2001170 (Refugee)

[2021] AATA 3881

2001170 (Refugee) [2021] AATA 3881 (9 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001170

COUNTRY OF REFERENCE:                   Iran

MEMBER:Kira Raif

DATE:9 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2021 at 12:11pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – delegate not satisfied as to applicant’s identity – nationality – stateless – race – Faili Kurd – date of birth incorrectly converted from Persian to Gregorian calendar – ability to obtain education and access health care – little to undermine applicant’s claims about identity – inconsistent evidence on applicant’s and parents’ nationality – credibility issues – insufficient basis for cancellation under s 116 – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 107, 109, 116, 128, 134B, 140, 438

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
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 dependant.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 22 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was granted a Class XA protection visa in July 2011. In November 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate was not satisfied of the applicant’s identity. The applicant provided his response to the NOICC and his visa was cancelled in January 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

6. A number of folios on the Department’s file is subject to s. 438 Certificate. The applicant was provided with a copy of that certificate. In his submission of 14 July 2021 the applicant submits that it would be unfair to withhold information, particularly given the primary decision was based on ‘assumptions’ without evidence. The applicant requested that he be given information on which the primary decision was based. The Tribunal is mindful that its procedural fairness obligations continue irrespective of any non-disclosure certificate and therefore any adverse information that may be a reason or part of the reason for affirming the decision under review would be provided to the applicant.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant first arrived in Australia [in] December 2010 as an unauthorised maritime arrival without any identity documents. The applicant claimed to be a citizen of Iran and stated that his mother was an Iranian citizen and his father a citizen of Iraq. The applicant claimed to have been born in [year]. (The applicant denied having given that information in his oral evidence to the Tribunal.)

8. In March 2011 the applicant applied for a protection obligations determination. In that request he claimed to be a stateless Faili Kurd who lived in Iran since birth. The applicant stated that his parents were expelled from Iraq and that as a Kurdish Faili living in Iran, he never had any identity documents and had not been accepted in Iraq or Iran. The applicant stated that he had no access to health, work in government, schooling and no right to work and lack of identity brought limitations in daily life. The applicant stated that the authorities did not recognise him as a citizen. In April 2011 the applicant was found to be a person owed protection obligations on the basis of his claims of being a stateless Faili Kurd. He made the application for the protection visa in July 2011 and in that application the applicant also stated that he, his wife, parents and siblings were stateless Faili Kurds. The applicant declared his date of birth as [Date 1]. The applicant was granted the protection visa on 6 July 2011.

9. The Department conducted investigations concerning the applicant’s identity. In February 2017 the applicant attended an identity interview. In that interview, it is recorded that the applicant stated that

   a.his date of birth was [Date 2], as advised by his father. The applicant claimed that his date of birth in the protection obligations determination and the protection visa had been incorrectly recorded as [Date 1] due to an error in converting the date from the Persian calendar. The applicant stated that he had advised the Department of the error after the grant of the protection visa but the delegate noted there was no record of that.

   b.he had completed some primary schooling in Iran and further study through an informal arrangement for which he did not receive formal recognition.

   c.He and his family were stateless Faili Kurds and his sister was an Iranian citizen by marriage. When questioned why he referred to his parents having Iranian / Iraqi citizenship upon arrival in Australia, the applicant explained that he was exhausted.

   d.He had no identity documents. He and other Faili Kurd families in the village were unable to obtain identity documents, he had applied several times for identity documents but could not get these. The applicant could not explain the process of obtaining or renewing the refugee registration card in Iran.

   e.He paid a people smuggler to create a fake passport for him and his family that he used to depart Tehran

10. As a result of the interview, the officer was not satisfied as to the applicant’s identity. The primary decision record indicates that since his arrival in Australia, the applicant has not been able to provide the Department with reliable documents concerning his identity and provided inconsistent information about his claimed identity as a stateless Faili Kurd. The delegate noted that he applicant’s claims are not credible and not supported by the available country information in the following respects:

    a.The applicant claimed he completed several years of primary school in Iran, which would explain his ability to complete the biodata form in Farsi. However, country information indicates that several identity documents may be required when registering a child for school in Iran and it is unlikely that the applicant did not have to provide any identification or official document when enrolling in primary school, as he claimed during the identity interview.

    b.In his biodata form completed on 2 December 2010 the applicant stated he and his wife and mother were citizens of Iran and his father was a citizen of Iraq. The delegate found that it is unlikely the applicant would have made an error about these matters, as he claimed in his identity interview. The delegate noted that as an Iranian citizen, the applicant would have been issued with official documents, including the birth certificate, ID card and passport.

    c.The applicant was unable to explain the process of obtaining or renewing the refugee registration card in Iran, suggesting he never needed to avail himself of that service.

    d.The country information indicates that it is very difficult to depart Iran’s international airports using bogus passport.

    e.The applicant’s brother advised during his own interview that he had undergone complex medical treatment in Iran, which is unlikely if they were not documented. The applicant’s brother also stated in his own interview that their father held a Green Card, which is a document issued in Iran to refugees from Iraq. The delegate concluded that  if the father held a Green Card, the other family members would have also held a Green card.

11. In his response to the NOICC the applicant concedes that in his arrival interview he claimed that members of his family were Iranian or Iraqi citizens, which was different to the information he provided in his protection visa application but the applicant states that only the latter information is correct. The applicant states that at the time of his arrival, he was exhausted and did not think through the consequences of giving incorrect information and he heard from others that his application would be processed faster if he claimed to be Iranian.

12. The Tribunal finds the applicant’s explanation problematic. The applicant appears to be suggesting that on advice of others, he had deliberately falsified the information about his relatives’ nationality in order to obtain the visa, or obtain the visa faster. The applicant’s evidence indicates that he is willing to provide false information in his dealings with Immigration in order to achieve a favourable migration outcome and in the Tribunal’s view, that indicates that the applicant is not a person of credibility. That  brings into question the veracity of his other claims.

13. The Tribunal also does not accept the applicant’s explanation that he was too exhausted in his arrival interview and would have claimed anything. While the Tribunal accepts that the applicant may have been exhausted, the Tribunal is mindful that the very purpose of the applicant’s travel to Australia was to seek asylum and the Tribunal considers that the applicant would have given considerable thought to his circumstances and the reasons why he needed asylum and the way to present that information. That is, even if the applicant was exhausted, the Tribunal does not accept that this would have affected his ability to present truthful information about his parents’ nationality, if he had any intention of doing so. The applicant would have considered the information he wished to present long before his arrival in Australia. The Tribunal prefers the applicant’s other explanation that he had deliberately falsified at least aspects of his claims in order to obtain the Australian visa.

14. It is significant, in the Tribunal’s view, that the applicant’s evidence to the Tribunal was entirely different. The applicant denied, in oral evidence that he had ever claimed his parents were nationals of Iran or Iraq and claims that the Department’s records are incorrect because he had referred to his parents’ country of birth, not country of nationality. The applicant’s claims to the Tribunal appears to be entirely inconsistent to his earlier evidence in response to the NOICC and the Tribunal has formed the view that the applicant has not been truthful in his evidence and is not a person of credibility.

15. With respect to his education, the applicant states in his written submission that he was able to study through a Kurdish organisation, NSAO, which is not a direct part of the formal education system in Iran. In oral evidence to the Tribunal the applicant also stated that he received informal education from a volunteer teacher who taught in his village.

16. The applicant confirms that he and his family had not been able to apply for refugee cards and he was therefore unaware of the process to make such an application. The applicant states that various government services, such as health care, formal education and employment, were not available to the family and there is no evidence otherwise. With respect to his brother’s medical treatment, the applicant notes that private clinics would provide medical services for payment and no documentation is required.

17. In his written submission to the Tribunal of 13 February 2020 the applicant states that he was born in Ilam, Iran in February 1978 and is a Faili Kurd. His parents were expelled from Iraq and while Iran granted citizenship to some Kurds, many remain stateless. The applicant concedes providing inconsistent information in his initial interview when claiming his family were Iranian or Iraqi citizens but he states he was exhausted when he reached Australia and had no documents with him. The applicant notes that he was properly assessed when applying for refugee status as a Faili Kurd to whom Australia had protection obligations. (The Tribunal does not consider that such assessment is a definitive assessment of the applicant’s identity, particularly since there may be information available now that was not before the primary decision-maker.) In his submission to the Tribunal the applicant addressed specific concerns raised by the delegate in the decision record. In his submission of 14 July 2021 the applicant states that he delegate’s findings were based on assumptions without supporting evidence.

18. In oral evidence to the Tribunal the applicant states that his date of birth was incorrectly calculated when converting from Persian to the Gregorian calendar and in 2011 he contacted the Department to amend his date of birth which was incorrectly recorded but he was told that  because he had no documents as proof of his date of birth, the amendments cannot be made. The applicant states that he cannot be sure what his brother had said about the Green Card but he has since spoken to his father who told him that they were only issued with one document to enter the country and they were not issued with any other document. His father told him that they had no documents. The Tribunal finds the applicant’s evidence unpersuasive. There would be no benefit for the brother to claim the father had the Green Card while the applicant claimed to be stateless and there was benefit in him claiming there were no documents available. There is no apparent reason why the Tribunal should prefer the applicant’s evidence over his brother’s evidence and the Tribunal is also mindful that the brother has not been available to give evidence to the Tribunal to resolve these differences.

19. The applicant claims that his parents worked as labourers or shepherds and on other people’s farms. When asked about [social media] images (to which the delegate refers) showing the applicant’s family in tuxedos, the applicant states that people do exaggerate on [social media] in order to impress others. With respect to his education, the applicant states that he did not attend an official school. The teacher was a volunteer and the school was unofficial so he was not given any documents. It was for people who could not access school otherwise. With respect to his brother’s medical treatment, the applicant states that his brother told him he attended a private clinic and received charity. The applicant claims that if he had the documents, he would have presented these as it would be easier for him and his family to provide the documents and his family would have been better off if he had presented these, but he has no documents.

20. The Tribunal has considered whether there are grounds to cancel the applicant’s visa.

21. The Explanatory Memorandum to the legislation inserting s 116(1AA) provides the following example when this provision may apply: two or more documents or pieces of information about a person’s identity have been given by, on behalf of, or in relation to the visa holder and it is not possible to form a conclusion regarding which document or piece of information is genuine.[1] The Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed.[2] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity.

    [1] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) 2014 Bill (Cth), p.24, at [16].

    [2] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 1/7/17).

22. In this case, the delegate’s concerns are, essentially, with the applicant’s nationality. The delegate questions the applicant’s claim that he is a stateless Faili Kurd on the basis of a number of factors, including the information the applicant gave upon entry to Australia about his relatives’ nationality, the applicant’s ability to obtain education and his family’s access to health care and other considerations. In the Tribunal’s view, these matters do not go to the applicant’s identity. Rather, they go to the applicant’s nationality and his claim that he was stateless. But in the Tribunal’s view, the applicant’s nationality, his status as a stateless Faili Kurd or a documented national of Iran, do not affect his identity, which is essentially established through his name, date and place of birth and family relationships. Aside from the applicant’s date of birth, these issues have not been brought into question. That is, the applicant’s name, place of birth and family composition have not been shown to be incorrect and are not matters that resulted in the cancellation of his visa. With respect to the applicant’s date of birth, the Tribunal accepts as highly plausible the applicant’s explanation that an error may have occurred when converting the date from the Persian calendar to the western calendar and that the applicant was not able to correct that error because he had no evidence of his date of birth. In the Tribunal’s view, there is very little to undermine the applicant’s claims about his identity.

23. The Tribunal acknowledges the delegate’s concerns and has also formed the view that the applicant’s evidence about his background has been inconsistent and likely untruthful. The Tribunal is particularly concerned about the applicant’s claims that his parents are nationals of Iran or Iraq and for the reasons stated above, the Tribunal does not accept the applicant’s explanations about these discrepancies and has formed the view that the applicant is not a credible witness. The Tribunal has formed the view that the applicant has not been truthful in his evidence to the delegate and the Tribunal.

24. However, the Tribunal is of the view that such matters do not undermine the applicant’s claims about his identity. It is possible that the applicant is a national of Iran (or Iraq) rather than a stateless Faili Kurd, for the reasons set out in the primary decision, and that he gave incorrect answers in his protection visa application. However, these matters would be more appropriately dealt with under s. 109 of the Act, with the appropriate Notice issued to the applicant under s. 107. This is not what happened in this case.

25. In Zhao v MIMA [2000] FCA 1235 the Court stated the following with respect to the consideration relevant to a visa cancellation at [25] and [32]:

    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.

1. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of a visa cancellation, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

2. In the Tribunal’s view, the basis for the cancellation here is similar to what the Court refers to in Zhao. An issue arose with the applicant’s evidence concerning his nationality and the applicant has been unable to disprove the delegate’s concerns. That  is not sufficient to form a basis for cancelling a visa.

3. It is also important that the basis for the cancellation set out in the primary decision relates, essentially, to the applicant’s nationality rather than his personal or innate characteristics which form one’s identity, such as name, date and place of birth and family relationships. One’s nationality is not an innate characteristic and may change throughout one’s life. In the Tribunal’s view, a person’s nationality does not form part of one’s identity. Notably, the primary decision does not appear to raise any concerns about the applicant’s innate characteristics, including name, place of birth and family composition (with the issue regarding his date of birth addressed above).

4. The Tribunal has formed the view that the concerns that formed the basis of the cancellation (while legitimate and have not been explained to the satisfaction of the Tribunal) do not go to the applicant’s identity. As such, the Tribunal has formed the view that there is insufficient basis for the cancellation power in s. 116(1)(AA) to arise.

5. The Tribunal is not satisfied that the ground for cancellation in s.116(1)(AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

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

   Kira Raif
   Senior Member