2101738 (Refugee) - [2023] AATA 1281

2101738 (Refugee) [2023] AATA 1281 (17 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kamran Ghanbari (MARN: 0848517)
CASE NUMBER:  2101738
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Nicole Burns
DATE:17 March 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 17 March 2023 at 5:43pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iran – delegate not satisfied as to identity – Faili Kurd born in Iraq and moved to Iran at young age – early life in small villages and lack of documentation – no attempt to obtain Iraqi or Iranian citizenship – long-term residence in Tehran and lack of knowledge about stateless Faili Kurds and their documentation – work and driver’s licence, and children’s births not registered – departure on fraudulent passport – daughter’s return and marriage to Iranian citizen – concerns go more to claimed statelessness, not identity – mere suspicion not sufficient to establish ground for cancellation – young age at relevant times, limited education and elapse of time – reasonably consistent oral evidence – country information – passport and exit procedures at the time – joint hearing with wife’s cancellation review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 107, 116(1AA)
CASE
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 February 2021 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1AA) because they were not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 October 2022 to give evidence and present arguments about the issue in his case. The hearing was combined with his wife’s ([Mrs A]) cancellation matter.[1] The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
[1] AAT No. 2101739.
The applicant was represented in relation to the review. He participated in the hearing via the telephone.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant background (including the NOICC particulars)
The applicant arrived in Australia [in] March 2010 by boat (along with his wife, two daughters[2], and his wife’s [specified family members]). He claimed to be [the applicant], born in [Town], Iraq on [Date], who moved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2101738 (Refugee)

Details

AGLC: 2101738 (Refugee) [2023] AATA 1281
Case: [2023] AATA 1281
Decision Date: 17 March 2023

CaseChat Overview and Summary

The applicant, who arrived in Australia in March 2010, claimed to be a stateless Faili Kurd born in Iraq and who moved to Iran at a young age. He was granted a protection visa on this basis. Concerns about his claimed identity arose during a subsequent Australian citizenship conferral process, leading to a delegate's decision to cancel his visa. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the delegate was satisfied that the applicant's identity was as claimed, and if not, whether this provided a sufficient ground for cancelling his protection visa under section 116(1AA) of the Migration Act 1958 (Cth). The delegate's dissatisfaction stemmed from the applicant's limited knowledge of stateless Faili Kurds in Iran, his lack of documentation, and inconsistencies regarding his daughter's circumstances.

The Tribunal considered various factors in its reasoning. It noted that while Iranian passports have improved security features, corruption in Iran meant that obtaining a passport through fraudulent means, as the applicant claimed, was possible. The Tribunal also found that information from social media regarding the applicant's daughter was unreliable and that inconsistencies in her date of birth or marriage status did not significantly undermine the applicant's claimed identity. Furthermore, the Tribunal accepted the applicant's explanation for his lack of documentation, attributing it to his stateless status and the difficulties faced by his community in Iran, including the limited utility of early identity documents like the Green card. The Tribunal also gave weight to the fact that the applicant had been issued Australian identity documents under his claimed identity and had travelled to Iran on an Australian visa, which suggested Iranian authorities were satisfied with his claimed identity at that time.

Ultimately, the Tribunal concluded that the concerns raised, including those relating to the applicant's daughter and his inability to provide certain documents, were insufficient to create significant doubts about his claimed identity. The Tribunal found that the grounds for cancellation under section 116(1AA) were not met. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.Relevant background (including the NOICC particulars) The applicant arrived in Australia [in] March 2010 by boat (along with his wife, two daughters[2], and his wife’s [specified family members]). He claimed to be [the applicant], born in [Town], Iraq on [Date], who moved to Iran when young (around [Age]) after his parents were expelled from Iraq. He also claimed to be stateless, never having obtained Iranian nationality. [2] According to information in the delegate’s decision record, his daughter [Ms B] (born on [Date]) was granted a protection visa as a dependent child of the applicant’s and therefore if his visa is cancelled, hers would be cancelled as a consequence under s 140(1) of the Act. His other daughter, [Ms C] was also his dependent on the protection visa but returned to Iran in 2012. The applicant was interviewed not long after his arrival (the entry interview) and maintained his name, date of birth (DOB) and stateless status. He applied for protection based on being a stateless Faili Kurd from Iran on 27 August 2010, and was granted a protection visa on that basis on 1 September 2010. On 4 September 2014 the applicant lodged an application for Australian citizenship conferral and was interviewed on 22 June 2015. Concerns arose about the applicant’s claimed identity during this process for several reasons, including due to: his limited knowledge about stateless Faili Kurds and being undocumented in Iran; the implausibility of being a resident in Tehran for decades without identity documents; a lack of documents attesting to his claimed identity; and a failure to provide related documents to the Department when requested, such as his daughter ([Ms C]’s) marriage certificate and/or shenasnameh[3] following her marriage to an Iranian citizen in 2012 and (permanent) return to Iran. [3] Iranian birth certificate/booklet. The applicant was sent letters by a Departmental officer after his identity interview in mid-2015 requesting he provide the following documents to confirm his family’s identities:a.Original death certificates for his parents.b.Any documents from his home country to support his identity (for example marriage certificate, medical/hospital records, school certificates, his children’s birth certificates or registration).c.Contact details for his daughter, [Ms C], and her family in Iran, so they could present their Iranian identity documents to the Australian Embassy in Tehran. The applicant did not provide a response. On 10 September 2015 his identity assessment was finalised and the outcome was that the identity claimed at the protection visa stage (of [the applicant], DOB [Date]) was not supported[4]. [4] A copy of the identity assessment is contained on the Department’s cancellation file. On 21 March 2019 the Department sent the applicant a notice of intention to cancel the approval of his application for conferral of Australian citizenship (NOICCA), which outlined the Department’s concerns about his claimed identity. The applicant’s representative provided a written response to the Department dated 20 May 2019. Although a separate process, parts of the NOICCA and aspects of the representative’s response are set out in the notice of intention to consider cancellation (NOICC) in this case (and in the representative’s response to the NOICC), detailed where relevant below.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst country information, including that referred to by the delegate in the s 107 notice and decision to cancel record, indicates that Iranian airports are known to be secure, and the passport details of departing passengers are electronically matched with official records, it also indicates that not all of the security features contained in the current Iranian passport issued since 2012[16] existed when the applicant obtained his passport in 2010. [16] Such as 3D watermark, invisible fibres, invisible text, laser perforation, security threat and a contactless computer chip. MATIRAN Company, History of the Passport at MATIRAN, >In a January 2021 Landinfo report it is stated that with the introduction of the latest versions of the shenasnameh, kart-e melli and passport, the reliability of Iranian identity documents has significantly improved, and that these documents have far more advanced security features than previous versions and are thus more difficult to falsify and manipulate[17]. The same report notes that corruption is considered widespread in Iran. The payment of bribes is said to be relatively common at many levels of the government sector, and officials often expect an informal payment to offer routine services; however, they have little concrete information about how widespread this is in offices issuing passports and ID documents.[18][17] Landinfo Country of Origin Information Center, Report, Iran, Passports, ID and civil status documents, 5 January 2021, p 40.[18] Ibid, at p 41.DFAT, in its 2016 country information report on Iran, assessed that exiting from the Imam Khomeini International airport with a forged passport would be difficult but not impossible if bribery was involved,[19] which is what the applicant has consistently claimed. DFAT also noted that corruption was endemic in Iran.[20] [19] DFAT Country Information Report, Iran, 21 April 2016 at 5.49.[20] DFAT Country Information Report, Iran, 29 November 2013 at 2.9.Such country information indicates that it is possible that the applicant departed Iran in 2010 on a genuine passport obtained through fraudulent means as he has consistently claimed. It does not cause the Tribunal to consider he is not who he claims to be.Information about the applicant’s daughter, [Ms C]. The delegate noted several inconsistencies had arisen in information pertaining to the applicant’s daughter, [Ms C], as follows:·[Ms C]’s indication on social media that she attended school in Iran during 2007 and 2008, which would require documentation, is inconsistent with the applicant’s claims that he was unable to renew the Green card for his family in 2005.·[Ms C]’s [Social media] records her DOB as [Date], contradicting the applicant’s statement that her DOB is [Date].·The applicant’s claim at his citizenship interview that [Ms C] was married to an Iranian citizen by a ‘sihreh’ or temporary marriage was inconsistent with his wife and daughter’s evidence at their interview, and marriage photographs on [Ms C]’s [Social media] profile, showing she has a child. In addition, the fact that she has stayed in Iran indicates she is permanently married.The delegate also appeared to draw an adverse inference from the applicant’s failure to produce [Ms C]’s identity documents when requested, which would have included their details and helped establish their identities. The Tribunal agrees such identity documents could have helped establish their identities. However, the failure by [Ms C] to provide such documents is not of itself a sufficient basis to lead the Tribunal to have significant concerns about the applicant’s claimed identity.In response to the NOICC, the representative made the following submissions on this issue:§It is unwise to rely on comments posted on social media; it is well known that social media reflects people’s preferred views and opinions as opposed to the truth; and with respect to education, it is often exaggerated, lied about or left unexplained on social media. §It is acknowledged that [Ms C] married an Iranian citizen and their child is an Iranian citizen (by virtue of her father’s status) and [Ms C] may have acquired Iranian citizenship through marriage; however, this is independent of the applicant.§The error related to whether the marriage was temporary or permanent does not disclose anything related to the applicant’s own status, although [Ms C] may well now be a citizen.§The fact [Ms C] stayed in Iran after her marriage in 2012 does not reveal a sinister purpose. She was entitled to stay with her husband who is an Iranian citizen. His citizenship has no bearing on the applicant’s status and it is inappropriate to conflate the two. At hearing the applicant confirmed that [Ms C] has been living in Tehran since she returned there to marry in 2012, and she now has a child. Given she married an Iranian national, their marriage was registered, but he is unsure if she has a marriage certificate or if she was issued a shenasnameh. He said that when she got married, as her father he went with her and her husband to the ‘special offices’ to sign the relevant documents to register her marriage. The officials relied on his details contained in his TDV to do so. With respect to the changing and at times inconsistent evidence about whether [Ms C]’s marriage was temporary or not, at hearing the applicant said her marriage was initially temporary, which is what he told the Department at interview. They later changed it to a permanent one. When asked why [Ms C] (and her husband) would do this, the applicant said he could not understand their reason, noting they are of a different generation, but it was their decision. When asked what his other daughter, [Ms B], had told the Department about this arrangement, the applicant said he has no idea. The Tribunal agrees with the representative that information on social media is inherently unreliable. It accepts the applicant’s evidence that [Ms C]’s claim on her [Social media] profile to have attended school in Iran in 2007 and 2008 was untrue. Neither this information, nor the inconsistency regarding [Ms C]’s DOB causes the Tribunal to have concerns about the applicant’s claimed identity.Whilst [Ms C]’s marriage to an Iranian national, and her seemingly permanent return to Iran, may raise questions about the claims made in 2010 regarding her fears of persecution as a stateless Faili Kurd (and by implication, her father’s claimed fears), this information does not, of itself, raise significant concerns about the applicant’s claimed identity or nationality. This is particularly the case as, even if she has been an Iranian national since 2012, she achieved that through her marriage that year: there is no probative evidence she was an Iranian national before then. The applicant claims that when he asked [Ms C] to go to the Australian Embassy in Iran to show her identity documents (if any), she refused, as she wanted to stay in Iran (he did not elaborate). It appears the delegate saw this lack of cooperation as a deliberate attempt to hide information about the applicant’s identity. However, the Tribunal is of the view that there could be several reasons why [Ms C] was reluctant to cooperate in this respect, including being wary of the authorities (including Australian authorities), particularly given her background. For the reasons given above and below, the Tribunal accepts the applicant (and his family) were stateless Faili Kurds in Iran before they came to Australia, and the Tribunal does not find [Ms C]’s failure to provide her identity documents raises any significant concerns as to the applicant’s claimed identity. Iranian driver’s licence. In the s 107 notice, the delegate considered it implausible that the applicant would drive for work purposes without a valid Iranian driver’s licence, as claimed. In response, the representative notes the information is based on statements made by the applicant, who agrees he provided such information. The Tribunal notes this issue is not included in the reasons why the delegate concluded they were not satisfied as to the applicant’s identity in the decision record.At hearing the applicant said he never had an Iranian driver’s licence in Iran, and whilst someone taught him to drive, he never did so officially. Occasionally he would drive his employer’s car to move things a short distance, for example, but not outside the area they lived and worked. He did not need a driver’s licence for his primary job as a street vendor. The Tribunal considers this a plausible explanation. Lack of reliable identity documentsAdditionally the delegate records in the s 107 notice (and decision record) his concern that the applicant had been unable to provide any reliable information or documentation to support his claimed identity to the Department since his arrival in Australia in 2010, and gave this significant weight in reaching the decision to cancel his visa. The delegate also notes that when specifically requested to provide certain documents, such as [Ms C]’s shenasnameh and his parents’ burial certificates, the applicant failed to do so, as noted.The delegate also noted concerns with the applicant’s evidence about his lack of identity documents in Iran, including limited knowledge about Green cards and what entitlements they bestowed (as detailed earlier). In response, the applicant submitted (via his representative) that in the early years, the Iranian government denied displaced Iraqi Kurds any form of identity documentation. Later, the White and Green card systems were problematic and did not prevent widespread discrimination against the Iraqi Kurdish population. The applicant’s father was not the only person to throw away a Green card because it was useless. The card did not ‘miraculously’ open doors to education, health and welfare, he submitted. The representative goes on to state that Green cards were issued by the Iranian government from 1980 until 2003; however after the fall of Saddam Hussein in Iraq, the Iranian government regarded the new Iraq safer to return to and stopped using Green cards, moving to the system of White cards. White cards specified identity but their effective purpose was to identify Iraqis who could be returned to Iraq, he contends. The representative argues that in this context, it was quite sensible to throw away the Green card without understanding the card’s theoretical benefit as an identity document, and to access other entitlements (noted as being property rental, banking and health insurance by the delegate). Further, the representative submitted that without evidence to suggest otherwise, the Department cannot assume that the applicant had rented a property or required services such as banking and insurance. To assert this without evidence may be a denial of justice. The reality of village life for displaced people is that they frequently did not require such services, invariably making the Green card even less useful to them. In addition, he submits that a person who does not hold documentation is unlikely to know the benefits offered by having such documentation.At hearing the applicant explained the reason he has not been able to provide documents from Iran showing his identity is because he does not have any. He said he was born in Iraq to Kurdish parents (he was not sure if they held Iraqi citizenship) where he lived until he, his brother and his parents were expelled to Iran by Saddam Hussein when he was still young. In Iran they first stayed in a camp, and then his paternal uncle took them to Ilam for around a year or two until they moved to Tehran, where the applicant stayed until he left Iran in 2010. He said whilst other people in similar situations were able to get Iranian identity documents, he did not. The applicant said he married his wife, who is a distant cousin, when he was still young (around [Age]), and they had their first daughter in [Year]. She was born at home and they did not register her birth (or the birth of their second child). Their marriage was not registered as they were both stateless, but it was officiated by a Mullah. The applicant said when he lived in Tehran, he attended night school but not often, as he was bullied by other students because he did not speak Persian initially. He did not have to show ID to attend night school. He worked mostly as a street vendor or in part time jobs such as [job] (as did his father), which did not require identification. He thinks his father had a card, Green or White, which he at some stage took to the authorities to try and get a shenasnameh, but he was unsuccessful and they kept the card. The applicant said his daughters also attended Nezhat for their schooling in Iran and were not required to show ID; they were just asked where they came from and they told them that they were from Iraq. Nezhat was not like regular schools; they were not given a certificate at the end of the course. When asked why his daughter [Ms C] then claimed in a [Social media] post that she attended a vocational high school in Iran in 2007 and 2008, the applicant said she did not and it was likely that she was trying to boast. Additionally, the applicant said he never held a bank account in Iran, instead keeping money at home or with someone he trusted. When he rented property to reside in, he used another person’s name and ID. The applicant also addressed an issue raised in the first NOICC (and in respect of his wife’s cancellation matter) about his wife’s ability to obtain medical treatment in Iran when they had claimed at the protection visa stage that there are obstacles to doing so as stateless persons. At hearing the applicant explained that his wife used to attend a private hospital in Tehran for treatment (the name of which he had forgotten), for which he paid a lot of money. The doctors treated her without asking for any ID, and the applicant noted that money can do everything in Iran. Based on the country information set out earlier about bribery and corruption in Iran, the Tribunal accepts the applicant’s evidence about his and his family’s abilities to obtain health assistance, and some limited education (including for his daughters) through paying money (and via contacts) as claimed, which did not require the provision of ID documents. It also accepts he was able to rent property in Tehran via a third person as claimed, and that he did not have a bank account.In his oral submission to the Tribunal, the representative contends that the applicant has consistently said he does not have Iranian (or Iraqi) identity documents, or otherwise he would have provided them; he cannot produce what he does not have; and he is an undocumented stateless Faili Kurd. The Tribunal notes three main groups of Faili Kurds live in Iran, including registered refugees who are Amayesh card holders (of both Green and White cards).[21] These are issued to Iraqi refugees resident in Iran and their issue is inconsistent with them being Iranian nationals. The applicant has consistently claimed, from his arrival in Australia to date, that his family were given a Green card in Iran when they first arrived, and the authorities kept that card when the family took it for renewal in 2005. That was why he did not have it when the Basij asked him for his Green card in August 2007 when he was coming home; and he understood this was because Saddam Hussein had gone in 2003 and he was supposed to return to Iraq and was no longer eligible for a Green card.[21] DFAT Country Information Report, Iran 14 April 2020 at 3.23.Even if aspects of his evidence were vague, and his knowledge about Amayesh (and related matters) vague in interviews with the Department, this does not, in the Tribunal’s view, undermine his evidence in this respect, or by extension his claimed identity. In particular, the Tribunal notes the applicant’s limited education and suspicion of authority (as claimed), as someone lacking official status. Further considerations with respect to the applicant’s claimed identityIn addition to the above, the Tribunal has given weight to the following considerations in accepting the applicant’s claimed identity:a.The RSA delegate accepted his claimed identity and he was granted a protection visa under that identity in 2010. b.He has been issued multiple Australian identity documents under his claimed identity, including a TDV, which he used to travel to Iran in 2012. He obtained an Iranian visa to travel to Iran via the Iranian Embassy in Canberra evidence of which was provided to the Tribunal, which was extended in country. This is indicative of him not holding an Iranian passport (for example) at that time, in addition to the relevant Iranian authorities (in Canberra and Iran) being satisfied as to his claimed identity. As noted earlier, the delegate (in the s 107 notice and decision to cancel) was not satisfied this was sufficient evidence to support his claimed stateless identity. However, for the reasons above, the Tribunal has found there is insufficient evidence to have significant concerns about the applicant’s claimed identity and therefore finds his return to Iran in these circumstances supports his claimed identity.c.The applicant’s oral evidence at hearing about growing up in Iran (after arriving there from being expelled from Iraq with his parents and brother (his other brother had been killed) in the 1980s) was reasonably consistent with what he told the RSA delegate, who accepted his evidence in this regard. Although not overly sophisticated or detailed, he was able to talk about his upbringing in Iran and his reasons for leaving there in 2010. The Tribunal notes the applicant’s return to Iran in 2012, the place where he claimed to fear persecution in 2010, does cast doubts to some extent on his earlier protection claims but not necessarily his identity. Even so, 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. Other matters:Both of the applicant’s daughters have now returned to Iran: [Ms C] in 2012 (as discussed), and more recently, [Ms B]. The applicant said at hearing [Ms B] had returned seven months prior. Presently she is awaiting paper work to move to [Country] with her husband (an Iranian and [Country] citizen whom she had married in Australia) and her son, living in Tehran with her parents-in-law. Their returns to Iran raise some doubts about their protection claims made earlier, but not necessarily about the applicant’s claimed identity to the requisite level, as required by Zhao. Conclusions about the applicant’s identityFor the reasons above, and having considered the matters raised in the NOICC, the Tribunal is satisfied of the applicant’s identity is as claimed. It accepts he is [the applicant], born on [Date] in Iraq, who moved to Iran from Iraq when around [Age] years of age. The Tribunal accepts he is stateless and does not have identity documents (pertaining to Iraq or Iran), which explains his inability to provide such documents to the Department over the years. His inertia in providing other requested documents that may be attainable, such as identity documents for his daughter, [Ms C], following her marriage to an Iranian citizen in 2012, whilst of some concern, is insufficient to cause the Tribunal to have significant concerns about the applicant’s claimed identity. Whilst it may not have been easy to live in Tehran for decades without identity documents, affecting his ability to rent property, have children, access medical care and attend school, for the reasons above, the Tribunal has accepted it was possible, often by paying to do so. For similar reasons, the Tribunal has accepted the applicant’s evidence about his departure from Iran in 2010 on a fraudulently obtained Iranian passport.Additionally, as noted, most of the concerns set out in the s 107 notice pertain to questions about the applicant’s alleged stateless status, not directly to his identity, and the Tribunal is not satisfied that such questions, as outlined in the NOICC, are so great (either combined or in isolation) that they undermine his claimed identity to the level required in Zhao. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise. DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.