1933029 (Refugee)

[2023] AATA 1293

1933029 (Refugee) [2023] AATA 1293 (16 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Navid Koushke Baghi (MARN: 1681603)

CASE NUMBER:  1933029

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Nicole Burns

DATE:16 February 2023

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 16 February 2023 at 11:42am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – incorrect information provided in visa application – citizenship – stateless Faili Kurd or Iranian citizen – departure from Iran on Iranian passport and Iranian driver’s licence provided to VicRoads in order to obtain Victorian licence – claims that passport genuine but fraudulently obtained and licence fake – passport obtained through people smuggler, with corruption and fewer security features at the time – licence obtained through contact in Australia and certified copy accepted without question by VicRoads staff – original examined at hearing and accepted as fake – eligibility for Iraqi citizenship – unaware that parents had reacquired Iraqi citizenship – return to Iraq and Iran on Australian titre de voyage – country information – application procedure for Iraqi citizenship – no real state of satisfaction that grounds for cancellation made out – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107(1)(a), 108(b), 109(1), 424A, 438

CASES
Burton v MIMIA [2005] FCA1455
MIAC v Brar [2012] FCAFA 30
Saleem v MRT [2004] FCA 234
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235
Zhong v MIAC [2008] FCA 507

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 delegate cancelled the visa on the basis that they concluded the applicant had provided incorrect answers in certain respects in relation to his protection visa application, and failed to answer some answers, in breach of s 101 of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant is a [Age]-year-old man originally from Ilam, Iran.  According to Departmental records [in] December 2010 he arrived on Christmas Island as an irregular maritime arrival having left Iran earlier (via [Country 1]).  He was granted a protection visa on 16 June 2011 (having applied on 10 June 2011) based on his alleged status as a stateless Faili Kurd who did not have Iranian or Iraqi nationality. 

4. The applicant made an application for Australian Citizenship on 24 July 2015, which is pending.  He was interviewed by the Department’s identity section on 26 June 2018.

5. The applicant’s protection visa was cancelled on 3 January 2020, the subject of this review. 

6. The applicant appeared before the Tribunal on 13 July 2022 where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from his wife, [Ms A], and his niece, [Ms B].   

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

8. The Tribunal notes the applicant’s brother, [Mr C], came to Australia shortly after the applicant did, applied for and was granted protection, and had his protection visa cancelled, as did his wife and daughter.  They sought a review of their cancellation decisions and the same member is determining their cases.[1]

   [1] [Mr C] (AAT No: 2001485); sister-in-law [Ms D] (AAT No. 2001551); and niece [Ms B] (AAT No. 2001552). 

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

   Non-disclosure certificate

10. The Tribunal has before it the applicant’s Departmental file relating to the cancellation of his protection visa.[2]  The delegate has placed restrictions on some of the material contained on the cancellation file given to the Tribunal by the Department by issuing a certificate under s 438 of the Act dated 30 April 2020. That section permits the Minister to certify that the disclosure, otherwise than to the Tribunal, of any matter contained in a document would be contrary to the public interest for any reason specified in the certificate. The Tribunal is satisfied that it states a valid ground of public interest immunity and adequately explains how the disclosure of the information would not be in the public interest.  Accordingly, the Tribunal considers the certificate valid. 

    [2] [Reference].

11. 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. 

12. The Tribunal decided to exercise its discretion to disclose some of the information relevant to the review.

13. Broadly, as discussed at hearing, the information covered by the certificate includes findings of the Department about the applicant’s identity in the form of an identity assessment report (aspects of which was included in the Notice of Intention to Consider Cancellation (NOICC), and some detailed in a letter sent to the applicant for comment pursuant to s 424A of the Act after the hearing); findings of the Department about the applicant’s brother’s ([Mr C]) identity in the form of an identity assessment report; and correspondence between the Department and VicRoads about the applicant’s Iranian driver’s licence.

14. Information about the applicant’s claimed identity and nationality, as well as the applicant and his representative’s responses to that information are discussed in more detail below when considering whether the grounds for cancellation are made out in this case.  Some of the information the Tribunal considers positive to the applicant’s case, for example the correspondence from VicRoads is discussed further below. 

15. Apart from in these ways – including in the Tribunal’s letter – the information which is subject to the certificate has not been provided or otherwise disclosed to the applicant by the Tribunal. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. 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.

18. As set out in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review), in this case the delegate sent the applicant an NOICC dated 19 August 2019 which advised the applicant that his visa may be cancelled under s 109 because of concerns that he did not comply with ss 101(a) and 101(b) of the Act.

19. For reasons explored in more detail below, the delegate concluded the applicant is an Iranian citizen, primarily based on the fact that he had provided an Iranian driver’s licence to VicRoads in order to obtain his full Victorian driver’s licence.  The delegate also considered the applicant was eligible for Iraqi citizenship when he applied for protection, given his parents had reacquired Iraqi citizenship by that time.

20. In response to the notice the representative provided to the Department an undated statutory declaration signed by the applicant, a written submission (received by the Department on 2 September 2019) and supporting documents. 

    Was the s 107 notice validly issued?

21. In his submission provided in response to the s 107 notice the representative argues that the notice was invalid because the source of information relating to the applicant’s Iranian driver’s licence (which led the delegate to suspect he was Iranian, not stateless when he applied for protection) was not sufficiently particularised.  As such the applicant cannot meaningfully respond, except to say he provided a fake Iranian’s driver’s licence to VicRoads, he argues.  The representative submits that therefore the basis for the cancellation has not been sufficiently outlined in the NOICC, and that to constitute a valid notice, VicRoads should provide particulars about how the source concluded the document (that is the Iranian driver’s licence) was real. 

22. Before the Tribunal the representative did not raise the sufficiency and validity of the notice as an issue in his written submission or at hearing.  Nonetheless the Tribunal has considered whether the NOICC was valid, namely whether it complied with the requirements of s 107 of the Act, given this was raised at the Departmental stage.  A notice under s 107 of the Act is required to give particulars of the possible non-compliance: s 107(1)(a). 

23. In the Tribunal’s view the case law establishes the following: the sufficiency of notification is to be tested by reference to the statutory purpose. That is, it must be sufficient 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.[3] It would not be enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular provision.[4] Simply identifying the statutory provision not complied with would not be an adequate provision of particulars for s 107(1)(a).[5]

    [3] Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25]. In that case the Court was considering the requirements of s 119 notifications for the purposes of Subdivision D cancellation but the principle would be equally applicable to s 107 notifications. The decision was cited with approval by the Federal Court in MIAC v Brar (2012) 201 FCR 240: see [57]–[58], a decision that was concerned with an s 107 notification.

    [4] Zhong v MIAC (2008) 171 FCR 444 at [80].

    [5] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [43]-[44].

24. The consideration of whether particulars provided in a notice under s 107 are adequate to satisfy paragraph (1)(a) cannot be separated from the task of the decision-maker under
    s 108(b) to decide whether there was ‘non-compliance in the way described in the notice’: SZEEM v Minister for Immigration.[6] In particular, Smith FM (as he was then) observed at [37] as follows:

    The scheme of decision making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which the person may be deprived of permanent rights of residence and citizenship, explains the legislature’s concerns: (i) that proper notice must be given; (ii) that the notice must contain “particulars”; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.

    [6] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234.

25. His Honour further opined at [38]:

    In relation to an allegation that a general statement was made falsely, the requirement of particulars must, in my opinion, also encompass particulars of the basis on which the falsity is alleged, these must be given with enough detail to allow this recipient a real opportunity to understand and attempt to answer the non-compliance allegation.

26. And at [43]:

    I therefore consider the Tribunal would fail to exercise its jurisdiction if it decided that there was “non-compliance by the visa holder” by reason of the falsity of statements identified in the s 107 notice, where its conclusions as to falsity relied wholly or in part upon adverse findings concerning matters which had not been squarely raised by particulars provided in the notice. I consider in the present case that s 108(b) required the Tribunal, when deciding whether the applicant’s statements falsely claimed a fear of persecution if returned to Jordan, to confine the basis of its decision to the particular allegations which were raised in the s 107 notice as discussed above.

27. In Saleem, Allsop J found that the Tribunal had purported to exercise a power which was not authorised under s 109 by asking itself the wrong questions under s 108(b). Asking whether the applicant had in fact breached s 101 was in error.[7]

    [7] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004) at [61].

28. The Full Court of the Federal Court in Minister for Immigration and Citizenship v Brar [2012] FCAFA 30, observed at [56]:

    A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice.

29. The Tribunal notes that simply including the information provided by a visa holder in an NOICC and asserting non-compliance does not, of itself, constitute ‘particulars’ of non-compliance in accordance with s 107(1)(a). There must be more, as observed by Lander J in Zhong v Minister of Immigration and Citizenship [2008] FCA 507 at [80]:

    In my opinion, this notice did not particularise the possible non-compliance. It was not sufficient to state that the appellant might have breached s 101 of the Act. More was necessary. If both paragraphs of s 101 were to be relied on, then the notice needed to give particulars of the facts and circumstances which gave rise to the possible breach of each of the paragraphs. It is not enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular section.

30. It is not, however, necessary to provide particulars of the information relied on by the delegate as expressly required by s 119(1) of the Act, which is in different terms (refer Burton v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA1455). In some cases, it may be difficult to make a meaningful distinction between adequate particulars of breach and information that led the delegate to reach the required state of mind. Whether particulars of non-compliance are adequate will depend on the nature of the non-compliance and the terms of the notice.

31. In this case, the NOICC particularises the possible non-compliance as providing incorrect information that the applicant was stateless and feared persecution from the authorities and others in Iran on this basis.  This was demonstrated to be incorrect by the fact the applicant had provided an Iranian driver’s licence to VicRoads in order to obtain a Victorian driver’s licence, which, the delegate reasoned, contained an Iranian National Identity (NID) card only given to Iranian citizens (with reference to country information).  The delegate concluded the applicant is (and was) an Iranian citizen, not stateless, at the time of the visa application.

32. The Tribunal considers there are flaws in this reasoning and has concerns as to the evidentiary basis upon which such conclusions were reached (discussed further below (elsewhere)), however this does not necessarily make the NOICC invalid.

33. Taking into account these considerations, and having a look at the NOICC as a whole, the Tribunal is satisfied that it sufficiently informed the applicant of the basis upon which the cancellation was being considered and gave him an opportunity to respond (discussed in more detail below).  The Tribunal finds the notice is valid on the basis that it does set out what information is contained in the applicant’s protection visa application and related statement is said to be ‘incorrect’.  The NOICC recounts the relevant questions and answers given by the applicant and then identifies the information provided by the applicant and identifies what information the delegate then considers is incorrect, regarding the applicant’s alleged statelessness.  The references in the NOICC to the information contained in Form 866, the statement, together with the references to VicRoads would reasonably, in the Tribunal’s view, have put the applicant in a position to respond (to the potential non-compliance and the basis for that allegation): which he ultimately did, arguing it was a fake Iranian driver’s licence and not probative evidence that he was (or is) an Iranian citizen. 

34. Accordingly, the Tribunal is satisfied that the NOICC complies with s 107.  It contains all of the matters required as set out in s 107 and includes particulars of the possible non-compliance that were sufficient for the applicant to know what case he was required to meet.

35. 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?

36. 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.

    NOICC particulars: alleged non-compliance with s 101(b)

37. The non-compliance identified and particularised in the s 107 notice in relation to s 101(b) was that the applicant had provided incorrect information in relation to his protection visa application by stating that he was stateless, whereas subsequent information before the delegate led them to conclude he was an Iranian citizen, and eligible for Iraqi citizenship at the time of the protection visa application.

38. Specifically, the notice recounts that as part of his Refugee Status Assessment (RSA) the applicant indicated to the Department (at interview on 2 February 2011) that although born in Iran he and his family were stateless Faili Kurds; that his parents were expelled from Iraq in 1981 or 1982 under Saddam Hussein’s regime; his brother, [Mr C] (on Christmas Island at the time) was born in Iraq; and that his parents were issued a Green card in Iran, which was later exchanged for a White card, however as stateless refugees of Iraqi origin, his family had no rights in Iran.

39. The applicant also described difficulties obtaining and keeping jobs in Iran; stated he was unable to obtain insurance, had no right to travel or buy property or purchase a car or have a driver’s licence; and would be stopped in the streets and harassed by the Basij as a Faili Kurd. 

40. The NOICC recounts that on 9 March 2011 an RSA delegate found the applicant was a refugee and on 14 June 2011 the applicant was able to apply for a protection visa.  In doing so he completed the relevant form (Form 866C) answering questions about (among other things), his citizenship status, why he left Iran, what he fears may happen if he goes back there, and why:[8] to which he referred to his request for RSA (statement). 

    [8] Questions 19–23, and 41–46 of Form 866C.

1. On the basis of this (and other relevant) information the applicant was granted a protection visa on 16 June 2011. 

2. However, subsequently, as recorded in the NOICC, the delegate began to doubt the applicant’s claims to have been stateless, and considered he was an Iranian citizen when he applied for protection.  Also that he was eligible for Iraqi citizenship at that time.  The delegate reached these conclusions based on the following considerations, as set out in the NOICC:

   Iranian citizenship

   Iranian driver’s licence

   ·The NOICC records that at his identity interview the applicant stated he obtained a fake Iranian driver’s licence and provided a copy of this to VicRoads to obtain a full Victorian driver’s licence.  The delegate considered it highly unlikely VicRoads would accept a photocopy of a document to issue a full Victorian driver’s licence and suspected that a genuine Iranian driver’s licence in his name was provided.

   ·Given country information[9] indicates from mid-2008 an Iranian NID card, which all Iranian nationals over 18 must hold, is compulsory for obtaining a driver’s licence (among other things), the delegate concluded the applicant was required to provide an original of his 10-digit Iranian NID card to obtain his Iranian driver’s licence.  They noted the driver’s licence is valid for 10 years.

   ·The relevant Victorian authorities confirmed that the applicant provided his original Iranian driver’s licence which listed his 10-digit NID number[10] to VicRoads [in] February 2012 (not a photocopy) to obtain a full Victorian driver’s licence. 

   ·As the applicant held an Iranian driver’s licence issued in his name which bears his 10-digit Iranian NID number, it appeared to the delegate he was an Iranian citizen and not stateless at the time he applied for protection.

   Departure from Iran on an Iranian passport

   ·According to the delegate in the NOICC, country information does not support the applicant’s contention at his identity interview that he departed Tehran Airport in Iran on a fraudulently obtained genuine Iranian passport (which contained his name, DOB and photo) without any complications.  That is because country information[11] indicates it is extremely difficult to do so.  This led the delegate to consider it was ‘highly likely’ the applicant’s Iranian passport was genuinely issued by the relevant Iranian authorities in his real identity as shown in his Iranian driver’s licence, and was not fraudulently obtained.    

   The applicant’s brother – [Mr E]

   ·Further, it is noted in the s 107 notice that the applicant’s brother, [Mr C], stated at his entry interview that another brother, [Mr E] ([DOB]) who resides in Iran had previously travelled to [Country 2] in 2014, and voluntarily returned to Iran.

   [9] DFAT Thematic Information Report – Faili Kurds in Iraq and Iran, 3 December 2014, at 3.47.

   [10] No. [Number].

   [11] Immigration and Refugee Board of Canada, 3 April 2006; Danish Immigration Service, April 2009 p 37; and DFAT Country Information Report – Iran, 7 June 2018, at 5.32.

   Iraqi citizenship

3. Additionally, as set out in the s 107 notice, the delegate reached the conclusion the applicant was eligible for Iraqi citizenship at the time he applied for protection based on the following considerations, in summary:

   ·At his identity interview on 26 June 2018 the applicant provided a copy of his father’s Iraqi National Civil ID card (INCIC) issued to him in his Iraqi name ([Mr F]) [in] 2011. 

   ·In support of his identity interview (also on 26 June 2018) the applicant’s brother, [Mr C], provided documentation which indicated to the delegate that his parents – and as such the applicant – obtained their Iraqi citizenship before the applicant travelled to Australia.

   ·The delegate noted that the Iraqi Specific Purpose Authorisation letter dated [December] 2015 submitted by the applicant’s brother, [Mr C] to the Department as part of his Australian citizenship application states the sole purpose of the letter is to give permission for his father to apply for and receive an Iraqi ID card on his behalf, not Iraqi citizenship.  It is noted the letter lists the date the applicant’s father obtained his Iraqi citizenship as [February] 2010. 

   ·Country information[12] indicates that all Iraqi nationals must have an INCIC; on 1 January 2016 the new Iraqi national identity card was introduced which contains high security features, however at the time these were only issued in Iraq since the technology was not extended to overseas Iraqi embassies; and people applying from abroad would be issued the old style card. 

   ·The applicant’s brother also provided a copy of his parents’ Iraqi National Civil ID cards and certificates of Iraqi citizenship issued on [date] 2010 (father) and [date] 2010 (mother).  The delegate notes that Faili Kurds who lost their citizenship under Saddam Hussein’s regime are entitled to have their Iraqi citizenship returned to them, including those born outside Iraq, according to the Iraqi Nationality Law 2006, and the requirements to apply – according to the Iraqi Ministry of Foreign Affairs website – include a copy of their father or mother’s Iraqi civil ID card and nationality certificate and self-declaration. The delegate considered this indicates the applicant was eligible to hold Iraqi citizenship through his parents from [2010].

   [12] Norwegian Country of Origin Information Centre, Landinfo,

4. As such, the delegate considered that the applicant provided incorrect information by:

   ·Answering ‘no’ to question 21 in Form 866C which asked if he holds any other citizenship, or whether he is a national of any other country.

   ·Answering ‘no’ to question 22 in Form 866C about whether he has a right to reside in, whether temporary or permanently any country(s) other than his country(s) of nationality or former country(s) of habitual residence.

   ·Stating he was born in Iraq[13] however his parents were exiled from Iraq to Iran under Saddam Hussein’s regime, and that conditions in Iran for Faili Kurds were becoming intolerable and he could not see a future for himself there as he had no rights, human dignity or identity in answer to question 42 of Form 866C which asked why he left Iran.

   ·Claiming to fear persecution as a stateless Faili Kurd; and face serious harm by the Etelaat (part of the Sepah) who will accuse him of being a spy and leaving the country illegally, and that they may torture him or imprison him when they realise he is a Faili Kurd and his treatment would be worse in answer to questions 43, 44 and 45 of Form 866C which asked what he feared may happen if he goes back to Iran; asked who he thinks may harm or mistreat him and why, if he goes back to Iran.

   ·Stating he has no legal right to live in another part of Iran, and that the government will not protect him because he is a Faili Kurd with no identity documents in answer to question 46 of Form 866C which asked whether the applicant thinks the authorities of Iran can and will protect him if he goes back there, and if not, why.

   [13] It appears the delegate erroneously wrote ‘Iraq’ instead of ‘Iran’ as indicated elsewhere in the NOICC (and decision record).  The applicant’s place of birth (Iran) is not in dispute.

5. The Tribunal notes the delegate omitted to mention whether the applicant also provided an incorrect answer to question 19 (in addition to the above), which asks his citizenship at birth, (to which he answered ‘stateless’) in this part of the s 107 notice. 

   NOICC particulars: alleged non-compliance with s 101(a)

6. The non-compliance identified and particularised in the s 107 notice in relation to s 101(a) related to the applicant leaving blank the field to provide an answer to question 20 of Form 866C – which asked his current citizenship.  This is because, according to the delegate, verification from the ‘relevant Victorian authorities’ indicates the applicant provided an Iranian driver’s licence to VicRoads to obtain a full Victorian driver’s licence [in] February 2012; and that in order to obtain an Iranian driver’s licence an applicant must have an Iranian NID card, which is issued to Iranian citizens.  By holding such a document, it appeared to the delegate that the applicant was an Iranian citizen at the time he applied for protection and therefore should not have left question 20 blank.

   Response to the NOICC

7. In an email dated 2 September 2019 provided in response to the NOICC the representative provided a statutory declaration[14] from the applicant.  In it the applicant does not agree with the alleged non-compliance in the s 107 notice and states that he was not – and continues not to be – an Iranian citizen.  He also states that he did not have a right to reside in Iraq.   

   [14] Signed and witnessed, however undated.

8. With respect to his Iranian driver’s licence, the applicant repeats that it was fake, as was the number on it; and he is unsure where the number came from.  He provided it to VicRoads as it was a faster process to obtain his Victorian driver’s licence.  He explained that the only legitimate document he had in Iran was a White card with a registration number on it.

9. Additionally, he confirmed he left Iran on a false passport, obtained by a people smuggler in 2010.  At that time he went through airport security and the only check that was completed was that a person at security would review a person’s passport and then let them through.  He said technology was not that advanced then, and he does not believe Iran was particularly concerned with people leaving, rather with people entering the country.  He also states that the conditions of him paying the people smuggler to obtain a false passport included to pass airport security and that when he arrived in [Country 1], he would provide them with the original.

10. With respect to his parents obtaining Iraqi citizenship, he states that he did not find this out until the previous year when he completed his identity assessment interview.  He states that his brother and he had, separately, applied for citizenship so his brother decided to try and organise some documents from their parents to confirm their identity to the Department.

11. Additionally, he was not aware that his brother had tried to obtain his Iraqi national identity document in 2015 at that time, noting that although they are in contact, they mainly talk of superficial topics, given the big age gap between them. 

12. With regard to his right to obtain Iraqi citizenship, the applicant states that he would have to take steps to obtain it which he has not done.  Therefore he does not have a right to reside in Iraq. 

13. In his submission provided to the Department in response to the s 107 notice the representative contends that the applicant has never been a citizen of Iran; he does not have a current or previous right to reside in Iraq; and the driver’s licence presented to VicRoads is a fake Iranian driver’s licence (as was his Iranian passport used to depart Iran).  The representative states that according to the applicant the only valid identity document he ever held in Iran was his Green card which was then updated to a White card. 

14. The applicant (and representative) also addressed the discretionary factors, arguing that his visa should not be cancelled for several reasons if the grounds are made out.  He provided several documents including a copy of his marriage certificate; his son’s Australian birth certificate (who was born in [Month, Year]); a copy of his change of name certificate; and a copy of the ABN for his [business] in Australia. 

    Decision to cancel

15. On 18 November 2019 the delegate decided to cancel the applicant’s visa.  In the decision record the delegate noted the matters set out in the s 107 notice and concluded that the applicant did not comply with s 101(b) of the Act by providing incorrect answers to questions  21, 22, and 42–46 of Form 866C in his application for a protection visa.  She also found he did not comply with section 101(a) because he failed to provide an answer to question 20 of that form. 

16. Having found that grounds for cancellation existed, the delegate then considered whether the visa should be cancelled, including considering the representative’s submissions about such matters. The delegate recorded that, having weighed all the relevant factors, she was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

    Review of the cancellation decision

17. On review the representative provided to the Tribunal a written submission dated 23 May 2022 in which he reiterates that the applicant did not provide incorrect information to the Department regarding his status as a stateless Faili Kurd at the time he applied for protection. 

18. A statutory declaration (undated but witnessed and signed) from the applicant was also provided to the Tribunal at the same time.  In it he sets out his background (and his family’s background); his and his family’s citizenship status at the time of application and now; explains how he obtained his Iranian passport and Iranian driver’s licence; and describes his current circumstances.  He addresses concerns raised in the NOICC along similar lines to his statutory declaration provided in response to it.

19. The applicant provided a certified colour copy of the allegedly fake Iranian driver’s licence in question and at hearing produced the original.    

20. Other material provided to the Tribunal included a statutory declaration dated 22 May 2022 from the applicant’s wife (who was born in Australia and is an Australian citizen) who states that they were married in January 2017 but have been together since June 2011 and have two children.  She described their lives together and the possible adverse impact on them all if the applicant’s visa is cancelled.   This includes being separated as she would be unable to move to Iran because she is Christian and unable to speak Persian or Kurdish, in addition to this not being in their children’s best interests.

21. Other documents and submissions addressing the discretionary factors, including several support letters from work related associates, and his parents-in-law, and country information about the situation in Iran were also provided to the Tribunal.

22. At hearing the Tribunal discussed with the applicant the relevant contents of the s 107 notice.  He denied there was non-compliance as set out in the notice, reiterating that he was stateless when he applied for protection, not holding Iranian or Iraqi citizenship, and therefore not providing incorrect information in these and related respects at the time.  He explained that he was born in Ilam, Iran but his parents and older siblings were born in Iraq, and expelled from there.  Only his sister, [Ms F], was able to obtain Iranian citizenship, through marriage.  Growing up in Iran they had a White card, issued to Iraqi refugees but with limited entitlements. He said he went to school but had to pay to do so as a Faili Kurd, unlike Persians.

23. The applicant said presently his parents and [sisters] live in Iran, but also spend time in Iraq. He was told by his brother, [Mr C], that his parents applied for citizenship around 2010 but he was unaware of that at the time.  However even if he did know going to Iraq would have been impossible: he was not born there, is unfamiliar with the country, has limited language skills, and due to the poor security situation there. 

24. The applicant said he obtained a fake Iranian driver’s licence after he came to Australia through a contact in Sydney which he used to obtain his Victorian driver’s licence.  He had not even looked into obtaining it in Iran as he was not at the stage to get a car there.  Before going to VicRoads he took a translated copy of his (fake) Iranian driver’s licence to the police station to certify it.  The VicRoads officer looked at it then issued him the Victorian licence.  He said he was young at the time – [Age] – and made a mistake, for which he was sorry.

25. In her oral evidence to the Tribunal the applicant’s wife said she met the applicant soon after he arrived in Australia: he visited the [Workplace] where she was working to attend an English language course.  They married in 2017, and she visited Iran with him to meet his parents in 2013.  He told her he was stateless and spoke a lot about difficulties he and his family had  faced in Iran as a result.  He also told her he did not have a birth certificate, and was born at home.   

26. After the hearing the Tribunal invited the applicant to comment on potentially adverse information in his case in a letter dated 29 August 2022 pursuant to s 424A of the Act (with a copy of the non-disclosure certificate attached).  The representative provided a written response dated 12 September 2022, as well as a translated letter from [Mr E] (the applicant’s other brother), considered further, below, where relevant.  

    Findings about the alleged non-compliance

27. The Tribunal has considered the information contained in the NOICC, the applicant’s and his representative’s response to the notice, the applicant’s and his wife’s oral evidence to the Tribunal, the written submissions before the Tribunal, the applicant’s statutory declaration provided to the Tribunal, his response to the Tribunal’s s 424A letter, and other relevant evidence before it to determine whether the ground for cancelling the visa is made out.  In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that incorrect information was provided.  It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.  However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).  In Zhao v MIMA (Zhao), 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 because 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.[15]

    [15] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

28. While that case was concerned with cancellation under s 116, the Court’s comments are equally applicable to s 109 cancellation, as in this case. 

29. Bearing this case law in mind, the matters set out in the s 107 notice (and the basis for the allegations), as well as the submissions and the applicant’s evidence in this case (and that of related family members), the Tribunal makes the following findings about the alleged non-compliance with ss 101(a) and 101(b) of the Act.

30. At issue is whether the applicant was stateless, and not an Iraqi or Iranian citizen, at the time he applied for protection, and depending on the answer to that question, whether he provided incorrect information in his protection visa application in these and related respects.

    Iranian citizenship

    Iranian driver’s licence

31. As mentioned, the NOICC records that the delegate considered the applicant provided incorrect information about his (lack of) Iranian nationality, considering he was an Iranian citizen at the time he applied for protection because he had an Iranian driver’s licence, which contained an NID number, indicating he possessed an Iranian NID card, which are only issued to Iranian citizens (she reasoned).  The delegate refers to country information indicating that from mid-2008 an Iranian NID card is compulsory for obtaining a driver’s licence, and that the applicant therefore was required to provide an original of his 10-digit Iranian NID card to obtain his Iranian driver’s licence.

1. In response to the s 107 notice and before the Tribunal the applicant submits his Iranian driver’s licence was fake, having obtained it via a contact in Sydney after coming to Australia, and therefore not evidence that he was an Iranian citizen.  In his statutory declaration to the Tribunal (and his oral evidence) he explains that obtaining the Victorian driver’s licence was straightforward: he just showed the officer behind the counter a certified translated copy of the (fake) Iranian driver’s licence who accepted it without further question.  There was no ‘Overseas Verification Team’ as mentioned by the delegate in the NOICC and cancellation decision record, as far as he could tell. 

2. Further the applicant contends the original copy of the fake licence – which he brought to hearing – is obviously fake, particularly noting the back of the card is blank and has a ‘Canon’ watermark on it.  Additionally, it was supposed to have been issued in 1386 (2007), three years before he left Iran, yet looks brand new and in perfect condition.

3. In his statutory declaration provided to the Tribunal the applicant argues that along with his citizenship application he provided several [Activity] certificates that were issued in Iran (copies of which were provided to the Tribunal on review).  These include a technical certificate for [Specific activity] dated 27August 2007, which displays his personal details.  However, the space in front of ‘Shenasnameh’ (which has been translated as ID number) has been left blank – that is because he did not have a shenasnameh.  He questioned how he could not have had a shenasnameh, if he had an Iranian driver’s licence supposedly issued in 2007. 

4. In his submission to the Tribunal the representative highlights additional characteristics of a counterfeit document – in his view – on sighting the applicant’s Iranian driver’s licence.  This includes that the photo image of the applicant and the other images on the licence seem to have been asymmetrically lined up, and printed on a poorly cut piece of photo paper and laminated, and the clearly visible ‘Canon’ watermark on the back, as noted.

5. The representative argues further that the number on the licence which the delegate refers to as a 10-digit number from his NID card, is in fact the licence card number and is not related to a National ID card based on which this licence was supposedly obtained. 

6. Additionally, the representative refers to the delegate’s assertion on page 9 of the decision record that:

   An Iranian driver’s license contains the holder’s identification number as well as the birth certificate number both of which would have been derived from either of the two official Iranian identity documents, the national ID card or ‘shenasnameh’ which would identity the holder to Iranian authorities as an Iranian citizen.

7. He notes the source of this information is unclear and no citation has been provided. Irrespective of this, the representative submits that there is no birth certificate number displayed on the driver’s licence in question, and in the space in front of the ‘national number’ there is a barcode which displays 15 digits below it, not the 10-digit number the delegate refers to in various parts of her decision.  After reviewing the licence, it does not fit the profile of a genuine Iranian driver’s licence as described by the delegate, he contends. 

8. Taking into account these considerations the representative argues that the delegate’s findings – that the applicant’s Iranian driver’s licence is genuine and that he must have held an Iranian shenasnameh and an NIC card and therefore must have been an Iranian citizen when he applied for protection – are speculative at best: it is not probative evidence in support of a decision with such serious consequences.

9. In the Tribunal’s view the applicant’s contention that his Iranian driver’s licence was fake, obtained after he arrived in Australia by paying money to someone, not issued in 2007 in Iran as indicated on the licence is plausible.  At hearing the Member sighted the licence in question which clearly contains a ‘Canon’ watermark on the back, indicative of a forged or counterfeit document.   

10. The delegate did not accept the applicant’s claim to have provided a photocopy of this licence to VicRoads to obtain a Victorian driver’s licence, stating that the ‘relevant Victorian authorities’ confirmed the applicant provided his original Iranian driver’s licence which listed his 10-digit NID number to VicRoads [in] February 2012 (not a photocopy) to obtain a full Victorian driver’s licence.  However, there is nothing contained on the Departmental file indicating as such specifically.  The Tribunal located email correspondence from VicRoads contained on the Departmental file (subject to the non-disclosure certificate) which confirms that the applicant had provided a driver’s licence from Iran (No. [Number]) as proof of his driving history to obtain a full driver’s licence [in] February 2012.  However, there is no mention in that email that the original was provided or that the driver’s licence number was an Iranian NID number. 

11. The delegate in the decision record refers to information contained on the VicRoads website about what is required when persons attend an appointment to verify their overseas driving history. She goes on to state this information was confirmed by a telephone call to VicRoads who purportedly stated that an original overseas driver’s licence is to be provided and an accredited NAATI translation of the licence if the information contained on it is in a different alphabet.  Further, the delegate states that the overseas driver’s licence is verified by the Overseas Verification Team at VicRoads who would be well trained to do so. This led her to consider it ‘highly unlikely’ they would have accepted a false document for this purpose.  She goes on to say VicRoads confirmed the Iranian licence number as [Number]. This information appears to have led the delegate to find that VicRoads would not accept a photocopy of an Iranian driver’s licence in support of an application for a Victorian driver’s licence. 

12. However, there is nothing on the Departmental file confirming whether these procedures were followed in the applicant’s case.  The applicant claims the process was straightforward: they accepted his translated certified copy of the (fake) licence and issued him a Victorian licence.  He was not aware that an Overseas Verification Team were involved.  Whilst it may be unusual for a VicRoads officer to issue a Victorian driver’s licence based on a photocopy of an overseas driver’s licence (which was fake, even if they may not have realised it at the time) as the applicant claims, the Tribunal is unable to discount the prospect on the evidence that it is possible. 

13. The delegate also noted in her decision record that the applicant did not provide a copy of the Iranian driver’s licence in question at the protection visa application stage or in response to the NOICC.  The applicant told the Tribunal he did not provide a copy of the licence in support of his application for Australian citizenship because it was fake, however he did tell the officer at his identity interview that it was fake, as he did in response to the s 107 and before the Tribunal.  He has submitted a copy to the Tribunal and brought the original to hearing. 

14. As well, the delegate notes country information indicating that Iran is a highly regulated country in relation to the issue of documents; that Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use; and that an Iranian driver’s licence contains the holder’s identification number as well as the birth certificate number both of which would have been derived from either of the two official Iranian identity documents – the national ID card or shenasnameh, which would identity the holder to the Iranian authorities.  Whilst that may be so for many cases, this would only apply to person’s attempting to obtain an Iranian driver’s licence in Iran (fake or genuine): in this case the applicant claims he obtained it in Australia through a contact in Sydney.  

15. For these reasons the Tribunal is satisfied the applicant’s Iranian driver’s licence was fake.  It follows that it is not satisfied the provision of the applicant’s Iranian driver’s licence to VicRoads establishes the applicant has Iranian nationality.

    Iranian passport to depart Iran

16. Based on country information that indicates (among other things) that it is extremely difficult to leave Tehran Airport on a fraudulent Iranian passport, the delegate concluded the applicant must have left Iran on an Iranian passport, and by extension, is an Iranian national, and was at the time he applied for protection.

17. The applicant claims the passport he left Iran on was a false Iranian passport, organised by a people smuggler ([Mr G]) after he gave him money.  It contained his name and had his photograph and looked real to him.  The applicant states in his statutory declaration to the Tribunal that [Mr G] helped him get to the counter at the Tehran airport where the passport was stamped and he believes he must have had some connections at the airport.  He adds that there is a lot of corruption in Iran and almost anything is possible with money and connections.

18. In his written submission to the Tribunal the representative argues that the applicant’s claim that his Iranian passport was fraudulently obtained is plausible for several reasons, including because:

    a.The applicant left Iran in 2010 and country information indicates that the passport he would have used to depart, featured far less security features.

    b.According to a report by Landinfo Country of Original Information Centre, since 1993 three versions of Iranian passports have been issued, with continuously improved security features.  Based on the applicant’s date of travel, the document referred to by the delegate is the B-series passport, introduced in 2002 before the current C-series was introduced during the period 2012–2014 according to the Landinfo report.

    c.County information including a report about the new Iranian e-passport by MATIRAN (a copy of which was provided to the Tribunal) shows that the security features contained in the current Iranian passport issued since 2012[16], did not exist when the applicant fraudulently obtained his passport.  This implies that falsifying the older version of the Iranian passport would have been much easier, the representative argues.

    d.The applicant has always maintained he departed Iran using a fraudulently obtained passport.  It is important that a distinction is made between ‘false passport’ and a ‘fraudulently obtained passport’ which the DFAT report implies may be possible for departure.

    e.The RSA officer accepted the applicant’s claims about the way he obtained this passport in the RSA decision record dated 9 March 2011 (a copy was provided to the Tribunal on review).  The RSA delegate notes that despite stringent security measures at Tehran’s Imam Khomeini Airport, by reference to country information indicating that bribery and corruption is widespread and endemic in Iran, there was a real possibility the applicant departed from Iran illegally as claimed used fraudulently obtained, genuine travel documentation. 

    f.Country information from a variety of sources is cited which shows corrupt practices occur at Iranian ports.[17]

    [16] Such as 3D watermark, invisible fibres, invisible text, laser perforation, security threat and a contactless computer chip.

    [17] For example: Farzanegan M R, ‘Illegal Trade in the Iranian Economy: Evidence…’ September 2008, p 10; Radio Farda, ‘Almost All Smuggled Goods Into Iran Come Through Legal Ports,’ 14 May 2020; IRB, ‘Iran: Exit and entry procedures at airports and land borders…’, 10 March 2020; and UK Home Office Country Policy and Information Note Iran: ‘Illegal exit, Bribery of border officials’, May 2022 at 3.6.5. 

19. The Tribunal notes this information now relied upon to suggest the applicant is not stateless as claimed was known to the Department before the applicant was granted a protection visa.  The RSA delegate also expressed concern about the applicant’s claims to have left Iran on a fraudulently obtained passport in their decision record given country information indicates it is difficult to depart from Tehran’s Imam Khomeini Airport using fraudulent documentation given stringent security checks.  However, ultimately the RSA delegate accepted the applicant’s claims to have left Iran on a fraudulently obtained, genuine passport because country information also indicates that bribery and corruption is endemic and widespread in Iran (as submitted).  This is reflected in the DFAT report published in 2013: that corruption is endemic in Iran,[18] which is what the representative submits, as well as arguing that the authorities’ security checks were less stringent then, and a different version of the passport was in place.

    [18] DFAT Country Information Report 29 November 2013 at 2.9.

20. As corruption was endemic in Iran, it is possible the applicant departed Iran in 2010 on a fraudulently obtained, genuine Iranian passport which he has consistently claimed.  There is no further information before the Tribunal that suggests otherwise – or by implication that the applicant was an Iranian citizen when he left Iran and applied for protection – apart from the provision of the applicant’s Iranian driver’s licence to VicRoads in 2012.  However, for the reasons above the Tribunal is satisfied that licence was fake.

    Information related to the applicant’s brother, [Mr E]

21. As noted the s 107 notice refers to the fact that the applicant’s brother, [Mr C], stated at his entry interview that another brother, [Mr E] ([DOB]) who resides in Iran had previously travelled to [Country 2] in 2014, and voluntarily returned to Iran.  The delegate does not explain why this may be relevant in the NOICC (or cancellation decision record).  Nonetheless it appears she infers from this information that his brother’s voluntary return to Iran from [Country 2] in 2014 means he is an Iranian citizen.

22. Further information about [Mr E] is contained on the Department’s cancellation file, some of which was set out in the Tribunal’s s 424A letter[19] to the applicant inviting his comments on the relevant information, as follows. 

    [19] Dated 29 August 2022.

23. Specifically, that at his identity interview with the Department on 26 June 2018 he purportedly said his brother, [Mr E], had visited [Country 2] from Iran in 2014 and voluntarily returned to Iran via Iraq.  The Department contacted the [Country 2] authorities who advised that [Mr E] (born on [Date] in Baghdad) had voluntarily returned to Iran [in] May 2017 with a ‘return home certificate’ issued to him by the Embassy of Iran.  Additionally, the [Country 2] authorities advised that during his interview [Mr E] stated that his family was forced to leave Iraq in 1982 and resided in Iran since; that they all became Iranian citizens; that he resides in Iran with his parents and [siblings]; and two brothers reside in Australia. The Tribunal advised that this information was also contained in his brother, [Mr C]’s identity assessment report (a copy of which is contained on the applicant’s Departmental cancellation file). 

24. In response to the Tribunal’s letter setting out this information (and explaining the relevance and consequence to the review) the Tribunal received a written submission from the representative dated 12 September 2022.  In it he states that the applicant spoke to [Mr E] who confirms that dealing with the [Country 2] authorities he never mentioned that he and their other family members had obtained Iranian citizenship; he merely advised that his family had been expelled from Iraq to Iran by Saddam Hussein’s regime.  During his identity interview in June 2018 the applicant said [Mr E] had visited [Country 2] from Iran with an Iraqi passport in 2014 and returned to Iran around a year later: this was not incorrect, it is submitted, because at the time the applicant believed this to be the case and answered the question to the best of his knowledge, even though it appears [Mr E] was in [Country 2] for over two years.

25. The representative also responded to the information from the [Country 2] authorities which suggests [Mr E] voluntarily returned to Iran [in] May 2017 with a ‘return home certificate’ issued by the Iranian Embassy. He states that the applicant instructs this information was unknown to him at the time of his interview with the Department; and that [Mr E] confirmed he was issued with a visa to return to Iran because he had family members in Iran, not because he was an Iranian citizen. 

26. Further the representative submits that the applicant instructs that [Mr E] was able to obtain his Iraqi citizenship in 2012 as their parents had regained their Iraqi citizenship in 2010.  Nonetheless, the applicant confirms that although his parents were granted Iraqi citizenship, they did not obtain citizenship for their children because they did not want them to return because of the ongoing war and civil unrest.  The applicant reiterated that at the time he left Iran he was stateless and has still not obtained Iraqi citizenship.  

27. In response to the Tribunal’s s 424A letter the representative also provided a translated copy of a letter from [Mr E] (undated, received on 12 September 2022).  In it [Mr E] states that he used to live in [Country 2] for two years as an asylum seeker; he claimed to be a Faili Kurd due to his family being expelled from Iraq by Saddam; in Iran they were not issued with a birth certificate by the Iranian government and were not recognised as Iranian citizens; on his return to Iran, considering his family had been living there, he went to the Iranian Embassy in [Country 2] to be sent back to Iran and was granted a visa to enter Iran.  He states further that currently he holds an Iraqi birth certificate; that there are [number] in his family unit – [number] brothers and [number] sisters; and if there are any mistakes in his interview, it could possibly be by the interpreter, and nothing more. 

28. At hearing when this issue was discussed, the applicant said [Mr E] is not an Iranian national and whilst he understood he claimed asylum in [Country 2], he could not cope there without family and returned home after a year or two.  The applicant said after [Mr C]’s Tribunal hearing in relation to his cancellation matter where this issue was raised, [Mr C] rang [Mr E] who said this information from the [Country 2] authorities that he allegedly said they had all became Iranian citizens was not true.

100.   The Tribunal has considered this information from the [Country 2] authorities alleging the applicant’s brother, [Mr E], had advised that he and his family members had obtained Iranian citizenship, and the applicant’s response (via his representative) refuting that was the case.  It has also considered the letter from [Mr E] who denies he said as such to the [Country 2] authorities and maintains he is not (and was not) an Iranian national.

101.   Whilst such information raises a concern about the applicant’s alleged statelessness (and specifically, lack of Iranian citizenship) at the protection visa stage, on its own (and taking into account the Tribunal does not consider there is otherwise probative evidence indicating the applicant is an Iranian national for reasons above and below), the Tribunal is not satisfied – to the requisite level required by Zhao – that this means the applicant was an Iranian national at that time, and therefore provided incorrect information in this regard in his protection visa application.  It is possible [Mr E] lied to the [Country 2] authorities at the time, or they misinterpreted his evidence, as [Mr E] himself speculates in his letter.  There is not enough information before the Tribunal to be satisfied about these matters and accordingly the Tribunal gives this information no weight.

102.   There are other considerations which lead the Tribunal to consider the applicant was stateless and not an Iranian national when he applied for protection, including the fact that the RSA delegate in 2011 accepted the applicant was stateless, not an Iranian national, who held a Green card then White card in Iran, and who had departed Iran on a fraudulently obtained genuine Iranian passport. 

103.   The Tribunal also notes and has given weight to the applicant’s wife’s written and oral evidence to the Tribunal which included that her husband told her he was stateless, and described difficulties he and his family faced growing up in Iran as a result, from shortly after they met in 2011.  He also told her he never had a birth certificate.

104.   As well, as advised at hearing, the applicant returned to Iran in 2012–2013 (along with his wife, who was then his girlfriend, to introduce her to his parents) using his Australian issued Titre de Voyage (TDV), copies of which are contained on the Department’s cancellation file.  He explained that he travelled to Iraq, then entered Iran from there illegally (and the same way in reverse to return to Australia).  When asked why he did not go straight to Iran with an Iranian visa, the applicant said because he felt it was not safe to do so given he had left Iran illegally (by paying a smuggler) several years before.  Although of some concern, given the Tribunal accepts his evidence about departing Iran in 2010 with the help of a people smuggler who arranged his fraudulent Iranian passport, the Tribunal is willing to accept his explanation as to why he returned to Iran via Iraq in 2013. 

105.   On this point the Tribunal notes the applicant’s return to Iran in 2013 – the place where he claimed to fear persecution in 2010 – does cast doubts to some extent on his earlier protection claims.  However, a short term visit does not undermine his protection claims in their entirety, particularly given they related to his status as a stateless Faili Kurd and problems experienced over a period of time.  The Tribunal notes the delegate did not raise this as a specific concern in the s 107 notice or decision to cancel record.

106.   Additionally, the Tribunal has found in the related case that the applicant’s brother [Mr C] was stateless and not an Iranian (or Iraqi) citizen when he applied for protection. 

107.   For these reasons the Tribunal is not satisfied the applicant is (or was at the time of the protection visa application) an Iranian citizen.  It follows that it is not satisfied he provided incorrect information in his protection visa application in this and related respects as alleged in the s 107 notice.  

Iraqi citizenship

108.   As noted, in the s 107 notice the delegate considered the applicant was eligible for Iraqi citizenship when he applied for protection based on evidence subsequently provided to the Department that his parents had obtained Iraqi citizenship: in [2010] (mother) and 2011 (father).  

109.   The Tribunal found the particular non-compliance alleged in the s 107 notice (and decision to cancel record, initially) in this respect was confused, with the delegate at times alleging the applicant was ‘eligible’ for Iraqi citizenship when he applied for protection, whilst at other times that he ‘held’ Iraqi citizenship then, which are two different things. Nonetheless, the Tribunal considers the issue of the applicant’s Iraqi citizenship status at the time of the protection visa application relates to his answer to question 21 of Form 866C – if he holds any other citizenship, or whether he is a national of any other country (to which he answered ‘no’).  For the reasons that follow, the Tribunal is not satisfied the applicant held Iraqi citizenship at the time he applied for protection. 

110.   In response to the s 107 notice and before the Tribunal the applicant acknowledged that his parents were able to obtain their Iraqi citizenship in 2010 and 2011, but submits that he was not aware that was the case at the time; that his father had on numerous occasions applied for Iranian and Iraqi citizenship without success; it was a lengthy process and they did not receive the documents until much later. The applicant’s parents said they did not tell him earlier (about obtaining Iraqi citizenship) because they did nto think it would have any bearing on his life, as he was settled in Australia.

111.   In his submission to the Tribunal the representative refers to the August 2020 DFAT country information report[20] about the lengthy and onerous process of Iraqi citizenship reinstatement, which his parents experienced.  Even so, the representative submits that at the time he applied for protection and to date the applicant is stateless, and he has not automatically acquired Iraqi citizenship through the relationship with his father.

[20] DFAT Country Information Report, Iraq 17 August 2020, at 3.10.

112.   The applicant is adamant that at the time he left Iran he was stateless and has still not obtained Iraqi citizenship. He does not deny that his parents were able to obtain their Iraqi citizenship – his mother before he left - but argues it was not the case he obtained Iraqi citizenship at that time. The applicant submits that although his parents were granted Iraqi citizenship, they did not obtain citizenship for their children because they did not want them to return because of the ongoing war and civil unrest in Iraq. 

113.   The Tribunal considers the applicant’s evidence that his parents were able to regain their Iraqi citizenship in 2010 and 2011, but that this did not mean he did at this time (or a later date) plausible.  Specifically, that his parents, after being expelled from Iraq under Saddam Hussein’s regime (along with the applicant’s older siblings), regained Iraqi citizenship in [2010] and 2011, when the new government offered Faili Kurds who previously had Iraqi documents to apply for citizenship.  However, at that time he was not aware of this and did not think to do so, given he knew nothing about Iraq and considering the civil unrest there particularly as they would have to do so in person in Iraq.  Also, that there were delays in his parents actually receiving the relevant documentation, as submitted.

114.   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 have 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.[21]

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

115.   However, that process is reportedly slow and difficult (as submitted), with 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 there were serious problems in the implementing, including difficulties for those who lacked the identification documents required, the loss of civil status records, general bureaucracy, slow procedures, lack of employees with a legal background and administrative corruption.[22]

[22] Country Advice Iraq IRQ37208 – Faili Kurds – Reacquiring Iraqi citizenship, 18 August 2010.

116.   More recently it is reported that despite the positive steps of reinstatement, there continue to be obstacles hindering the return of Faili to Iraq, which 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.[23]

[23] Abdullah Omar Yassen, ‘Report on Citizenship Law: Iraq’, (Country Report, RSCAS/GLOBALCIT-CR 2021/12, May 2021), at p 10.

117.   This country information about difficulties in regaining Iraqi citizenship including requirements to travel to Iraq in person, and security related issues in Iraq, is consistent with the applicant’s evidence about delays his parents experienced in receiving their documentation and his reticence to go to Iraq.  Accordingly, whilst the Tribunal accepts the applicant’s parents regained their Iraqi citizenship (in 2010 and 2011) it is not satisfied the applicant has taken any steps to do so himself.  It does not accept he held Iraqi citizenship at the time he applied for protection, or now.   

118.   For these reasons the Tribunal accepts the applicant is a stateless Faili Kurd (and was at the time of his protection visa application), who did not hold either Iranian or Iraqi citizenship.

119.   Accordingly, the Tribunal is not satisfied the applicant provided incorrect information at the protection visa application stage about these matters including his citizenship status and related claims in breach of s 101(b) of the Act, or that he breached s 101(a) of the Act by leaving blank the question relating to his current citizenship, as discussed. 

CONCLUSION

120.   Taking into account the evidence before it, and for the reasons above, the Tribunal is not satisfied as per the requirement in Zhao – that is a real state of satisfaction reached on a consideration of the available material before it – that the grounds for cancellation are made out in this instance.

121.   As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

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

Nicole Burns
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.