1919013 (Refugee)

[2022] AATA 2398

1919013 (Refugee) [2022] AATA 2398 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Navid Koushke Baghi (MARN: 1681603)

CASE NUMBER:  1919013

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Denis Dragovic

DATE:9 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 09 June 2022 at 9:56am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iran – incorrect information given in visa application – name, date of birth and citizenship – passport cut into pieces found on vessel and reconstructed – department’s notice referred only to statelessness/citizenship so no consideration of name and date of birth – difficulty of stateless persons accessing official documentation – country information – no education and limited informal work opportunities more consistent with being stateless Faili Kurd – availability of non-genuine passports and departure procedures – consistent and credible evidence – real state of satisfaction required for cancellation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)

CASE
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant arrived to Australia as an irregular maritime arrival [in] October 2010. He was granted a protection visa on the 22 Feb 2012. This visa was cancelled on 5 July 2019 by way of a notice of intention to consider cancellation issued on the 1 April 2019.

3. The applicant is currently in a de facto relationship with a formerly stateless asylum seeker from Iran who was granted protection in Australia separately to the applicant (they met at a detention centre) and is the mother of his child, [an age]-year-old Australian [citizen].

4. The delegate cancelled the visa on the basis that they were not satisfied the applicant was stateless and that instead, he was and remains an Iranian citizen. The delegate reached this conclusion based upon the availability of the biodata page of what appeared to be an Iranian passport. This page was found cut up into small pieces on the vessel upon which the applicant had arrived to Australia.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 22 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and Kurdish and English languages.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

8. 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

9. 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.

10. 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.

11. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s 107 notice?

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) (no incorrect answers are given or provided).

    101 Visa 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.

13. The notice of intention to consider cancellation (NOICC) identified the evidence upon which the delegate had identified a breach of s 101(b). This included inconsistent information pertaining to the applicant’s name and date of birth alongside the existence of a reconstructed Iranian passport suggesting that the applicant held Iranian citizenship.

14. Regarding the alternative personal details provided by the applicant, the NOICC detailed the following mentions of the applicant’s date of birth and name:

    a.During the biodata interview on 26 October 2010 the applicant is said to have identified himself as [the applicant] born on [Date 1]

    b.During the entry interview he is said to have admitted to having left on a non-genuine passport under the name of [Alias] born on [Date 2]

    c.In the protection visa application, he is recorded as stating his name as [the applicant] date of birth [Date 3]

    d.In the statement of claims accompanying the protection visa application it is recorded as stating that he was born on [Date 4]

15. The delegate did not reach a conclusion regarding these inconsistencies until he further considered the reconstructed Iranian passport which is described in the NOICC as follows:

    The Document Examination Unit of the Department have reconstructed an Iranian passport retrieved from the wheelhouse of the vessel on which the visa holder arrived on Christmas Island [in] October 2010. Based on the reconstruction and analysis that followed, the Iranian passport contained the following bio data details:

    Surname: [the applicant – Surname, alternative spelling]

    First name: [the applicant – given name, alternative spelling]

    Date and place of birth: [Date 5], Tehran

    Passport number: [Number]

    Date of issue: [2010]

    Date of expiry: [2015]

    The biodata details of this passport were cross-referenced against the biodata details provided by the individuals who arrived on this vessel [in] October 2010. Based on the similarities between the biodata details given by the visa holder and the biodata details of this passport, it is reasonable to consider that this Iranian passport belonged to the visa holder. I consider the Iranian passport indicates that the visa holder is a documented Iranian citizen. I note that country information indicates that Iranian passports are only issued to Iranian citizens and serve as proof of Iranian citizenship.

16. The delegate then concluded:

    As such, it appears the visa holder is a documented Iranian citizen and his true identity is [the applicant, alternative spelling] born on [Date 5] in Tehran.

17. Further in the NOICC the delegate similarly concludes:

    Based on the analysis of the reconstructed Iranian passport and forensic analysis, I consider that you are an Iranian citizen and not stateless as declared on your Protection (subclass 866) visa application. I also consider your true identity is [the applicant] born on [Date 5] in Tehran.

18. The NOICC does not provide further evidence upon which the delegate decided to favour the biodata in the reconstructed passport over any of the other evidence provided by the applicant. Instead, the delegate simply reasons, ‘I acknowledge the visa holder maintains he is a stateless Faili Kurd and his true identity is [the applicant] born on [Date 3] in Tehran, Iran. However, I note the visa holder has not been able to provide any documentation to prove his claimed identity…In the absence of evidence confirming his identity, I do not consider it credible that he is [the applicant] born on [Date 3] in Tehran, Iran and that he is stateless.’

19. The findings made by the delegate are relevant as they form the basis upon which he goes on to specify the incorrect information the applicant had provided. The delegate identified a series of questions in the application form, being questions 21, 42, 43, 44, 45 and 46 as being incorrectly answered. These questions do not relate to the applicant’s name or age but only to his citizenship and specifically to his claim that he was stateless.

    - Question 21 of Part C of Form 866, which stated “Do you hold any other citizenship or are you a national of any other country?” the visa holder ticked the box denoting “No”. I consider this answer to be incorrect as the evidence before the Department indicates that the visa holder is an Iranian citizen and was so at the time of his Protection visa application.

    - Question 42 of Part C of Form 866, which stated “Why did you leave that country?” the visa holder answered in his statement of application for RSA dated 9 January 2011 that he faced significant discrimination in Iran because of his ethnicity as a Faili Kurd, being stateless and unlawful in the country. The visa holder stated that he was denied access to services and protections of the Iranian state. I consider this answer to be incorrect as the evidence before the Department indicates the visa holder was an Iranian citizen at the time of his Protection visa application. As an Iranian the visa holder would have had access to the government services, social services, benefits and protections available to all Iranian citizens.

    - Question 43 of Part C of Form 866, which stated “What do you fear may happen to you if you go back to that country?” the visa holder answered in his statement of application for RSA dated 9 January 2011 that he would continue to be persecuted because he was stateless. I consider this answer to be incorrect as the evidence before the Department indicates that the visa holder was an Iranian citizen at the time of his Protection visa application. According to available country information, documented Iranian citizens who return to Iran, even after a long period away, are unlikely to be questioned about their absence. As a documented Iranian citizen there is no evidence the visa holder would be of interest to the Iranian authorities if he returned to Iran.

    - Question 44 of Part C of Form 866, which stated “Who do you think may harm/mistreat you if you go back?” the visa holder answered in his statement of application for RSA dated 9 January 2011 that the authorities would mistreat him once they found out that he sought protection from another country. I consider this answer to be incorrect as the visa holder’s claims were based on his status as a stateless person, whereas the evidence before the Department indicates that the visa holder is an Iranian citizen and was so at the time of his Protection visa application. As a documented Iranian citizen there is no evidence the visa holder would be of interest to the Iranian authorities and security agencies for the reason of being a stateless undocumented person.

    - Question 45 of Part C of Form 866, which stated “Why do you think this will happen if you go back?” the visa holder answered in his statement of application for RSA dated 9 January 2011 that due to being stateless and seeking protection in another country, he would be viewed as a traitor by the Iranian authorities. I consider this answer incorrect as the visa holder’s claims were based on his status as a stateless person, whereas evidence before the Department indicates that the visa holder is an Iranian citizen and was so at the time of his Protection visa application. As a documented Iranian citizen the visa holder would not be of interest to the Iranian authorities for the reason of being a stateless undocumented person as stated in his Protection visa application.

    - Question 46 of Part C of Form 866, which stated “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” the visa holder answered in his statement of application for RSA dated 9 January 2011 that Iranian authorities could not protect him as he did not have permission to live in or return to Iran. I consider this answer incorrect as the visa holder’s claims were based on being an undocumented stateless person, whereas evidence before the Department indicates that the visa holder is a documented Iranian citizen. As a documented Iranian citizen there is no evidence he would be of interest to the Iranian authorities for the reason of being a stateless and undocumented person.

20. It is not in dispute that these questions engage with the issue of citizenship and/or statelessness and that the applicant had in all instances identified himself as stateless. I note that it is relevant that the incorrect information identified by the delegate does not extend to his name or date of birth, although it is related as the source of the concerns raised by the delegate over the name and date of birth is the passport. The delegate specifically concluded in the NOICC by stating

    I consider you have not complied with section 101(b) of the Migration Act in relation to the incorrect answers given in your Protection (subclass 866) visa application. I consider the answer given are incorrect because evidence available to me indicates you are not a stateless person.

21. As the questions identified only relate to statelessness and given that the delegate specifically concluded that the incorrect answers relate to his claims of being stateless, I find that the issue particularised in the s 107 notice is the issue of citizenship/statelessness and not the transliteration of his name or questions about his age.

22. Based upon the finding that the applicant was a citizen of Iran and the delegate having identified that the answers were incorrect he went on to conclude that the applicant had breached s 101(b) of the Act. In turn the visa was cancelled.

23. Relevant to this decision is firstly, whether the grounds for cancellation are made out, and specifically whether the applicant had provided incorrect information pertaining to his claim of being stateless.

    Consideration of whether the grounds for cancellation are made out

24. The primary piece of evidence the delegate relied upon was the passport, noting that the ‘visa holder has not been able to provide any documentation to prove his claimed identity.’ This is a problematic approach. A common situation faced by stateless persons around the world is an inability to access government documentation for reasons of not being considered citizens of that state.

25. The applicant, it appears, was placed in an unfortunate situation by this reasoning. If he is genuinely stateless in the context of Iran, then he would be unable to provide documentation to support his claims, but this appears to weigh against him in the delegate’s reasoning. In the alternative, if he were able to produce some form of official documents, then the delegate would be well placed to claim that he is in breach of s 103 (Bogus documents not to be given) as he was claiming to be stateless and yet was able to access documents or in the alternative in breach of s 101 for claiming to be stateless when the provision of documents accessible by citizens suggested that he wasn’t.

26. For this reason, I will engage with the entirety of the information which pertains to the applicant’s citizenship status in addition to the existence of what appears to be an Iranian passport. This additional information includes consideration of the prevalence of non-genuine passports in the Iranian marketplace and whether his explanation of how he accessed one aligns with country information, his past employment as it relates to whether he had work rights which would only be available if he was either registered as a ‘migrant’ (Iraqi refugee) with the government or a citizen, his education as it relates to an ability for those who are not citizens to access basic education and claims of harassment arising from his statelessness.

    Evidence and findings of fact pertaining to the applicant’s statelessness/citizenship

27. At the hearing the applicant said that he comes from a Kurdish Faili family and that he was born in Tehran, Iran. In his written submissions at the time of the visa application in 2012 he wrote that his parents were born in Iraq. He claims that his parents and [siblings] were expelled from Iraq in 1980 by Saddam Hussein. He claims that his family have not returned to Iraq since the time they were expelled. He claims that ‘to the best of my knowledge they do not have any Iraqi documents and are not able to obtain Iraqi citizenship.’

28. There is considerable independent country information about the forcible expulsion of Faili Kurds which was triggered by the Iran-Iraq war and a distrust by the Iraqi regime of those they perceived to be aligned with Iranian interests.[1]

    [1] >

    The applicant explained that his parents held a ‘green’ card in Iran, which was a form of registration with the government as a ‘migrant’ and allowed the holder some rights and limited access to some services. The applicant also claimed that later they were encouraged to exchange it for a ‘white’ card, which uses the word ‘refugee’, but they were never issued these ‘white’ cards. He wrote that this occurred about seven or eight years earlier, which would put this event around 2004 or 2005 in the Gregorian calendar.

29. Country information regarding ‘green’ and ‘white’ cards states that Iraqi refugees who arrived in Iran between 1979 and 2001 were issued with ‘green’ cards.[2] Since January 2002 Iranian authorities have required that green card holders exchange them for a new generation of white cards.[3] Three years after the introduction of the new white cards, DFAT advised that many green card holders had yet to obey the government exchange stipulation. DFAT noted that some green card holders were still able to enrol their children in school. DFAT also added that it ‘had not been the practise [of the authorities] to deport green card holders back to Iraq.’[4] The applicant’s claims of his parents being expected to transition their ‘green’ cards to ‘white’ cards aligns with country information.

    [2] Department of Foreign Affairs & Trade 2010, Country Information Report No. 10/13 – Iran: Faili Kurds

    [3] Department of Foreign Affairs and Trade 2005, DFAT Report 412: RRT Information Request IRN17532, 6 October

    [4] Department of Foreign Affairs and Trade 2005, DFAT Report 412

30. According to the applicant’s information, being born in [Year], would mean that his compulsory school years would have spanned the late 1990s and early 2000s. This is a period when the ‘green’ cards were in force. Country information notes that ‘in almost all cases Iranian authorities will issue an amayesh card to a child born to an Iraqi refugee father who has a valid amayesh card.’[5] An amayesh card is described as being the card granted to migrants who cross the border and includes ‘green’ cards that the applicant described his parents as holding. As the applicant has stated that his parents had green cards, the applicant would have had a green card according to this country information and as such would have had the benefits available to green card holders. But country information regarding green card holders accessing Iranian education is not clear. In 2001 DFAT provided advice which stated that green card holders faced difficulties accessing formal education because the shenasnameh (a document similar to a birth certificate) is a prerequisite for entry into schooling but in a June 2000 DFAT report it advised that green card holders had access to government schooling.[6] Further country information indicates that,

    [A]ccess to education for children is theoretically possible because of an Iranian Government policy allowing all children access to education. Undocumented children usually miss out on available places, because Iranian citizens and documented refugees are given priority. Also, attendance at school risks bringing undocumented family members to the attention of Iranian authorities.[7]

    [5] Department of Foreign Affairs and Trade 2005, DFAT Thematic Report: Faili Kurds in Iraq and Iran, 3 December 2014 at [3.39]

    [6] RRT Research Response IRN31486 page 9

    [7] Department of Foreign Affairs & Trade 2010, Country Information Report No. 10/13 – Iran: Faili Kurds

1. In 2008 the U.S. Committee for Refugees and Immigrants (USCRI) reported that Iraqi refugee children were generally ‘able to attend public school for free’. USCRI adds, however, that in 2008 there were cases reported of local government officials suspending ‘education services for refugees to encourage them to repatriate.’[8]

   [8] US Department of State 2010, Country Reports on Human Rights Practices 2009 – Iran

2. DFAT reported in 2005 that it had received ‘conflicting reports about the ability of green card holders to register their children in Iranian schools’. DFAT stated that in 2005 at least some green card holders were still able to enrol their children in Iranian schools without obtaining and presenting a white card.[9]

   [9] Department of Foreign Affairs and Trade 2005, DFAT Report 412

3. I put to the applicant through correspondence following the hearing the above country information that indicates that as green card holders he and his siblings may have had access to basic education despite claiming that he had none.

4. The applicant responded by way of a statutory declaration explaining that he checked with his father to find out whether he had held a green card. His father is purported to have responded that in the beginning his family did have green cards, but they didn’t provide them any real benefit. The applicant’s father said that they were still harassed and discriminated against despite holding the cards. While in the first few years they had renewed the cards every year, after several years in Iran the family stopped applying for the cards as they didn’t see value in doing so and having to deal with the authorities was an unpleasant experience.

5. Subsequently, when the applicant reached school age his father tried to get a green card to facilitate his access to an education, but his request was refused. His father was told that as they didn’t hold valid green cards, they couldn’t issue a new one.

6. The applicant wrote in his statutory declaration of 2022 that some time later his parents were led to believe that they could get the new white cards which were replacements for the older green cards. The applicant wrote that after they handed in their old green cards, they never received the replacement white cards.

7. Country information suggests that the white cards were issued irregularly and mostly to, ‘to highly educated individuals and established professionals.’[10] I accept that the authorities may have been reluctant to transfer all green card holders to white cards as the presence of Iraqis was an ongoing burden to the system and as such accept that the applicant’s family did not receive their white card.

   [10] Document #1311977; ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation >

   I find the applicant’s narration regarding his lack of education convincing as it is consistent with his evidence from the beginning of his engagement with the Australian government and it aligns with country information. As such I give some weight in favour of the applicant’s claims that he was stateless based upon the family having had green cards which would indicate the possibility of being statelessness but also their efforts to acquire one for the purposes of obtaining an education for the applicant, which is also a possible indicator of statelessness in Iran.

8. The applicant recalled that he was never treated like an Iranian. As he couldn’t access education at the age of [age range], he said that he had to work while other kids were attending school. He said that he studied from home where his father taught him basic maths and writing. I note that his oral evidence aligns with his written application form from 2012 in which he wrote that he had zero years of education.

9. The applicant described the type of work he undertook as ‘[component] work’ making [Products 1] and then from the age of [age range] [making Products 2].

10. His claimed that his first job was arranged through his father. He claimed that the job was to clean the floor and make tea and then after some time he started to make [Products 1]. Initially he would be asked to cut [components] to certain sizes.

11. I asked where they got their [component] from, he said that they had contracts with suppliers. I put to him that he had written in his protection visa application that his job from 2002 to 2009 was ‘to collect and sell scrap [component]’ but he hadn’t mentioned that at the hearing. He said that he would sell [component] scraps left over from [making Products 1]. I asked why he didn’t mention that earlier. He explained that most of his work was making [Products 1], but when customers came in and his boss was out, they would sell scrap [component] also. I asked why the information on the PV form was incomplete, not mentioning that he was making [Products 1]. The applicant blamed it on the interpretation services provided to him when he had first arrived to Australia.

12. I asked the applicant to name the [Products 2] store that he alleges he worked in making [Products 2]. The applicant identified the same [Products 2] shop he had named in the PV application.

13. In response to correspondence following the hearing asking for further information pertaining to his work the applicant explained:

    I always described my employment in the early years as ‘working with [component]’ and mentioned selling [component] scraps. However, I may not have described every task or part of the job that I undertook in this job. My work was not official by any means, but it involved various tasks at various times.

    When I first started working at a workshop, I was cleaning floors and making tea for the owner. Then I eventually learned other tasks. The scrap [component] collection and sale was something that I did at the same time or on the side depending on the circumstances. I did whatever it took to try and make a little bit of money. The scrap [component] that I collected was either from the workshop (such as offcuts etc.) or from any other places where I could find scrap [component]. At times where there was no work at the workshop, I would sell the scraps that I had collected, to other places or shops which bought them from me.

14. I note that country information indicates Faili Kurds with green cards were officially not permitted to work, however it also is indicated that many did work informally and that authorities turned a blind eye to this.[11]

    [11] Department of Foreign Affairs & Trade 2010, Country Information Report No. 10/13 – Iran: Faili Kurds

15. While by the applicant’s own admission he had work, he explained that it was not registered or legal. The applicant’s responses to questions asked at the hearing and by way of correspondence were consistent and convincing. As such I accept that the applicant worked in a role that was in the informal employment sector. This fact lends further weight to the applicant’s claims that he was stateless.

16. The applicant said that as a child he played [Sport]. He claimed that his trainer was impressed with his skills and as a result he was taken into the Iranian [Sport team]. At the hearing he said that they wanted him to progress further but when they learned that he didn’t have documents he claims that he was physically hit by the recruiter and abused, being told that the ‘oxygen he breathed is enough for you’, implying, according to the applicant, that Faili Kurds such as himself do not aspire to anything more.

17. In his written statement he wrote that he played [Sport] for a team called [Name] and from there he was selected for the national team. He was sent to the national federation offices with a letter from his coach who knew that he was undocumented. He claimed in his written statement that the person who he spoke with from the national federation tore up the letter in front of him and slapped him across the face saying that Arabs were responsible for killing Iranians and that he would never let him play on the national team.

18. While the specific content of the narration of these events differed between his oral evidence in 2022 and his written application in 2012 there were no inconsistencies. As such I place some weight when considering his credibility on the applicant’s consistent narration of events as they pertain to recollections of harassment arising from his statelessness.

19. The Tribunal received a submission by the applicant’s de facto partner of 12 years and mother of his [child] who attested that the applicant is stateless based upon what he has told her and having spoken with his family. I place some weight on this evidence.

20. Regarding the passport that is at the heart of this case, the applicant said that his father had arranged for it. He said that he was only [Age] years of age at the time. I put to him that arranging for a fake passport was very expensive, yet according to him, he was from a poor family. He said that his father borrowed money from among the community and that since obtaining his visa in Australia he was sending money back.

21. He said that his father chose him, rather than his other siblings, to leave the country because he was young and could support the rest of the family. He said that his mother had to speak to him about this issue for a few days trying to convince him that he had to go because of their situation.

22. On the day of his departure, he claimed that two men took him and his father in a car to the airport. He said that he was very scared, but the men kept telling his father not to worry and that they had assisted other people to leave the country before. He said that he was told to be confident when he hands over the passport.

23. When I asked him about the requirement to have completed military service before departing Iran and how he had avoided showing proof of this at the immigration counter, he said that as his age was made to be substantially over the military age (hence the discrepancy between the passport age and his claimed age) there was less attention given to it, but he also believes that the person with him had a connection or worked in the system and made it possible. He said that corruption is everywhere in Iran and with money you can do many things without questions being asked. He said that he was directed to go to a specific counter to pass through immigration and then after that he was on his own.

24. In the written submission in response to the Department’s NOICC the applicant also responded to the issue of military service by noting that they were aware of the possible risks due to his actual age and for that reason they increased the age on the passport to reduce the risk of being stopped and asked for documentation relating to the completion of his military service.

25. The representative provided historical information pertaining to the various types of Iranian passports over the past several decades. Relevant to the period that the applicant obtained his is country information that states, ‘the B-series was introduced in 2002, with the portrait photo printed onto the paper with an inkjet printer. The paper is laminated.’ More modern security features were introduced only after the applicant had already arrived to Australia. The representative argued persuasively that it would have been easier to forge the B-series passport than it is now and as such I accept that country information relating to the forging of passports needs to be contemporaneous to the B-series passports being available.

26. Country information compiled by DFAT from 2005, five years prior to the applicant’s departure, regarding the obtaining of non-genuine passports and passing through immigration includes the following:

    A.C. Detection at airports:
    A.C.1 Passport officials use a computerised database to track the movement of Iranian and other individuals through Iran's international airports. We have heard of some trouble operating the system at the newly opened Imam Khomeini International Airport south of Tehran.
    A.C.2 Airport authorities have no discretion to allow a person with a false passport or on a blacklist to leave Iran. Bribery is common in Iran and it is possible bribes may be paid to avoid arrest at the airport. However, it is unlikely that a bribe could convince an airport official to allow a person on a blacklist or without a valid passport to board an international flight.
    A.C.3 Anyone attempting to leave Iran on a false passport would be arrested and held for questioning by Iranian authorities.
    

    [12] Department of Foreign Affairs and Trade (DFAT) 2005, Country Information Report No. 05/30: Exit procedures from Iranian airports, Country Information Service, 21 June. (CISNET CX124083)

    .7.2.1 Fraudulent Iranian passports are either a) those seen abroad and b) those seen in Iran. To date those in (a) have been produced and used primarily in Turkey. Buyers are generally Iranian males who have gone to Turkey to escape the draft in Iran. Under (b), counterfeits and "look-alikes" are rarely seen in Iran. Some document alteration is seen and this is primarily limited to photo-substitution. Other forms of fraud seen but which are rare, include counterfeit airport entry and exit stamps and the obtaining of genuine passports through use of altered or counterfeit national I.D books.[12]

27. Other information collated by the Independent Protection Assessment Office Country Advice unit in 2011 included:

    In 2006, based on consultations with UNHCR personnel in Tehran, UNHCR advised the Immigration and Refugee Board of Canada that counterfeit Iranian passports were widely available in the black market but that local authorities are generally adept at identifying these documents via a ‘double check’ mechanism in the law enforcement database which tracks passport issuance. It further notes that a new passport application system was instituted in Iran in March 2005 and quotes the director general of the Iranian Police Passport Department who claimed that there were no reports of false passports between March and August 2005.[13] A 2008 article by the Guardian (UK) also reported on the ‘roaring trade in illegal passports’ in Iran and quoted a local who said that a friend had been caught with a false passport at the airport and had received six months in prison and extended military service.[14]

    An airline liaison officer and document advisor to the embassy consulted by the Danish Immigration Service confirmed that some Iranians had departed on forged documents. A person found with false documents would be subjected to ‘serious questioning’ at the airport and may be fined. It was reported to be unclear whether such a person may be at risk of detention or imprisonment.[15] The Danish Immigration Service also received reports that leaving Iran illegally through an airport is very difficult due to thorough security checks. It’s source, a ‘western embassy’, stated that bribery of airport personnel may be possible, but would involve bribing many staff members as there are several checkpoints at the airport.[16]

    Verification of passports and documentation at departure points at land borders and airports is carried out in the last phase of exit procedure. This means that in airports, after the tickets are checked and the luggage is delivered to the airline and before getting into the waiting area for departure, the passports shall be checked by a Disciplinary Forces officer who verifies in [the] NAJA [law enforcement] database whether the passport is fake and whether the person standing in front of the officer is the same person whose name and photo appears on the passport. The UNHCR official also mentioned that passport verification is carried out in the same way at land borders (31 Mar. 2006).[17]

    [13] Immigration and Refugee Board of Canada 2006, IRN101054.E: Iran: The passport; its features and procedures for application including whether an applicant who was refused a passport would be notified and have recourse; the use and prevalence of fraudulent or counterfeit passports to exit Iran; ease of illegal entry into and exit from Pakistan, Turkey, and Azerbaijan overland, and Oman and the United Arab Emirates by sea; whether authorities seize passports from certain individuals to prevent their departure from the country (2004 - February 2006), 3 April

    [14] Cist, M. 2008 ‘Getting out of Iran’ Guardian (UK), 7 October

    [15] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30 April

    [16] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., -

    [17] Immigration and Refugee Board of Canada 2006, Iran: Exit and entry procedures at airports and land borders, particularly at Mehrabad International airport; identity documents such as birth certificates, and marriage and divorce certificates; incidence of bribery of Iranian border officials to facilitate departure by individuals with fraudulent travel documents or outstanding financial, military or legal obligations, or who are sought by the government for political reasons; the punishment for border officers caught taking such bribes (2004 - February 2006) , 3 April, IRN101052.E

28. I note that country information listed above, states that bribery ‘is common in Iran and it is possible bribes may be paid to avoid arrest at the airport’. I also note that there was a substantial trade in false passports. Conversely there is evidence that suggests that fake passports would be identified, through the immigration control checks, though it is not clear whether the passport the applicant held was fake or a genuine passport that was fraudulently obtained or a genuine passport that was altered and as such whether a genuine passport fraudulently obtained or altered would be picked up as easily as a fake passport. According to the applicant he is unsure whether the passport he travelled on was a forgery or a fraudulently obtained passport. With the latter it would be easier to pass through security and avoid much of what is described in the above country information.

29. In considering whether there are grounds for cancellation the Tribunal notes that it is required to reach a real state of satisfaction. In Zhao v MIMA, the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[18]

    While that case was concerned with cancellation under s.119, the Court’s comments are equally applicable to s.109 cancellation. The delegate’s recourse to a lack of evidence argument is problematic not only under law but for the above-mentioned reasons of a purported lack of access to documentation for reasons of being stateless.

    [18] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32]

30. The evidence in this specific case is not clear cut in many ways. The existence of a passport is suggestive but not conclusive evidence of the applicant being an Iranian citizen. But the applicant’s evidence about how he obtained it and country information on the availability of fake and fraudulently obtained passports suggests that the applicant’s story is plausible. The applicant has claimed that he was harassed during his time living in Iran, that he didn’t have access to education and that he was not employed legally. His evidence in this regard has been consistent and convincing. It also aligns with available country information which itself is vague and sometimes contradictory. That the country information is not clear, I find, not to be a reflection on the poor state of research on these matters, but rather, the nature of the Iranian polity during the 1990s and early 2000s. The country was not a modern state such as Australia today, but one where corruption festered, laws were malleable and when applied they were applied inconsistently.

1. The most concerning of the applicant’s claims is that of his departure through the Iranian airport. He claims that he posed as being five years older than he actually was (at the hearing he claimed that he was told to say that he was [Age] years old which does not align with any documentary evidence or earlier submissions and claims and as such I give the applicant the benefit of the doubt). It is difficult to appreciate how a [Age]-year-old could pass as a [Age]-year-old (an age when most men would have completed their military service) without at least being asked questions about whether he had the required military service documentation. The applicant said that he believed that someone at the counter had been paid off. Country information suggests that this was very difficult at the time. But very difficult does not mean impossible and that aside, it is possible that the official at the counter did accept that he looked the age his passport stated or alternatively the official simply didn’t look at the passport very thoroughly.

2. Requiring a real state of satisfaction imposes an approach that would make it wrong to identify one piece of country information, such as ‘leaving Iran illegally through an airport is very difficult due to thorough security checks’ and to cancel the visa upon this basis. Instead, this information suggests the applicant’s passage through the airport may not have been likely according to one view, but even in this view it would have been possible. When looking at his passage through the airport I see no evidence that brings me to a real state of satisfaction that the applicant’s narration of events is not accurate and in turn that his passport wasn’t fraudulently obtained. Similarly, none of the other evidence I have heard regarding his earlier life in Iran brings me to a real state of satisfaction that the applicant was not stateless. 

3. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   DECISION

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

   Denis Dragovic
   Senior 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.