2101739 (Refugee)

[2023] AATA 1231

2101739 (Refugee) [2023] AATA 1231 (17 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Kamran Ghanbari (MARN: 0848517)

CASE NUMBER:  2101739

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 5:44pm

CATCHWORDS

REFUGEE – cancellation – protection visa – stateless – Faili Kurd – satisfied as to the applicant’s identity – identity documents – daughter’s permanent return to Iran – mental health condition – accessing medical treatment in Iran – registering of home births – daughter’s registered marriage to an Iranian national – issue of Australian identity documents – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 107, 116, 119
Migration Regulations 1994, Schedule 2

CASES

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 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).

2. 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.

3. The applicant appeared before the Tribunal on 6 October 2022 to give evidence and present arguments. The hearing was combined with her husband’s [cancellation] matter.[1]  The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.

   [1] AAT No. 2101738.

4. The applicant was represented in relation to the review. He participated in the hearing via the telephone.

5. 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)

6. The applicant arrived in Australia [in] March 2010 by boat (along with her husband, two daughters ([Ms A] and [Ms B]), and [specified family members]).  She claimed to be [the applicant’s name], born in [Town 1], Iraq on [DOB 1], who moved to Iran when young and was stateless, never having obtained Iranian nationality. 

7. The applicant was interviewed not long after her arrival (the entry interview) and maintained her name, date of birth (DOB) and stateless status.  She 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 30 September 2010.   

8. On 3 September 2014 the applicant lodged an application for Australian citizenship conferral and was interviewed on 22 June 2015, along with her daughter, [Ms B]. Concerns arose about the applicant’s claimed identity during this process for several reasons, including due to providing inconsistent information to the Department about her identity; implausible claims about her personal history; a lack of documents attesting to her claimed identity; and a failure to provide related documents to the Department when requested, such as her daughter [Ms A’s] marriage certificate and/or shenasnameh[2] following her marriage to an Iranian citizen in 2012 and (permanent) return to Iran. 

   [2] Iranian birth certificate/booklet.

9. There were also concerns because the conclusion of an identity integrity assessment undertaken in relation to the applicant’s Australian citizenship application that was finalised on 17 August 2015 was that her identity was not supported.[3]

   [3] A copy of the identity assessment is contained on the Department’s cancellation file.

10. On 17 February 2017 the applicant was sent a notice of intention to consider cancellation (the first NOICC) of her protection visa under s 116 of the Act based on concerns about her claimed identity raised during the application for Australian citizenship and related identity interview and checks. Her representative provided a written submission in response dated 6 March 2017 in which he addresses matters raised by the delegate in the NOICC about the applicant’s claimed identity.

11. On 19 March 2019 the applicant was sent a letter by officers from the Department’s Australian citizenship section inviting her to comment on or respond to discrepancies with her identity, to which her representative provided a response dated 20 March 2019, addressing the specific concerns.  On 31 May 2019 the applicant’s application for citizenship was denied.

12. On 24 November 2020 the delegate sent the applicant a notice of intention to consider cancellation (the second NOICC) in which the applicant was advised the delegate was considering cancelling her protection visa under s 116 of the Act, because he was not satisfied as to her claimed identity. It indicated that the 24 November 2020 s 107 notice superseded the previous one.

13. In summary the NOICC recorded that on 1 September 2010 the applicant was granted a protection visa based on being a stateless Faili Kurd known as [the applicant’s name], born on [DOB 1].  However, since then concerns have been raised casting doubts about her claimed identity, due to inconsistent, contradictory or otherwise incomplete information the applicant purportedly provided in respect of her identity to the Department.  It appears in the NOICC the delegate largely reproduced concerns raised by the identity assessment delegate, summarised as follows.

    Vague personal history including place of birth

    ·At the identity interview on 22 June 2015 the applicant was unable to provide a definitive answer about her place of birth, suggesting it might be [Town 1], Iraq. Also she could not remember her parents’ or grandparents’ birth place, and was unable to give any details about her status as a stateless Faili Kurd.

    ·The delegate considered it implausible the applicant would not be sure of her place of birth or have any memory of her parents birth place particularly given her claimed statelessness.  They noted further that the applicant was able to repeat specific incidences at the time when she first arrived in Australia and her limited knowledge of what it means to be a stateless Faili Kurd casts doubt on her claims of being undocumented. 

    Lack of identity documents

    ·The identity delegate considered it unlikely the applicant would have been able to reside in Iran without any identity documents because according to DFAT advice, the vast majority of Faili Kurd refugees in Iran had valid Amayesh refugee cards.  

    ·Country information was noted showing that the Iranian government from 2001 have had a vested interest in ensuring a high rate of documentation for people within its borders, including Iraqi refugees, and that since 2002 Iraqi refugees have been issued with a White card which bestows benefits including access to schooling, rental properties and medical insurance. 

    ·As a long term resident in various districts in Tehran, the delegate reasoned that the applicant would have been required to rent properties, and her husband advised at his entry interview that they rented a property in Tehran prior to their arrival in Australia.  Renting a property would require the tenant to provide identity documents, which are also required to obtain access to utilities: as such the delegate reasoned that it was not plausible the applicant was an undocumented stateless Faili Kurd residing in Tehran and not subject to declaring her residency status as well as providing identity documentation to the authorities in such ways.

    ·The applicant has maintained she never held identity documents in Iran, including a Green or White card, yet Departmental advice indicates that refugee identification cards offer refugees the legal right to stay in Iran and avoid risk of deportation.  These cards offer access to education, health insurance and can be used as identification to own a bank account: as such the delegate found it unlikely the applicant was able to reside in Iran and rent property and receive publicly available health care without one of these cards.

    ·If an Iraqi refugee residing in Iran, the delegate considered it more likely the applicant  and her husband would have been issued a White card in or about 2002 to ensure Iranian registration records were current.  The delegate goes on to state it is therefore reasonable to assert the applicant currently holds, or held, documentation attesting to her identity.

    Departure from Iran on a false passport

    ·The delegate noted that there are significant barriers to international travel faced by undocumented Faili Kurds attempting to leave Iran, yet the applicant claimed at the entry interview that she was provided with a false passport to leave, organised by her husband. 

    ·The delegate considered the applicant has not provided a plausible explanation as to how she departed Iran – essentially bypassing the secure border processes known to exist through the country, particularly at international airports where passport details are electronically matched with official records, with reference to country information. 

    Children’s births

    ·Country information indicates it is mandatory for all children born in Iran to be registered within 15 days of their birth, regardless of their parents’ nationalities.  Registering her daughters’ births would have required the applicant and her husband’s identity documents, the delegate reasoned, who also found it implausible they would not have been obligated to fill the registration requirements regarding the birth of their children. 

    ·As such, the delegate considered the applicant may be withholding her children’s birth certificates or registration papers in an effort to conceal her and her husband’s Iranian residency or citizenship status.

    Her daughter [Ms A’s] marriage to an Iranian citizen

    ·At the applicant’s identity interview she said her daughter, [Ms A], was married to an Iranian – [named] – by a temporary marriage (‘Sihreh’) as her daughter did not have documents or identification for a full marriage.  However after the applicant was shown photographs of the wedding from [Ms A’s] [social media] profile the applicant (and her daughter [Ms B]) admitted the wedding was a permanent marriage.

    ·At the identity interview [Ms B] said that [Ms A] had remained in Iran without identity documents following her return to Australia in 2012.  The delegate considered this not plausible as she would not have a right to remain permanently in Iran as the holder of an Australian Titre de Voyage (TDV), and considered it more likely [Ms A] holds identity documentation which, if provided to the Department, would assist in establishing the applicant’s identity.

    ·[Ms A’s] marriage, the fact she has a child, and has not since returned to Australia – despite claiming protection in Iran – indicated to the delegate that [Ms A] holds identity documentation: namely a marriage certificate, an Amayesh (refugee registration card), a shenasnameh (birth record) or an Iranian passport possibly used to facilitate her permanent return to Iran.

    Failure to provide identity documents

    ·     The delegate also considered the applicant’s claims about being unable to provide any documentation pre-dating her arrival in Australia implausible and that it appears she did not make a genuine attempt to obtain any identity documentation from Iran despite the Department requesting in writing that she does so.

    Medical treatment in Iran

    ·     In his protection visa application the applicant’s husband noted the applicant was seriously injured in a car accident involving the Basij in 2009 and suffered problems with her memory, and was treated in Iran by doctors and psychologists. 

    ·     Medical documents from 2015 provided by the applicant from her doctor and treating psychiatrist in Australia as part of her request to be exempt to sit the Citizenship test, state that she has had ongoing treatment in Iran since 2000 and Australia since 2010 for her diagnosed mental health condition: schizoaffective disorder.  The psychiatrist noted the applicant had multiple admissions into acute psychiatric inpatient units in Iran.

    ·     The delegate notes a discrepancy between the applicant’s doctor’s report stating she had been receiving treatment in Iran for her condition since 2000 and her husband’s reference to the car accident in 2009, after which she reported memory loss.

    ·     The applicant failed to provide medical records from Iran to help the Department establish her personal history and identity, despite several requests.

    ·     The delegate considered the applicant’s ability to attain multiple admissions to inpatient units in Iran contradicts her claims at the protection visa stage that she could not get proper medical help due to her undocumented status when she had the car accident.

    ·     Additionally the delegate found the applicant’s claim during her identity interview that she could not remember anything about her medical treatment as well as her (then) current diagnosis implausible.

    ·     The delegate notes that based on available country information the applicant would not have had access to medical care unless she was documented.  As well, given she has been admitted to hospital on multiple occasions, he reasons that there would be records available which would assist in confirming her identity with the Department. 

    ·     The delegate was of the view the applicant’s lack of disclosure about her medical records from Iran, the inconsistencies around the history of her medical condition (as noted in her husband’s statements to the Department), and the reports of her having been admitted to hospital several times was done in order to conceal her identity. 

14. The delegate concludes the s 107 notice by stating that he finds the information provided in relation to the applicant’s identity to be ‘inconsistent, contradictory or otherwise incomplete or not supported by verifiable documentation as previously requested’. These concerns, combined with the fact there was no other documentation which satisfactorily evidences the applicant’s claimed identity, led the delegate to consider the applicant’s identity is not known, and that there appeared to be grounds for cancelling her visa under s 116(1AA) on the basis that they were not satisfied as to the applicant’s identity.

    Response to the NOICC

15. In response[4] to the NOICC which sets out these concerns, the representative submitted that there are no grounds for cancellation in the applicant’s case and that the applicant does not agree with the alleged non-compliance as set out in the notice.  She maintains that the identity in which she has been granted a protection visa was (and is) her identity.  

    [4] In a written submission dated 28 November 2020.

16. The representative addressed the specific concerns particularised in the NOICC, considered below where relevant when considering whether the grounds for cancellation are made out.

    Decision to cancel

17. The delegate decided to cancel the visa on 11 February 2021, not satisfied as to the applicant’s identity under s 116(1AA) of the Act. The delegate considered the responses provided to the NOICC including the explanations proffered for several inconsistencies in aspects of the applicant’s evidence, however, ultimately did not accept them.

18. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in the documents submitted in response to the NOICC but stated that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel visa.

    Review of the cancellation decision

19. The Tribunal went through the relevant contents of the NOICC with the applicant at hearing.  She confirmed her name, DOB and statelessness status as set out in the protection visa application and therefore disagreed with the delegate’s findings in relation to her identity. 

20. The Tribunal notes very early into the hearing the applicant complained of feeling unwell and stressed.  After some very limited discussion (and a break), she stopped responding altogether to the Tribunal’s questions.  Her husband told the Tribunal she has experienced mental health problems for the past 13 years and her cognitive functioning including memory issues worsened after a car accident in Iran.  She has spent time in hospital getting treatment for her mental health issues several times in Iran and Australia: including twice staying at [Hospital 1] for over a month.  He said the applicant has seen psychologists and psychiatrists in the past but no one presently, however she regularly attends [Hospital 1], and visits members of the [Unit 1] team there.  He said she takes fortnightly injections of anti-depressants.  She is too unwell to work. 

21. Although no contemporaneous evidence pertaining to the applicant’s mental health status has been provided, the Tribunal accepts her husband’s evidence about her mental health issues and current status.  It notes in the delegate’s decision record (and NOICC) reference is made to medical evidence provided in support of the applicant’s application for Australian citizenship in 2015, including from her then treating psychiatrist from [Unit 1] who refers to her schizoaffective disorder diagnosis and long term treatment for mental health issues in Iran since 2000 and in Australia since 2010.  The applicant’s serious mental health issues are not in dispute. 

22. Further, it became apparent at the Tribunal hearing that the applicant was not well enough to give oral evidence.  The Tribunal proceeded to take evidence from her husband about issues that arise in both of their cancellation matters, detailed below where relevant.   

23. At hearing the Tribunal sighted the applicant and his wife’s Australian travel documents (TDV) used to return to Iran for his daughter’s marriage in 2012 (copies of the relevant pages were submitted).  These show exit and entry stamps and Iranian visas, indicating they used those documents to enter and depart from Iran at that time. 

24. At hearing the representative submitted that the applicant is not an Iranian and is undocumented, which is what she has consistently claimed, and why she does not have documents (and is unable to access them) to prove her stateless status. 

    Does the ground for cancellation exist?

25. The applicant was granted a Class XA Subclass 866 protection visa on 30 September 2010. 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). A visa may be cancelled under s 116(1AA) if the Minister or the Tribunal is not satisfied as to the visa holder’s identity. An example provided in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014,[5] of when this ground may be made out is if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine.

    [5] At p.24.

26. 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.

1. 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. Also, where, in response to a notice under s 119 of the Act, the visa holder satisfies the delegate as to their identity.[6]  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.

   [6] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 21/8/16).

2. The Guidelines also caution that ‘In deciding whether they are satisfied as to a visa holder’s identity, delegates must consider the visa holder’s individual circumstances, and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status’.[7]   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. The policy stipulates that to be satisfied as to a stated identity, Department officers must have concluded that it is more likely than not that the visa applicant is who they say they are, that is, the officer has reached a ‘level of confidence’ in the visa applicant’s stated identity.[8] 

   [7] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 29/3/2020).

   [8] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Assessing the identity of visa applicants – IDENTITY ASSESSMENT & THE VISA DECISION PROCESS – Officers must be satisfied as to a stated identity.

3. Departmental policy defines the ‘three pillars of Identity’ for visa purposes as consisting of:

   ·documents – containing biographic information, such as name, date of birth;

   ·information – the life story of the applicant(s); and

   ·biometrics – evidence that links a person’s biographic information to physical attributes, including facial images and fingerprints.[9]

   [9] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Bogus Documents – Detection, Seizure and Retention – Identity – What is Identity

4. The Tribunal has considered the concerns about the applicant’s identity set out in the s 107 notice (and the basis for these concerns), the applicant (and her husband’s) and her representative’s written responses about these concerns to the Department and Tribunal, the applicant’s (and her husband’s) oral evidence at hearing and other relevant evidence to determine whether the grounds have been made out. 

5. In doing so the Tribunal notes relevant case law that a mere suspicion is not sufficient to establish the ground for cancellation. In Zhao v MIMA, the Full Federal Court stated:

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[10]

   [10] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

6. The Tribunal accepts the applicant is a Faili Kurd.  She has consistently claimed as such and this was not raised as a specific issue in the NOICC.

7. At issue is whether the applicant’s claimed identity as [the applicant’s name], born on [DOB 1], is her actual identity.  As mentioned, doubts about her claimed identity have arisen for several reasons including because of her limited knowledge about stateless Faili Kurds and being undocumented in Iran; the implausibility of being a resident in Tehran for decades without identity documents (and accessing health treatment); a lack of documents attesting to her claimed identity from before she arrived in Australia; and a failure to provide related documents to the Department when requested.

8. The applicant’s husband and the representative have provided explanations where possible about such inconsistencies and vagueness, including the context in which they occurred.  The representative argues that the Tribunal must consider that, given the applicant’s background as a stateless Faili Kurd and serious mental health issues, it is unsurprising she struggled to remember certain past events and details about her and her family’s background, and is unable to produce identity documents due to her stateless status.

9. The Tribunal has taken into account these submissions, the applicant’s husband’s oral evidence, the response to the NOICC and any other relevant material when determining whether the grounds for cancellation (in this case not being satisfied as to the applicant’s identity) are made out.

10. The Tribunal considers the concerns about the applicant’s identity as set out in the NOICC are matters that go more to questions about her claimed statelessness and/or lack of nationality at the protection visa stage, not necessarily to her identity. This is evident in the way the representative has responded to both NOICCs, in which he refers to citizenship issues.  In the Tribunal’s view, the applicant’s nationality, including concerns around her status as a stateless, undocumented Faili Kurd from Iran, do not directly affect her identity, which is essentially established through her name, date and place of birth and family relationships: in the Tribunal’s view these have not been brought into question in any substantial way, except for her vagueness about her place of birth (discussed further below).  Nonetheless the Tribunal has considered the specific concerns raised by the delegate in the s 107 notice which led them to not be satisfied as to her identity, as follows. 

11. Vague personal history: the s 107 notice records the delegate’s concerns about the applicant’s inability to provide definitive answers about her and her parents’ and grandparents’ places of birth at her identity interview, particularly given her claims to be stateless. 

12. In response to the s 107 notice the representative submits that it is a matter of concern that the applicant’s uncertainty about her birthplace is an issue, particularly as she was [age] when ejected from Iraq with her family and then became stateless and undocumented in Iran.  Unless the family history is reviewed orally and repeatedly, most children will lose such information, he contends. Additionally, the applicant’s mental health condition is likely to have significant adverse impacts on daily function and likely contributed to her confusion and anxiety.

13. Although vague, the applicant has consistently claimed to have been born in Iraq, and expelled to Iran when young with her parents.  This is what she told the Tribunal at the hearing although she was not able to provide any details, including about her parents or grandparents.  Whilst this may appear evasive, given her serious mental health condition and memory problems post car accident in Iran, and noting she left Iraq when only a child, the Tribunal does not find this surprising.  Such vagueness about her place of birth and that of her parents and grandparents, given these circumstances and context, does not cause the Tribunal to have significant concerns about her claimed identity.

14. Lack of identity documents: the delegate records in the s 107 notice (and decision record) his disbelief that the applicant could reside in Iran without any identity documents, noting the vast majority of Faili Kurds had Amayesh cards (with several benefits); that from 2001 the Iranian government had a vested interest in ensuring a high rate of documentation; and that identity documents would be required to rent property, access schooling and medical care.  The delegate reasoned therefore that it was highly likely the applicant and her husband did hold documentation – such as White cards – attesting to their identity.

15. In response to the s 107 notice the representative challenged the delegate’s assumption that the applicant must have had access to the Amayesh system of White cards in Iran, especially for opening bank accounts, obtaining health insurance and renting property given there is no evidence of such.  He contends that it is therefore inappropriate to assume she had such identity documents. He adds that a view that something is ‘highly unlikely’ is not proof of actuality.

16. The representative goes on to add that the delegate ignores the realities of life for many Faili Kurds who initially were denied identity documents in the early years.  Further the Amayesh system did not prevent widespread discrimination against Kurdish people or guarantee education, health or welfare and for many Iraqi Kurdish refugees there was limited value in possessing the cards. As well, given one of its purposes was to identify people who could be returned to Iraq, many refugees did not want to carry such cards.

17. With respect to her ability to obtain health treatment in Iran without identity documents, the representative submits that whilst accessing medical treatment for undocumented patients is difficult, it is not impossible.  Private clinics accept such patients on a fee-for-service basis, he submits.

18. At hearing the applicant’s husband explained the reason he and his wife have not been able to provide documents from Iran showing their identity is because as undocumented Faili Kurds originally from Iraq, they do not have any.  He described how he and his wife were both born in Iraq and moved to Iran when young with their respective families.  He said he married the applicant, who is a distant cousin, when he was still young (around [age range]), 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. 

19. The applicant’s husband 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 identity documents to attend night school.  He worked mostly as a street vendor or in part- time jobs such as cleaning (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. 

20. The applicant’s husband said their daughters also attended night school 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.  It was not like regular schools; they were not given a certificate at the end of the course.  Additionally, the applicant’s husband 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.

21. With respect to the issue raised in the NOICC 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, the applicant’s husband 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.  He noted that money can do everything in Iran. 

22. Based on country information that indicates bribery and corruption occur in Iran (detailed further below), the Tribunal accepts the applicant’s husband’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) when they lived in Iran as claimed, which did not require the provision of ID documents.  It also accepts he was able to rent property in Tehran via someone else as claimed.    

23. 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).[11]  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 her arrival in Australia to date, that she never held identity documents in Iran, including a Green or White card which the delegate found hard to believe given country information indicates the vast majority of Faili Kurd refugees in Iran had valid Amayesh refugee cards, and identity cards bestowed certain benefits and were required to access health care among other things, as noted.   For the reasons above the Tribunal accepts that was the case.  The applicant’s evidence about being undocumented in such circumstances does not cause the Tribunal any significant concerns about her claimed identity.

    [11] DFAT Country Information Report, Iran 14 April 2020 at 3.23.

24. Departure from Iran on a false passport: The s 107 notice records that the delegate considered the applicant had not provided a plausible explanation about her departure from Iran, as her claim during the entry interview that she did so using a false passport (organised by her husband) given significant barriers to international travel faced by undocumented Faili Kurds attempting to leave Iran.  Also because it is at odds with the fact that Iranian international airports are known to be very secure.

25. The representative notes in his response the delegate’s observation in the s 107 notice that ‘forged visas or visas obtained through false information exist’ and therefore it is not impossible to obtain them in Iran.  He goes on to say that unless the delegate can produce a genuine passport – as suspected – and evidence of its use by the applicant, the assertion that it is more plausible to leave via a border crossing on a genuine passport in the NOICC is mere supposition. 

26. In his oral evidence to the Tribunal the applicant’s husband said he (and his family members) left Iran in 2010 via the Tehran airport on Iranian passports arranged by a people smuggler, who told them to get their passport checked with a specific officer.  He is not sure if his passport was fake or genuine, but he paid someone to obtain it (and his family members). 

27. The Tribunal notes the applicant and her husband have consistently claimed that they left Iran on fraudulently obtained passports, which was accepted by the Refugee Status Assessment (RSA) delegate in 2010. 

28. 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,[12] existed when the applicant obtained her passport in 2010.

    [12] 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.[13]  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.[14]

    [13] Landinfo Country of Origin Information Center, Report, Iran, Passports, ID and civil status documents’, 5 January 2021, p 40.

    [14] Ibid, at p 41.

29. 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,[15] which is what the applicant has consistently claimed.  DFAT also noted that corruption was endemic in Iran.[16]

    [15] DFAT Country Information Report, Iran, 21 April 2016 at 5.49.

    [16] DFAT Country Information Report, Iran, 29 November 2013 at 2.9.

30. Such country information indicates that it is possible the applicant departed Iran in 2010 on a genuine passport obtained through fraudulent means, as consistently claimed.  It does not cause the Tribunal to consider she is not who she claims to be.

31. Children’s births:  In the s 107 notice the delegate considered it implausible the applicant would not have registered her daughters’ births in Iran, which is mandatory, and by implication considered she may be withholding their birth certificates or registration papers in order to conceal her and her husband’s ‘Iranian residency or citizenship status’.

32. The representative did not explicitly address this particular issue in his response to the  NOICC. 

33. As noted, at hearing the applicant’s husband said their daughters were born at home and they did not register their births.  The Tribunal accepts his evidence in this regard, particularly as for reasons above and below it accepts they were undocumented stateless persons living in Iran.  The fact the applicant and her husband failed to register their daughters’ births in Iran does not cause the Tribunal significant concern about the applicant’s claimed identity.   

34. Her daughter [Ms A’s] marriage to an Iranian: The s 107 notice records the delegate’s suspicions that the applicant’s daughter, [Ms A], may have held Iranian identity documents (including an Iranian passport) to facilitate her permanent return to Iran, where she has married an Iranian and has had a child.  Particularly as they found it implausible [Ms A] had remained in Iran on an Australia TDV as [Ms B] had purportedly indicted at the identity interview, and because [Ms B] and the applicant indicated at that interview [Ms A’s] marriage was a temporary one, in contrast to what was depicted in photographs of the wedding from [Ms A’s] [social media] profile.

35. In his response to the s 107 notice the representative submits that it appears the delegate was trying to make something significant from [Ms A’s] wedding to an Iranian citizen, which is not in dispute.  He argues that issues of [Ms A’s] citizenship do not relate to the applicant and her claims, particularly as [Ms A] appears to have gained Iranian citizenship through marriage, and their child is also Iranian by virtue of his father’s status.  This would protect her against the discrimination [Ms A] experienced as a child, undocumented and stateless, but none of that has any bearing on the applicant’s citizenship, or lack of, he contends. 

36. Additionally the representative notes his concern that the delegate appears to base much of their reasoning on [social media] pages, which do not meet the test of valid evidence what would be required in a legal matter, especially when ‘reading between the lines’ when applying what can be actually there. 

37. It is submitted further that the applicant and her daughter, [Ms B] possess a significant lack of knowledge about migration issues and citizenship processes in Iran; that most people in the situation of the applicant would not be familiar with the content and meaning of Article 976 of the Civil code and therefore would not necessarily know that a woman marrying an Iranian citizen may acquire citizenship by virtue of marriage.

1. The delegate also appeared to draw an adverse inference from the applicant’s failure to produce [Ms A’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 A] 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.

2. At hearing the applicant’s husband confirmed that [Ms A] 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 when she got married in Iran (in 2012), as her father he went with her and her husband to the ‘special offices’ to sign the relevant documents to register their marriage.  The officials relied on his details contained in his TDV to do so. 

3. Additionally he said [Ms A’s] 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 A] (and her husband) would do this, the applicant’s husband said he could not understand their reasons, 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’s husband said he has no idea. 

4. Whilst [Ms A’s] marriage to an Iranian national, and her seemingly permanent return to Iran in 2012, may raise questions about the claims made in 2010 regarding her fears of persecution as a stateless Faili Kurd (and by implication, her parents’ claimed fears including stateless status), this information does not, of itself, raise significant concerns about the applicant’s claimed identity.  This is particularly the case as, even if [Ms A] has been an Iranian national since 2012, she achieved that through marriage that year: there is no probative evidence indicating she was an Iranian national before then. 

5. The applicant’s husband told the Tribunal at hearing when he asked [Ms A] 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 A] 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 her family) were stateless Faili Kurds in Iran before they came to Australia, and the Tribunal does not find [Ms A’s] failure to provide her identity documents raises any significant concerns, as to the applicant’s claimed identity.   

6. Failure to provide identity documents when requested: It is recorded in the s 107 notice the delegate’s concern about the applicant’s failure to provide any document pre-dating her arrival in Australia, and not making any attempts to obtain any identity documentation from Iran despite the Department requesting in writing that she does so.

7. In response to the s 107 notice the representative argues that the applicant’s failure to produce requested documents such as [Ms A’s] shenasnameh – whilst frustrating – does not allow a leap to the conclusion that the family may be Iranian nationals: there needs to be something more substantial to support the delegate’s views.  Further he argues that the family history of statelessness is not set aside by any of the matters raised by the delegate in the s 107 notice and none meet the high standard required to refuse citizenship. 

8. The Tribunal agrees the applicant’s (and her husband’s) seeming lack of cooperation in providing various documents which may have helped establish their identities does raise some concern about their claimed identities.  However not to the requisite degree as required by Zhao, particularly taking into account their background and circumstances as undocumented stateless persons, which for the reasons above and below the Tribunal has accepted.   

9. Medical treatment in Iran: The s 107 notice records the delegate’s suspicions about the applicant’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.  Also because country information indicates she would not have had access to medical care unless documented. 

10. The fact the applicant failed to provide medical records from Iran when requested by the delegate contributed to his suspicions that all of this was done to conceal her identity. 

11. The delegate also found it implausible the applicant could not remember details of her medical treatment and her then current diagnosis at the identity interview, and noted a discrepancy in the applicant’s doctor’s report stating she had been receiving treatment in Iran for her condition since 2000 and her husband’s reference to the car accident in 2009, after which she reported memory loss.

12. In response to the s 107 notice the representative argues that whilst it can be difficult for undocumented patients to access health treatments in Iran, it is not impossible, and private clinics will accept such patients on a fee-for-service basis.  Additionally he argues that the applicant’s mental health condition should not be conflated with the problems she experienced when seeking treatment after her car accident.  The Tribunal agrees that these should not necessarily be conflated. 

13. As note, at hearing the applicant’s husband explained that his wife used to attend a private hospital in Tehran – he forgot the name – for treatment of her mental health issues for which he paid a lot of money.  The doctors treated her without asking for any ID, and he 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. 

14. Given the applicant’s serious mental health issues, which affect her memory, the Tribunal does not necessarily reach the same conclusion as the delegate that the applicant’s vagueness about her mental health and other health history and failure to provide medical documents was done to conceal her identity. 

15. The Tribunal notes whilst the delegate states that based on country information the applicant would not have had access to medical health care in Iran if undocumented, no particular country information is referenced in the NOICC or cancellation decision record.  As noted earlier, country information indicates that bribery is an issue in Iran.  The Tribunal also notes  that whilst the government remains the main provider of primary health care services in Iran, the private sector plays a significant role in health care provision[17].  For these reasons the Tribunal considers it possible the applicant was able to obtain medical treatment in Iran in the past by her husband paying private fees, as submitted.  It accepts he was only required to pay money, not show ID at the time: which may explain why he and his wife have been unable to provide medical records, including when requested. 

    [17] DFAT Country Information Report, Iran, 14 April 2020 at 2.22.

16. None of these concerns related to the applicant’s ability to obtain medical treatment in Iran  cause the Tribunal to have significant concerns about her claimed identity.

    Further considerations with respect to the applicant’s claimed identity

17. In 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 her claimed identity and she was granted a protection visa under that identity in 2010. 

    b.She has been issued multiple Australian identity documents under her claimed identity, including a TDV which she used to travel to Iran in 2011 and 2012, obtaining visas via the Iranian Embassy in Canberra, evidence of which was provided to the Tribunal.  In 2012 her visa was extended in country.  The representative submits that if the applicant and her family were Iranian citizens, the authorities would have identified the discrepancy and would not have allowed them to enter Iran using their Australian documents.  The Tribunal tends to agree that this is indicative that she did not hold an Iranian passport (for example) at that time, in addition to the relevant Iranian authorities – in Canberra and Iran – being satisfied as to her claimed identity.  The Tribunal notes the delegate (in the s 107 notice and decision to cancel) was not satisfied this was sufficient evidence to support the applicant’s claimed stateless identity.  Yet for reasons above the Tribunal has found there is insufficient evidence to have significant concerns about the applicant’s claimed identity and therefore finds her returns to Iran in these circumstances support her claimed identity.

18. The Tribunal notes the applicant’s return to Iran in 2011 and 2012 – the place where she claimed to fear persecution in 2010 – does cast doubts to some extent on her earlier protection claims: but not necessarily her identity.  Even so, a short term visit does not undermine her protection claims in their entirety, particularly given they related to her 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:

19. The Tribunal notes that both of the applicant’s daughters have now returned to Iran: [Ms A] in 2012 (as discussed) and more recently, [Ms B].  The applicant’s husband told the Tribunal at hearing [Ms B] had returned seven months prior.  Presently she is awaiting paperwork to move to [Country 1] with her husband (an Iranian and [Country 1] citizen whom she had married in Australia) and her [child], 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.

    Conclusion about the applicant’s identity

20. For the reasons above and having considered each matter raised in the NOICC, the Tribunal is satisfied the applicant’s identity is as claimed.  It accepts she is [the applicant’s name] born in Iraq on [DOB 1]. 

21. The Tribunal accepts she is stateless and does not have identity documents, which explains her inability to provide as such to the Department over the years.  Her inertia in providing other requested documents which may be attainable, such as her daughter, [Ms A’s] identity documents 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 – including to rent property, have children, access medical care and attend school (in her children’s case) – for the reasons above the Tribunal has accepted it was possible, often through paying someone to do so.  For similar reasons the Tribunal has accepted the applicant’s evidence about her and her family’s departure from Iran in 2010 on fraudulently obtained Iranian passports.

22. 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 about her identity, and the Tribunal is not satisfied that they are so great – either combined or in isolation – as to undermine her claimed identity as per the requisite level in Zhao. 

23. 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.

    DECISION

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

    Nicole Burns
    Member