2003736 (Refugee)

Case [2021] AATA 3312

2003736 (Refugee) [2021] AATA 3312 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003736

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Michael Hawkins AM

DATE OF ORAL DECISION:  29 June 2021

TIME OF ORAL DECISION:   10:50am (QLD time)

DATE OF WRITTEN STATEMENT:         28 July 2021

PLACE OF DECISION:  Brisbane

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 28 July 2021 at 10:46am

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iraq/Iran – incomplete or incorrect information given in visa application – stateless, undocumented Faili Kurd or Iranian citizen through grandfather or by marriage to Iranian citizen – credibility – inconsistent and contradictory answers given by applicant and husband in citizenship identity interviews – activities usually requiring documentation, including money transfers – claimed departure on false passports – green card and marriage certificate not declared – onus of establishing grounds for cancellation and difficulty of proving statelessness – discretion to cancel visa – applicant and husband’s atheism and mental health, and husband’s blindness – best interests of children – education, acculturation and one child’s developmental disorder – two children Australian-born citizens – country information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(a), (b), 107, 109(1), 438
Migration Regulations 1994 (Cth), r 2.41

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Saleem v MRT [2004] FCA 234
Singh v MIEA (1994) 127 ALR 383
Slayman v MIMA [1997] FCA 841
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v MIBP [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act).

  2. The delegate cancelled the visa on the basis that the applicant did not comply with sections 101(a) and 101(b) of the Act by stating that she is an undocumented, stateless Faili Kurd born in Iraq and formerly residing in Iran. The delegate found that the applicant is not an undocumented, stateless Faili Kurd; that the applicant had attained Iranian citizenship either from her paternal grandparents or automatically upon her marriage to her Iranian citizen husband; and that she is an Iranian citizen and was so at the time of arrival in Australia and at the time she applied for the protection visa. 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 appeared before the…

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AGLC
2003736 (Refugee) [2021] AATA 3312
Case
[2021] AATA 3312
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against the cancellation of a Protection visa. The applicant, who had arrived in Australia as an undocumented, stateless Faili Kurd from Iraq, was granted a Protection visa in 2011. However, following an application for Australian citizenship, the Department of Home Affairs became aware of information that led them to believe the applicant was not stateless and undocumented as claimed, but rather an Iranian citizen. This led to a notice of intention to cancel her visa under sections 101(a) and 101(b) of the Migration Act 1958 for failing to provide correct information in her visa application. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to cancel the visa.

The primary legal issues before the AAT were whether the applicant had failed to comply with sections 101(a) and 101(b) of the Migration Act 1958 by providing incorrect or incomplete information in her Protection visa application, and consequently, whether her visa was liable for cancellation under section 109 of the Act. Specifically, the court had to determine if the applicant was indeed an Iranian citizen, as alleged by the Department, or a stateless, undocumented Faili Kurd, as she maintained. This involved assessing the credibility of her claims against the evidence and country information regarding the experiences of Faili Kurds in Iran and the process of obtaining Iranian citizenship.

The AAT found that the applicant had provided inconsistent and contradictory information throughout her application history and during interviews. The Tribunal noted that her explanations regarding her upbringing, education, daughter's birth, and lack of documentation in Iran were not consistent with country information for stateless and undocumented Faili Kurds. Furthermore, her account of departing Iran on fraudulent passports was deemed implausible given the strict security at Tehran airport. The Tribunal concluded that it was more likely the applicant was an Iranian citizen who had withheld identity documents and provided misleading information to strengthen her protection claims. This conclusion was supported by evidence of financial transactions to her family in Iran, which would likely require Iranian identity documents for collection, and the fact that Iranian law provides for automatic citizenship through paternal lineage or marriage to an Iranian citizen. Consequently, the AAT found that the applicant had failed to comply with sections 101(a) and 101(b) of the Act.

The AAT affirmed the delegate's decision to cancel the applicant's Protection visa under section 109 of the Migration Act 1958. The Tribunal was satisfied that the applicant had not complied with the requirements of sections 101(a) and 101(b) by failing to answer all questions on her application form and by providing incorrect answers, particularly regarding her citizenship and reasons for seeking protection. The Tribunal found that the applicant was an Iranian citizen and therefore did not fear harm or mistreatment in Iran for the reasons claimed in her protection visa application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 12 December 2019, the delegate issued a notice under s.107 of the Act advising that the applicant had not complied with sections 101(a) and 101(b) of the Act, that is, the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The non-compliance was identified and particularised in the s.107 notice in the following respects: Evidence of non-compliance[In] March 2011 you arrived on Christmas Island as an Illegal Maritime Arrival (IMA) and claimed to be an undocumented, stateless Faili Kurd born in Iraq. You arrived on Christmas Island with your husband, [Mr A], and daughter, [Ms C].On 25 May 2011 you submitted a request for a Protection Obligations Determination (POD). Along with your request, you submitted a statutory declaration dated 25 May 2011 outlining your claims for protection.On 12 July 2011 the POD delegate found you engaged Australia's protection obligations. On the basis of this assessment, the Minister lifted the section 46A(2) bar to allow you to lodge a Protection (subclass 866) visa application.You submitted a Protection visa application on 18 August 2011. On the application form titled Application for a Protection (Class XA) visa at Form 866 Part C you provided the following answers (in bold):20. Your current citizenship [no answer]22. Do you have a right to enter or reside in, whether temporarily or permanently, any count ry(s) other than your country(s) of nationality or your former country(s) of habitual residence?No23. If you are stateless, how, when and why did you lose your citizenship?My family was expelled from Iraq in the 1980s and they went to Iran for refuge. I have lived all my life in Iran.41. I am seeking protection in Australia so that I do not have to go back toIran or Iraq 42. Why did you leave that country?Please see my POD statement previously providedIn the statutory declaration dated 25 May 2011 submitted with your POD request you stated the following, in part:Our decision to come to Australia14. As explained in my husband's statement, we decided to come to Australia because my daughter could not get any education in Iran and because we did not want her to experience the terrible life we experienced. Further my husband was constantly unpaid or underpaid because of his ethnicity. On one occasion he experienced physical beatings when he tried to receive his pay. The constant insecurity, and the not knowing whether we would have enough food on the table to feed ourselves the next day, made us decide to leave for a country that was safe and where we would have human rights.43. What do you fear may happen to you if you go back to that country?Please see my POD statement previously providedIn the statutory declaration dated 25 May 2011 submitted with your POD request you stated the following, in part:3. I fear that if I was forced to retum to Iran I would be at risk of being harmedbecause of my ethnicity as a Fa/Ii [sic] Kurd and also my membership of a particular social group of stateless persons. Fa/Ii Kurds have no rights in Iran and our treatment by the Iranian government and people is likely to lead to my husband or I being killed or imprisoned. We are also subject to such severe discrimination, that we are unable to subsist in Iran .4. I believe that if I were returned to Iraq I would be persecuted there for my ethnicity as well, as has happened in the past when my family was forced to leave Iraq for their safety. I also have no legal right to enter and reside in Iraq because I have no documents to show that my family is originally from that countryWhat I fear would happen if I was forced to return to Iran15. I fear that I would be persecuted for my ethnicity or statelessness if I were forced to return to Iran . There is nowhere safe for me or my family in Iran. It my husband is detained I would not be able to survive because single female heads of households are persecuted in Iran and I would not be able to work because I do not have any skills16. Further, because / left Iran with a false passport and was undocumented while I was living there, I will not allowed to re-enter Iran if I am forced back there. As a result I will be arrested at the airport with my daughter and will be forced to spend time in detention or be subjected to extrajudicial execution by the authorities because I am a stateless person and/or a Fa/Ii Kurd. Nobody in Iran would find out what had happened to me because the Iranian government detains people all the time, without telling anyone where they are. 44. Who do you think may harm/mistreat you if you go back?Please see my POD statement previously providedIn the statutory declaration dated 25 May 2011 submitted with your POD request you stated that your treatment by "the Iranian government and people is likely to lead to [your husband or you] being killed or imprisoned ". 45. Why do you think this will happen to you if you go back?Please see my POD statement previously providedIn the statutory declaration dated 25 May 2011 submitted with your POD request you stated the following, in part:15. / fear that I would be persecuted for my ethnicity or statelessness if I were forced to return to Iran.Why I cannot go back to Iraq17. I cannot go back to Iraq because we have no documents and will not be able to enter that country, let alone get to the central government offices in Baghdad and attempt prove [sic] that my family lived in Iraq many and many years ago. I know the Iraqi government will not give me any ID cards because they will not be able to verify my identity.18. I am also in fear about going back to Iraq . I have heard that it is dangerous there for Falli Kurds, especially after what happened to my uncles and parents, and I do not want to put my daughter's life at risk. I also know no one in that country, so nobody can offer us any protection.46. Do you think the authorities of that country can and will protect you if you go back? If not, why not?Please see my POD statement previously providedIn the statutory declaration dated 25 May 2011 submitted with your POD request you stated, in part, that you were "not safe in either Iran or Iraq" due to your ethnicity as Faili Kurd and your status as a stateless person. You stated that your treatment by the Iranian government "is likely to lead to [your husband or you] being killed or imprisoned"Based on your answers and meeting all other relevant criteria you were granted a Protection visa on 30 August 2011.On 25 January 2016 you submitted an application to obtain Australian citizenship by conferral.Subsequent to the submission of your citizenship application the following contrary information came to the attention of the Department.On 14 February 2017 you attended an interview with a departmental officer for the purposes of making a finding on your identity. The departmental officer noted your responses at interview raised serious concerns regarding the overall credibility of your claims for protection, particularly in regards to your claims to be a stateless and undocumented Faili Kurd.Your responses at your identity interview are summarised as follows:Name and place of birthYou identified yourself as [the applicant] born on [Date 1]. You claimed you were not known by any other names including nicknames or on social media.You claimed your date of birth in the Persian calendar was [Date 2]. You stated you knew this was your date of birth because your father "wrote it down somewhere". You stated: "the day and the month is not exact, we just know the year and they say you were born in the winter... this exact day and month is picked by ourselves to have a date of birth".You stated neither you nor your siblings were ever issued with birth certificates or registration papers which recorded your birth.FamilyYou claimed both your parents were born in Iraq and were expelled from that country in [Persian calendar year 3, the year before the applicant was born] .You claimed both your maternal and paternal grandparents passed away prior to your birth and that you did not know details of where they were born or where they were buried.You stated you had two sisters and two brothers who resided in Ilam, Iran.You stated you gave birth to your eldest daughter at home in Ilam. When asked if your family received any form of paperwork for your daughter's birth (official or unofficial ), you stated "No, because nothing has been recorded about our family". When asked how you knew her date of birth you answered "I know 4 years after we got married my child was born and because of couple of years of schooling I had I had learned the years and I knew a few words so I knew the year".You claimed that your mother-in-law was buried in 11am, however, you were unaware where your father-in-law was buried. The departmental officer conducting the interview put to you that your husband's family would have obtained a death certificate for his mother's burial and that this document could be obtained to help support your family's identity. You stated you would seek to obtain this document.You stated on your arrival in Australia you made an 'alive call' to one of your neighbours and, in turn, to your mother. Contrary to your answer, the interviewing officer noted that departmental records indicated this call was made to "[Mr D] " who was recorded as "brother". In response, you stated [Mr D] was in fact a close friend of your husband. When asked why you recorded "brother" if [Mr D] was just a friend you answered "no we didn't".Education You claimed you never attended school as your family had no documents to facilitate your enrolment. You claimed you instead attended [Adult Learning] where a lady from the village taught you basic reading and writing in her spare time. You claimed you attended these classes for a couple of years for one to three days a week.You were unable to provide the name of your teacher, however, you claimed that she was a Kurd that lived in your village. When asked if the lessons were taught in Kurdish you answered: "no, in Iran there is only one educational system, it is in Farsi and it is in all educational facilities in Iran".Ethnicity/StatelessnessYou were asked why your family were stateless and what it meant to you to be a Faili Kurd. You explained that the differences between being a Faili Kurd and other ethnicities were language, clothing and some cultural differences.When asked why your family left Iraq for Iran you answered: "Actually we were kind of kicked out of Iraq [by Saddam Hussain]; it's not a choice of migrating somewhere else". When asked for specific information regarding why your family were removed from Iraq and what happened upon their arrival in Iran you were unable to provide further detail.You claimed your family were the only Faili Kurds that lived in your village. You explained the difference between Faili Kurds and Iranian Kurds was the following: "Iranian Kurds are citizens of Iran, like any other citizens of that country they are allowed to work and have education. But for us because we were stateless we didn't belong to anywhere we were not allowed to work or go to school or go anywhere unless we paid to the government".Travel You stated you had not travelled outside Iran prior to your departure for Australia.You claimed that you and your husband obtained fraudulent passports and a number of tickets through a smuggler to facilitate your departure from Tehran towards Australia.You claimed you were provided two fraudulent Iranian passports in your own names which included your own photographs. You claimed you and your daughter shared a passport. You explained that your family caught a bus from Ilam to Tehran city and met the smuggler in Ferdowsi Square where he gave your husband the passports and tickets before travelling to Imam Khomeini Airport. You claimed that, at the airport, your husband instructed you to wait aside as he approached the passport control area. You claimed he came back after some time and stated there were no issues and that your passports were only checked once prior to your departure.The departmental officer asked you if you paid any money or bribes at the airport to which you answered: "no, not at the airport".DocumentedYou advised the interviewer that you were not issued any identity documents in Iran. Similarly, you claimed neither your husband nor your parents held documents in Iran.You claim you thought you once saw your father's Iraqi identity card but you were unsure of this document's current location or if it had been 'thrown away'.You explained that the Iranian government issued a Green card to Faili Kurds entering Iran which was only valid for one year. You claimed your father never applied for a Green card because he "couldn't afford to pay for the card for each person every year that didn't give you anything". You described a Green card as "nothing" which would not enable you to obtain a bank loan or to work lawfully.Your husband also attended an interview with a departmental officer for the purposes ofmaking a finding on his identity on 14 February 2017. During this interview, your husbandprovided details of your family's life and departure from Iran, summarised in part as follows:Your husband claimed that neither you, his parents nor his siblings had ever held any identity documents from Iran or Iraq.Your husband claimed he did not know where his paternal or maternal grandparents were born, however, he stated that it may have been Iran as his ancestors were originally from that region.When asked to whom who he made his "Alive call" your husband replied that he had "no idea". It was then put to him that he called his brother, [Mr D], in Iran whose identity had not been disclosed to the Department. Your husband stated [Mr D] is the nickname of his declared brother, [Mr DD], and asked the officer to confirm with the assisting interpreter that [Mr DD] was a common name in Iran. The interpreter stated that he had never heard the name [Mr DD] before but that [Mr D] was a very common name in Iran.Your husband claimed that both his parents were buried in Iran but that no official death certificates had been issued in this respect. He claimed his parents were buried on private land in llam, used by Faili Kurds to bury their elders.In regards to your departure from Iran, your husband claimed he met the "smuggler's agent" at a hotel in Tehran where they provided the passports on the morning of your departure. Your husband claimed he paid a total of $[Amount 1] US for three fake passports, airline tickets and smugglers in [Country].Your husband claimed you passed through three security checkpoints at Tehran airport using your false passports without issue and that he thought the smuggler had arranged "some sort of pay off with security".Consideration of evidenceThe grant of your Protection visa on 30 August 2011 was based on the finding that you engaged Australia's protection obligations due to the persecution and discrimination you claimed you experienced as an undocumented, stateless Faili Kurd formerly residing in Iran.I consider a genuine stateless and undocumented Faili Kurd would likely be able to describe their distinct circumstances in Iran without significant issue. I note, however, the information you have provided to the Department concerning your circumstances in Iran, and those of your family, over the course of your application history appears to be inconsistent and contradictory.I note you claimed you and your parents were born in Iraq and that you did not know where your paternal or maternal grandparents were born. I note you claimed your family were removed from Iraq yet you were unable to provide details of why this happened and what happened to your family upon entering Iran.I consider it is reasonable to expect that had you genuinely resided in Iran as a stateless and undocumented person for the majority of your life you would have made enquires about the origins of your undocumented status and that you would be able to relay that information. As you were unable to provide these details at your identity interview I am not satisfied you resided in Iran as an undocumented, stateless Faili Kurd as claimed.I note country information indicates that Faili Kurd refugees who could present documentary proof of their Iranian ancestry or family links to Iran have been able to obtain Iranian citizenship. Under Iranian law (Article 976), children acquire Iranian citizenship automatically at birth from their Iranian citizen fathers (paternal line), regardless of whether they were born in Iran or outside of lran2. Had your paternal grandfather held Iranian citizenship prior to leaving Iran for Iraq as you claim it therefore follows that, as per Iranian law, your father and yourself in turn acquired Iranian citizenship automatically at birth. In view of this country information, I consider it is likely that you did not provide details of your paternal grandparent's birth in order to conceal evidence of your Iranian ancestry and to strengthen your claims for protection.I have given consideration to your claim that neither you nor your husband were issued identity documents in Iran. I note you claimed that your father never applied for a Green card because he "couldn't afford to pay for the card for each person every year". I note you claimed a Green card "didn't give you anything, you couldn't get a loan from a bank, you couldn't work it was nothing". Contrary to your claim, however, country information details the following benefits of Green card registration (Amayesh registration):Amayesh registration enables refugees to access basic services and work permits, and contain information about the town and province the card holder is permitted to reside in. Children born to Amayesh card holders are also generally issued with Amayesh cards. To renew an Amayesh card, refugees are required to pay municipal taxes and a card renewal fee. Amayesh cards are renewable provided that the relevant conditions, such as the payment of municipal taxes, are met. Apart from Amayesh cards, Feyli Kurd refugees in Iran may be able to present other documentary evidence that may assist in establishing their refugee status in Iran, including a registration slip issued by Iran's Bureau for Aliens and Foreign Immigrants Affairs (BAFIA) , documents issued by refugee camps and settlements and health insurance cards.I consider it is likely that you had limited knowledge that being a registered and documented refugee in Iran, i.e. the holder of a Green card, provided access to basic services and work permits because you and your family were documented Iranian citizens.I have given consideration to your claim that you never attended school in Iran as your family did not have access to identity documents to facilitate your enrolment. You claimed you instead attended [Adult Learning] for a couple of years where a Kurdish lady from the village taught you basic reading and writing in her spare time. When asked if the lessons were taught in Kurdish you answered: "no, in Iran there is only one educational system, it is in Farsi and it is in all educational facilities in Iran".I consider it is unlikely that you were able to attend schooling with the frequency which you claimed had the classes been run by a single individual in her spare time. Moreover, I consider it is unlikely this informal education would follow the Iranian education system and be conducted in Farsi, particularly noting the teacher was purportedly of Kurdish ethnicity. Further, as you were unable to provide the name of this teacher when asked at your identity interview I am not satisfied you undertook this schooling as claimed.I consider it is more likely you regularly attended formal schooling in Iran for a substantial period of time as you were a documented Iranian citizen. I consider it is likely that you did not provide details of your formal education in Iran to conceal your Iranian citizenship and to strengthen your claims for protection.I have considered your claim that you and your family departed Iran using fraudulent passports issued in your own names and obtained through a smuggler. I note you claimed the smuggler gave you these documents at Ferdowsi Square and you then travelled to Imam Khomeini Airport where your passports were checked once without incident prior to your departure. You claimed no money or bribes were paid at the airport nor did you indicate that you were assisted by any individual to bypass any security checkpoints.In contrast to your claims your husband claimed that you collected your passports from a smuggler at a hotel in Tehran. Your husband claimed the smuggler was paid [Amount 1] US for your passports and tickets to depart Iran, of which $[Amount 2] went to a smuggler in [Country]. He claimed he never looked inside the passports and thought "some sort of pay off with security" had occurred to facilitate your departure through three security checkpoints at the airport. He claimed this was possible because you could bribe a needy person to get through security "with a couple of dollars".I have given consideration to the following country information which indicates that it would be extremely difficult to exit Imam Khomeini International Airport in Tehran using fraudulently issued documents and by bribing officials:"According to an employee of a Western embassy, most Iranians who end up as illegal migrants have left Iran with their original documents ...the source did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros The possibility of bribing one's way through the airport was rejected by a well-educated Iranian woman with links to international communities. Referring to the very strict security , it was considered that this would be extremely difficult'.I consider your claimed method of departure from Iran is contradictory to available country information. Moreover, your account of your departure does not appear consistent with your husband's claim to have obtained the purportedly false passports at a hotel in Tehran rather than Ferdowsi Square.Based on the available information for Khomeini International Airport in Tehran I do not consider it is plausible that a smuggler could bribe airport officials with "a couple of dollars", as your husband claimed, in order to facilitate the departure of a person using a false document. I consider this claim is particularly unlikely as neither you nor your husband claimed you were accompanied by a smuggler through the airport.Moreover, if you were genuinely an undocumented and stateless individual I consider you would have no formal information recorded with Iranian authorities . I consider it is therefore implausible that you were able to pass through security checks at Tehran airport using fraudulent passports, issued in your own name, as the information contained on those documents would be unverifiable with any system.I consider it is more likely you provided inconsistent and contradictory information regarding your departure from Iran because you and your family departed using your own legally obtained, genuine Iranian passports. I consider you were able to access genuine Iranian passports as you and your husband are Iranian citizens.I note you claimed at your identity interview that you made an 'alive call' to one of your neighbours and to your mother. Departmental records, however, indicate this call was made to "[Mr D]" who was recorded as a "brother"", and who you subsequently claimed was your friend. I note your husband claimed at his identity interview that [Mr D] was the nickname of his brother [Mr DD].Information before the Department indicates that your husband has made financial transactions to Iran to his brother [Mr D], otherwise known as [Mr DD], and your mother, [Ms E] (spelled '[Alternative spelling] ' in your Protection visa application). Financial information reports indicate these transactions were made through [a] Money Exchange for the purpose of "helping family" between 17 October 2012 and 27 March 2015.Information available on [the] Money Exchange website5 indicates that when transferring money to an individual in Iran you must provide their bank account details, home address and phone number. Country information indicates that an Iranian National Identity Card (NIC) is "compulsory for a range of activities, including passports and driver's licences and using a bank".6 A NIC or an Iranian birth certificate (shenasnameh) are required whenever it is necessary to prove identity and "not having them will prevent individuals from being able to complete their business".7 Noting the available country information and the frequency and period with which transactions were made to your mother and brother-in-law in Iran I therefore consider it is likely that they hold Iranian NICs and were required to present these cards to confirm their identity when collecting the money transferred to them.You confirmed at your identity that your daughter, [Ms C], was born in Iran prior to your departure. When asked if your family received any form of paperwork for your daughter's birth (official or unofficial), you stated "No, because nothing has been recorded about our family". Country information for Iran, however, confirms that "birth registration is compulsory and must occur within 15 days of birth". A shenasnameh is the foundation identity document issued to all Iranian citizens at birth and contains "the names of the bearer's parents, the date and place of birth, the location where the shenasnameh was issued, the name of the issuing officer and a serial number"9. As birth registration is compulsory in Iran, I consider it is likely your daughter was issued a shenasnameh which confirms details of your Iranian citizenship.Although documentation is issued in Iran at significant moments such as when someone enrols in school, gets married, gives birth and is required to confirm ones identity and when using a bank you claimed that neither you nor your family members were ever issued identity documents in Iran. Based on the information before me, I consider it is more likely you have withheld identity documents issued to you and your family in Iran which would confirm you are an Iranian citizen in order to strengthen your claims for protection in Australia.Further, under Paragraph 6 of Article 976 of the Civil Code of the Islamic Republic of Iran, a woman who marries an Iranian citizen becomes an Iranian citizen by operation of law. There is no registration process required to become an Iranian citizen by marriage as the operation of Iranian law imposes citizenship upon the non-Iranian woman. I note information before the Department indicates your husband is an Iranian citizen. As such, had you not attained Iranian citizenship from your paternal grandparents I consider you would have acquired Iranian citizenship automatically upon your marriage to your Iranian citizen husband. As your husband appears to be an Iranian citizen, I consider your children also automatically acquired Iranian citizenship at birth under Article 976.On the basis of all the evidence before me I consider you have provided inconsistent and contradictory information to the Department over the course of your visa application history and at interview. I consider your explanations when presented with contrary Iranian country information at your identity interview on 14 February 2017 indicate you were not familiar with the experience of an undocumented and stateless Faili Kurd residing in Iran.I consider you provided inconsistent and contradictory information to the Department because you are an Iranian citizen of Kurdish ethnicity and not an undocumented, stateless Faili Kurd as claimed in your Protection visa application. As an Iranian citizen you would be able obtain an Iranian passport and would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person.Non-compliance with section 101(a)Section 101(a) of the Act requires a non-citizen to fill in or complete their application form in such a way that all questions on it are answered. Based on the above information, it appears that you did not answer all questions on your Protection visa application. Specifically, I have identified the following instance of possible non-compliance with section 101(a) of the Migration Act 1958:At question 20 of Form 866 Part C when asked 'Your current citizenship' no answer was provided. Based on the information before the Department I consider the correct answer at question 20 is Iran/Iranian. As you did not provide an answer to question 20 it appears this unanswered question does not comply with section 101(a).Non-compliance with section 101(b)Section 101(b) of the Act requires a non-citizen to fill in or complete their application form in such a way that no incorrect answers are given or provided. Based on the above information, it appears that you have provided incorrect information to the Department in your Protection visa application. Specifically, I have identified the following instances of possible non-compliance with section 101(b) of the Migration Act 1958:At question 22 of Form 866 Part C when asked 'Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?' you answered "No". I consider this answer is incorrect as the information before the Department indicates that you are an Iranian citizen who holds the right to enter and reside in Iran.At question 23 of Form 866 Part C when asked 'If you are stateless, how, when and why did you lose your citizenship?' you answered "My family was expelled from Iraq in the 1980s and they went to Iran for refuge. I have lived all my life in Iran". I consider this answer is incorrect as the information before the Department indicates that you are an Iranian citizen and not stateless .At question 41 of Form 866 Part C when asked 'I am seeking protection in Australia so that I do not have to go back to?' you answered "Iran or Iraq". I consider that as an Iranian citizen you would not fear returning to Iran as an undocumented and stateless Faili Kurd nor would you be required to return to Iraq. As such, I consider this answer is incorrect.At question 42 of Form 866 Part C when asked 'Why did you leave that country?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not leave Iran for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. As such, I consider this answer is incorrect.At question 43 of Form 866 Part C when asked 'What do you fear may happen to you if you go back to that country?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not fear harm in Iran or Iraq for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. Further, as an Iranian citizen I do not consider you departed Iran using a fraudulent Iranian passport. As such, I consider this answer is incorrect.At question 44 of Form 866 Part C when asked 'Who do you think may harm/mistreat you if you go back?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not genuinely fear harm or mistreatment by the Iranian or Iraqi governments for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. As such, I consider this answer is incorrect.At question 45 of Form 866 Part C when asked 'W hy do you think this will happen to you if you go back?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you would not be persecuted in Iran due to your ethnicity or as a stateless person. As an Iranian citizen I do not consider you would be required to return to Iraq. As such, I consider this answer is incorrect.At question 46 of Form 866 Part C when asked 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' you answered "Please see my POD statement previously provided". I consider that as an Iranian citizen you did not require protection by the Iranian authorities for reasons of being an undocumented and stateless Faili Kurd as claimed in your POD statement. Similarly, as an Iranian citizen I do not consider you would be required to return to Iraq and therefore would not need the protection of the authorities that country. As such, I consider this answer is incorrect.Based on the above information, it appears you did not comply with section 101(a) and section 101(b) of the Act as you did not fill in or complete your application for a Protection visa in such a way that all questions were answered and correct.If you have failed to comply with the requirements of section 101(a) and/ or section 101(b) your Protection (subclass 866) visa is liable for cancellation under section 109 of theMigration Act 1958.

Decision

Reasons for decision

The applicant had submitted the following documents:·written submissions from her representative;·her identity documents, being a copy of her Iranian national identity card, religious marriage certificate and Queensland driver licence;·her husband’s identity documents, being a copy of his religious marriage certificate and Queensland adult proof of age card; and·eight character references from friends and community associates. Departmental decision to cancel the applicant’s visa under s.109 of the Act The Department proceeded to cancel the applicant’s Class XA, Subclass 866 (Protection) visa in a decision made on 14 February 2020. The Department did not interview the applicant. Recourse to the delegate’s decision record indicates that the delegate found that there was evidence of non-compliance by the applicant insofar as the applicant failed to give correct information regarding her identity and protection claims in Form 866 Part C of her protection visa application. The Department made the following findings:I note the visa holder maintains that she is an undocumented, stateless Faili Kurd. I note she strongly disputes the assertion that she is an Iranian citizen and claims that the Department has not provided sufficient evidence establishing this fact with certainty. Further, I note the visa holder’s claim that the Department has not produced “reasonably compelling evidence” of her non-compliance as described in the section 107 notice.While I have given consideration to the visa holder’s response to the Notice I do not accept her contention that little to no weight should be placed on the identity assessment developed from the answers she gave at her identity interview. Although the visa holder claims that she had no prior knowledge of the identity interview’s purpose departmental records confirm she was sent a letter dated 20 January 2017 titled Notification of Interview. This letter explicitly stated that the visa holder was “required to attend an interview for the purposes of identity verification” and listed the date and time for her attendance. The letter goes on to state that the identity interview was “not for the purposes of assessing [her] application for Australian citizenship”.Based on the details contained in the Notification of Interview letter and the visa holder’s subsequent attendance at that interview I am therefore satisfied she was sufficiently notified of the identity interview’s purpose.Similarly, I do not accept that there was a “very real potential” there was a misunderstanding between the visa holder and the identity interviewer as claimed. I note the visa holder confirmed in her response to the Notice that the identity interview was conducted with the assistance of an interpreter. While I acknowledge the visa holder has not requested a recording of the identity interview under the Freedom of Information Act, I have reviewed this recording given the claims raised in response to the Notice. I find her answers at this interview make clear that she understood and had no objection to the Farsi interpreter in attendance. In particular, I note the following exchange taken verbatim from the identity interview recording:Interviewing officer: The interview may take a few hours today but we will take a break if required. Please let us know if you would like to have a break at any time[Interpreter translation]Visa holder’s response in English: OkInterviewing officer: We have booked a Farsi interpreter for you today to ensure that you are able to understand the questions and also clearly communicate your responses. [Interpreter translation]…Interviewing officer: If you do not understand something that I say or have any difficulties with the interpreting please let us know immediately. The interpreter will also let us know if they need clarification.[Interpreter translation]Interviewing officer: Do you understand the interpreter? [Interpreter translation]Visa holder’s response in English: YesInterviewing officer: Do you have any objection at this time to the interpreter? [Interpreter translation]Visa holder’s response in English: NoAt the commencement of the identity interview the visa holder was given the opportunity to respond to any concerns regarding the interview’s content and the interpreter in attendance. The visa holder confirmed her understanding and made no objection to the interpreter. I therefore do not find there was a “very real potential” for misunderstanding at the identity interview. Similarly, I find it is unlikely that she “guessed” her answers due to a misunderstanding or stress as she was also advised at the commencement of the interview that she could take a break at any time.I note the visa holder broadly states that she disagrees that she provided some of the quotes attributed to her. However, I am unable to consider the visa holder’s claim as she does not specify any particular quote or representation taken from the interview which may be incorrect. Similarly, I find the visa holder’s claim that the interviewing officer made erroneous conclusions “based on a subjective view” to be unsupported.Based on the evidence before me I find the visa holder’s claim that there was a “very real potential” there was a misunderstanding at the identity interview to be self-serving. I find the visa holder claimed the interview was carried out in a manner which was unclear and made her feel stressed as a way to explain or excuse the answers she provided. On the basis of all the evidence before me I do not find there is a reasonable basis to place little to no weight on the identity assessment.I have given consideration to the visa holder’s claim that there is insufficient evidence available to the Department to reach a degree of satisfaction that she and her husband are Iranian citizens and did not comply with section 109 of the Act. While I accept that the visa holder may have difficulty providing identity documents if she was genuinely stateless, her description of her distinct life story should nevertheless be consistent and align with known country information for stateless and undocumented Faili Kurds formerly residing in Iran. Were the visa holder a genuine stateless and undocumented Faili Kurd formerly residing in Iran the elements of her life story would be verifiable and create a consistent picture of her identity, allowing the delegate to reach a logical level of satisfaction about her claims.I find the information before the Department and provided by the visa holder and her husband at their identity interviews do not support her claims to be a stateless and undocumented Faili Kurd. In particular, I find the visa holder’s claims at her identity interview regarding her upbringing in Iran, her education, her daughter’s birth, her inability to detail the origins of her undocumented status, and her lack of identity documents and green card held by the vast majority of Faili Kurd refugees in Iran contradict Iranian country information. The visa holder’s explanations when presented with contrary Iranian country information indicate that neither she nor her husband were familiar with the experience of an undocumented and stateless Faili Kurd residing in Iran.Taking into account country information, I find the visa holder’s claim that she and her family departed Iran without issue on false Iranian passports issued in their own names to be implausible. I find this as country information indicates it would be extremely difficult to exit Imam Khomeini International Airport in Tehran in the manner claimed. Moreover, I find it is unlikely the information contained on their purportedly false passports could be verified on any system had the visa holder and her family been genuinely stateless. I note the visa holder has not addressed her departure from Iran in her response to the Notice nor clarified the inconsistencies in her claims.The visa holder has provided insufficient explanation about why she was not issued any Iranian documents. Although documentation is issued in Iran at significant moments such as when someone enrols in school, gets married, gives birth or when someone dies she claimed at her identity interview that her family members were not issued identity documents in Iran, even in cases where authorities were not strict about a person’s status. I consider the visa holder’s claims are unpersuasive and not supported by known country information. I note she has not sought to clarify this information in response to the Notice.Although the visa holder claimed to have not been issued identity documents at her identity interview I note she has submitted original and translated copies of a Foreign Residents Identity Card issued in Iran in 2003 along with an extract of her marriage certificate. I note these documents have not previously been provided to the Department nor does the visa holder detail in response to the Notice how they were obtained. In particular, although the visa holder claimed she has not been known by any other name the marriage certificate provided lists her and her husband as “[Alias]” and “[Mr A, Alias]”, identities which also have not previously been disclosed to the Department. Further, this document appears to have been translated from Arabic, a language the visa holder and her husband have not indicated they speak.Given the inconsistencies noted, I am unable to place any weight on the veracity of the visa holder’s ‘identity’ documents submitted in response to the Notice. I do not find these documents contain verifiable information which indicates the visa holder is a stateless and undocumented Faili Kurd.Information before the department indicates that visa holder’s husband has made financial transactions to their family in Iran. Country information indicates that in order to collect this money and to use a bank in Iran an Iranian NIC is “compulsory”. I therefore find it is likely the visa holder’s mother and brother-in-law were required to present their NICs to confirm their identity when collecting the money transferred to them, contrary to the visa holder's claims that her family do not possess Iranian identity documents. The visa holder has failed to clarify this information in response to the Notice.While I have given consideration to the eight character references submitted with the visa holder’s response to the Notice I note they neither address nor support her claimed status as an undocumented, stateless Faili Kurd. As such I do not consider these submissions are relevant to the grounds for cancellation.Based on all the information before me, I find the visa holder provided inconsistent and contradictory information to the Department because she is an Iranian citizen of Kurdish ethnicity. I find the visa holder has likely withheld identity documents from the Department over the course of her visa application history and provided misleading information to the Department in order to strengthen her claims for protection in Australia.I find the visa holder likely obtained Iranian citizenship automatically at birth from her Iranian citizen father and grandfather under the provision of Iranian law (Article 976). Nevertheless, as information before the Department indicates her husband is an Iranian citizen, had the visa holder not obtained Iranian citizenship automatically at birth I find she would have obtained citizenship at the time of their marriage through the provisions of Paragraph 6 of Article 976 of the Civil Code of the Islamic Republic of Iran.As an Iranian citizen the visa holder would be able to obtain an Iranian passport and would not be of interest to the Iranian authorities for the reason of being a stateless and undocumented person. The visa holder’s departure from Iran without issue and the financial support provided to her family in that country support the finding that she is an Iranian citizen and was so at the time she submitted her Protection visa application.As the visa holder is an Iranian citizen and was so at the time she submitted her Protection visa application I find she would not fear harm or mistreatment in Iran for reasons of being an undocumented, stateless Faili Kurd.As the visa holder is an Iranian citizen and did not provide an answer to question 20 of Form 866 Part C, I find this unanswered question does not comply with section 101(a). Similarly, I find the visa holder did not comply with section 101(b) of the Act as she.provided incorrect answers in response to questions 22, 23, 41, 42, 43, 44, 45 and 46 of Form 866 Part C.As the visa holder has not complied with sections 101(a) and 101(b) of the Act I am satisfied that grounds exist for cancellation of her Protection visa under section 109 of the Migration Act 1958.Statutory Declaration dated 25 June 2021

Ratio Decidendi

Legal Principle Established

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