DFAT ‘DFAT Country Information Report Iran’ 14 April 2020 at [5.32–5.34]
Further anomalies with the document include that the identity numbers recorded in the document for the applicant’s parents [Ms D] and [Mr C] are unusually low ([Number 2] and [Number 1]) and record their places of birth as cities in Iraq. It is not clear what those identity numbers refer to, but by contrast the document gives a ten digit identity number for the applicant’s sister ([Number 3]). While the s.107 notice alleges that the document gives shenasnameh numbers for [Ms A]’s parents, the document refers only to their identity numbers and does not specify what identity document are referred to.
DFAT reports that only Faili Kurds with paternal Iranian ancestry are eligible for Iranian citizenship and while many have applied, only a small number have succeeded in obtaining it due to the lengthy and complicated process and the high costs involved, while others have not applied because they do not have the required family members in Iran to prove their Iranian ancestry.[12] In circumstances where the purported shenasnameh records the applicant’s parents as being born in Iraq, it is difficult to see how the applicant or his sister could have the required Iranian ancestry.
[12] Ibid at 3.26
I note the applicant has also provided to the Department copies of amayesh cards (both green cards and white cards) held by family members in Iran. Amayesh are issued to Iraqi refugees resident in Iran and their issue is inconsistent with the family being Iranian nationals. The information about the applicant’s use of an Iranian passport was before the delegate who assessed his claims and determined the Protection Obligations Evaluation Outcome dated 23 January 2012 and that delegate accepted he departed Iran on a genuine passport that was falsely issued.
For all of these reasons I am not satisfied that the purported document is a shenasnameh, nor that it is genuine, nor that it is probative evidence of the applicant’s nationality. It follows that I am not satisfied he is an Iranian citizen.
Iraqi citizenship
I consider the applicant has given a plausible explanation of his attempts to regain his Iraqi citizenship and that he has been consistent in that explanation over the past decade.
In essence that explanation is that in 2010, he returned to Iraq after the Iraqi government passed laws allowing expelled Faili Kurds to regain his Iraqi citizenship and apply for compensation for his father’s assets in Iraq. He submitted an application and supporting documents confirming he was a Faili Kurd including the affidavits of several witnesses stating that he was a Faili Kurd deported from Iraq. However he was unable to provide sufficient identity documents to finalise the process, and after about a month of trying to obtain the paperwork he gave up and returned to Iran.
He explains that his brother [Mr B] was born in a hospital and had a birth certificate, making the administrative process simpler. His brother was ultimately able to obtain his Iraqi citizenship documents, but that process took a long time. The family were not able to regain their father’s assets or compensation because that process requires the whole family to obtain Iraqi documents, and the applicant’s many siblings are scattered across many countries including Australia, [Country 2], [Country 3] and [Country 4].
The documents concerning the applicant’s attempts to regain his Iraqi nationality were provided to the Department by the applicant when he sought protection in Australia and are referred to in the delegate’s decision concerning the Protection Obligations Evaluation Outcome dated 23 January 2012. The decision records the delegate considered those documents, discussed them with the applicant at interview and found those documents to be consistent with the applicant’s evidence as to his ongoing attempts to obtain an Iraqi nationality certificate and consistent with the experiences of stateless Faili Kurds in Iran. In relation to the family name in those Iraqi documents being ‘[Alternative spelling]’ rather than ‘[Surname]’, the delegate accepted that to be different alliterations of the same name.
Country information confirms that the Iraqi Nationality Law of 2006 provides for the restoration of citizenship to Iraqis whose citizenship was revoked and that since 2006, the Iraqi government has actively encouraged Faili Kurds to return to Iraq and reclaim their citizenship. The process of regaining citizenship varies according to the nature and amount of identification that the applicant is able to produce and requires a representative of the family to travel to Iraq. In the event that an applicant has insufficient documentation and/or local records had been destroyed, credible local witnesses could attest to the applicant’s provenance in a local court and the records of the testimony transferred to Baghdad. At the end of the process, the individual applicant must go in person to pick up the Nationality Certificate in Baghdad.[13]
[13] DFAT ‘DFAT Thematic Report: Faili Kurds in Iraq and Iran’ 3 December 2014
However that process is reportedly slow and difficult in practice, with the UNHCR reporting in 2010 that only 666 out of 25,000 potentially eligible expelled persons had reacquired their citizenship since the law came into effect. It noted that there were serious problems in the implementation, including difficulties for those who lacked the identification documents required, the loss of the civil status records, general bureaucracy, slow procedures, lack of employees with a legal background and administrative corruption.[14]
[14] Country Advice Iraq IRQ37208 – Faili Kurds – Reacquiring Iraqi citizenship 18 August 2010
More recently it is reported that despite the positive steps of reinstatement, there continue to be obstacles hindering the return of Faili to Iraq, with reports that the process of reinstatement is long and cumbersome and applicants are often required to travel from their place of residence to the Nationality Directorate in Baghdad to follow up on their applications. It is reported that some Faili Kurds started the process but could not complete it due to documentary and financial requirements.[15]
[15] Abdullah Omar Yassen, ‘Report on Citizenship Law: Iraq’, (Country Report, RSCAS/GLOBALCIT-CR 2021/12, May 2021), at p.10
I note that the applicant’s attempts to regain his Iraqi nationality took place at the same time as the UNHCR report. I consider the applicant’s attempts to regain his Iraqi citizenship to be consistent with the available country information and I am not satisfied that process was ever completed. It follows that I am not satisfied he is an Iraqi citizen.
CONCLUSION
In these circumstances the Tribunal must set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s 109 was not enlivened.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the power to cancel the visa under s 109 was not enlivened.
Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.