2101739 (Refugee)

Case [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…

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2101739 (Refugee) [2023] AATA 1231
Case
[2023] AATA 1231
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant who claimed to be a stateless Faili Kurd from Iran. The applicant arrived in Australia in 2010 and was granted a protection visa based on her claimed identity and stateless status. Concerns about her identity arose during an Australian citizenship application process, leading to multiple notices of intention to consider cancellation of her protection visa.

The Tribunal was required to determine whether the applicant's claimed identity was sufficiently established, particularly in light of inconsistencies and a lack of supporting documentation. Key issues included the plausibility of her claims regarding statelessness, the registration of her daughters' births in Iran, her daughter's marriage to an Iranian national and subsequent return to Iran, and the applicant's ability to access medical treatment in Iran as an undocumented person. The Tribunal also considered the applicant's failure to provide requested identity documents.

The Tribunal reasoned that while certain aspects, such as the daughter's marriage and return to Iran, and the applicant's initial failure to provide documents, raised questions, they did not, in isolation or combination, create significant concerns about the applicant's claimed identity to the requisite legal standard. The Tribunal accepted evidence that obtaining Iranian identity documents and accessing services like medical treatment could be achieved through bribery and private payments, consistent with widespread corruption in Iran. Furthermore, the Tribunal gave weight to the fact that the applicant's identity had been accepted when she was granted her protection visa in 2010 and that she had used Australian travel documents to re-enter Iran without issue.

Consequently, the Tribunal was satisfied that the applicant's identity was as claimed and that she was stateless. The Tribunal concluded that the grounds for cancellation under section 116(1AA) of the Migration Act 1958 (Cth) did not arise. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 866 (Protection) visa.

Orders

Orders of the court

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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 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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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,[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.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.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.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’. The representative did not explicitly address this particular issue in his response to the NOICC. 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. 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. 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. 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. 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.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.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. 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. 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. 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. 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.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. 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. 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. 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. 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.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. 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. 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. 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.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 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 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.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: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 identityFor 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]. 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.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. 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

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