2207993 (Migration)

2207993 (Migration) [2023] AATA 4864 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2207993
MEMBER:Meena Sripathy
DATE:18 July 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 18 July 2023 at 12:09pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – subclass 155 (Five Year Resident Return) – not satisfied as to the visa holder’s identity – incorrect and inconsistent information about identity, date of birth andfamily composition – Faili Kurd ethnicity – psychological and mental health – consistent documentation and corroborating evidence provided – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 375
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 May 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1AA) on the basis that the delegate was not satisfied as to the visa holder’s identity and concluded the reasons for cancelling the visa outweigh the reasons not to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 May 2023 and 17 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
Following the first hearing, the Tribunal was advised on 2 June 2023 of the appointment by the applicant of a new representative, Mrs Anna Ryburn of Ryburn Solicitors, who attended the second hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND AND EVIDENCE
The applicant arrived in Australia by boat on[date] June 2010 to Christmas Island. Following his arrival he participated in a Biodata interview on 28 June 2010. He provided further information to the Department on 4 July 2010. On 22 July 2010 he had an Entry interview during which he also provided various information relating to his identity and background.
On 10 September 2010 the applicant made a request for a Refugee Status Assessment (RSA) on the basis of claims that he was an Iranian born, stateless Faili Kurd. The delegate accepted he was stateless and a Faili Kurd in Iran but and was not satisfied he faced a well founded fear of persecution in Iran. He lodged a request for an Independent Merits Review (IMR) of this outcome on 3 May 2011 and on 19 September 2019 he was found by the reviewer to meet the definition of a refugee and recognised as a person to whom Australia owed protection obligations. During the IMR process he provided certain different information relating to his identity, including his date of birth. On 13 October 2011 the applicant lodged an application for a Protection visa, and provided identity information in the context of that application. The applicant was granted a Protection visa on 19 October 2011.
On 14 December 2015 the applicant lodged an application for Australian citizenship stating his identity as [Mr A], born on [date], and provided a Change of Name Certificate issued by NSW Births Deaths and Marriages.
On 9 November 2017 the applicant participated in an Identity interview associated with the citizenship application. On 22 May 2018 an Identity Assessment Report was completed, concluding that the identity the applicant used when applying for his Protection visa was “not supported”.
On 7 September 2018 the applicant was granted a Resident Return visa under the name [Mr A].
An invitation to comment on adverse information was sent to the applicant by the Citizenship delegate on 14 December 2021. No response was received.
On 8 March 2022 the applicant’s Citizenship application was refused.
On 5 April 2022 a Notice of Intention to Consider Cancellation under s116 of the Migration Act was sent to the applicant.
The NOICC set out the following issues arising regarding the matter of his identity.
Information about his name and date of birth
He gave various versions of his name upon arrival, including [Mr B, comprised of Given Name 1 and Family Name 1], born in [Year 1]. He subsequently told the Department on 04 July 2010, that a people smuggler told him to give an incorrect surname and date of birth. During his Entry Interview and in his Protection visa application, he stated his name is [Mr C, comprised of Given Name 1 and Family Name 2, which is a shorter version of Family Name 1], and claimed to be a minor born in [Year 2]. He stated that he had not been known by any other names. During his IMR process, his request form stated he was born in [Year 1], however the IMR decision record detailed that he had said he was born in [Year 2].
During his Identity Interview in 2017 he stated that [Mr C] and [Mr B] were the same name.
On 18 September 2015, he legally changed his registered name to [Mr A] with the NSW Births, Deaths and Marriages Registry and on 18 December 2019, he legally changed his registered name from [Mr A] to [Mr D, comprised of Given Name 2 and Family Name 3]. He was invited to provide an explanation for this name change by the Citizenship delegate on 14 December 2021 as the name [Mr D] does not appear to be Christian in nature, however he did not respond.
His social media profiles records his name as [Mr C]. However it was noted that commentary by his contacts appears to indicate the use of the name [Given Name 2] in the community as far back as five years ago. His social media profiles recorded (at the time) his date of birth as [date in Year 3], which appears to be contrary to his claims of being born in [Year 1] or [Year 2].
On the basis of the above the delegate indicated he had not provided identity documents to support his claimed identity.
Place of birth
In his Biodata Interview, Entry Interview, RSA application and Protection visa, the applicant stated he was born in [Village 1] village, Ilam, IRAN.
In his Australian Citizenship by Conferral application lodged on 14 December 2015, he stated he was born in [Town 2], Illam, Iran. It was noted that the areas of [Village 1] in Ilam and [Town 2], Iran are approximately 123 kilometres apart in distance.
In his Identity Interview, he claimed he did not know where he was born, stating he may have been born in [Town 2], Iran, but did not know how long he lived there and was unable to provide any significant information about the area. The delegate was of the view these inconsistencies cast doubt over the truth of his answers in his Biodata, Entry, RSA and Protection visa interviews.
Documentation
The applicant has consistently, since his arrival in Australia, claimed to be undocumented, including not having a Green or White Card issued to refugees in Iran. During his Identity Interview, he claimed that in remote areas of Iran, many Kurdish people remained unregistered and that he had never held any identification documents. He claimed to have never heard of the Bureau for Aliens and Foreign Migrants Affairs (BAFIA), who were responsible for issue refugee documents.
The NOICC stated that country information disputed his claim that many Kurdish are unregistered, recording that there has been ongoing and regular updates to Amayesh cards (which superseded the Green and White Cards)[1], which would appear to indicate he was not a refugee in need of services provided to refugees. During his Identity Interview, it was put to him that his father, and later his mother, would have used identification in order to seek treatment and medical from an Iranian hospital. He initially stated that his family did not hold any form of documentation, however later retracted this statement, admitting that his mother’s family had received identity cards in the 1980s when fleeing Iraq.
[1] Iran - Common Claims - September 2019 (Word)', Country of Origin Information Services Section (COISS), 09 September 2019, 20190909125417
The Department obtained information from the NSW Department of Roads and Maritime Services (RMS) with respect to the issuance of the applicant’s NSW driver licence. NSW RMS confirmed that he provided an Iranian Driver Licence (licence number[deleted]) issued in 2006, that recorded the name [Mr C]. According to the translation he provided with the document, the licence recorded a shenasnameh number of [number]. The NOICC referred to country information which records that only Iranian citizens are issued with a shenasnameh, and therefore, the shenasnameh issued to him, appears to be confirmation of his status as an Iranian citizen. According to the Civil Code of the Islamic Republic of Iran (the Civil Code), Article 976, Iranian citizenship stems from the paternal line, and as a result, the Civil Code confirms your father is also likely an Iranian citizen. The Civil Code further prescribes that a person whose father is an Iranian national regardless of his/her place of birth; is regarded as an Iranian national.[2] He was requested by the Citizenship delegate to provide his original Iranian Drivers Licence and any other identity documents in his possession. The requested documents were not provided.
Applicant’s parents and their identities
[2]
In his Biodata Interview, the applicant claimed his father, [Mr E, comprised of Given Name 3 and Family Name 1] (date of birth unknown) had died in approximately 1995 and his mother was born in [year] and residing in Iran.
In his Entry Interview, he claimed his father had died sometime between 1995 and 2000 due to cancer, and that his mother was born in [year] and was residing in Iran.
In his RSA statement of claims submitted to the Department on 10 September 2010, he claimed his father has passed away due to illness when he was [age] years old (either 1990 or 1998). He stated his father was born in [year] and his mother was born in [year].
During the IMR process, he claimed his father had died of natural causes.
In his Australian Citizenship by Conferral application, he stated that his father was born in [Town 2], Iraq, which is a location in Iraq that does not appear to exist. He stated he did not know his mother’s date of birth, but that she was also born in Iraq. On the basis that he appears to hold a shenasnameh, the delegate indicated that it was more likely that his father was born in [Town 2], Iran.
During his Identity Interview, the applicant initially stated that both his parents had died of cancer, however later retracted this statement, and made statements that his mother was very ill and in hospital, and on another occasion that she had only visited the hospital for medicine.
The delegate was of the view these inconsistencies undermined the credibility of the applicant’s claims to be a stateless Faili Kurd.
Employment and education
Since the applicant’s arrival, he has maintained that he completed five years of schooling, although the dates claimed have been different. In his Biodata Interview, he stated he attended [School 1] between 1994 and 1999. However, in his Entry Interview, he stated he attended [School 1] between 2001 and 2006.
According to information available from his social media profiles, he recorded that he attended a private Iranian University, named [University 1].
In the invitation to comment, the Citizenship delegate invited the applicant to comment on information held by the Department that evidenced he had sent tens of thousands of dollars to other individuals between 2016 and 2020. In his Australian Citizenship by Conferral application, he stated his occupation as “Disability support pension”. On previous occasions he had stated he worked in various occupations including as a labourer between 1998 and 2010 (Biodata interview 28 June 2010, or from 2005 to 2010 – Entry interview 22 July 2020); as a [Occupation 1] from age 13 to 17 (4 July 2010 interview).
The delegate noted that his employment and education history appears to contradict his claims of being [age] years old at time of arrival and a stateless Faili Kurd with little schooling.
The NOICC stated that the above information indicated the applicant had provided inconsistent and contradictory information regarding his identity, his parents and their dates of birth, as well as his life story as follows:
·He claimed on his arrival at Christmas Island that his identity is [Mr B] (DOB: [Year 1]). One week later, he claimed people smugglers had told him to provide the Department a false surname and date of birth, and that he was actually born in [Year 2].
·He claimed to have been born in the [Village 1] village, Ilam, Iran but in his Australian Citizenship by Conferral application, stated he was born in [Town 2], Iran, locations which are approximately 123 kilometres apart. In his Identity Interview, he stated he did not know where he was born, indicating that it may have been [Town 2] but was unable to recall any details about this place, or how long he lived there.
·He claimed initially that his father had died in 1995 but later claimed it was between 1995 and 2000. He claimed in his Australian Citizenship by Conferral application that his father was born in [Town 2], Iraq, which is a place that does not exist in Iraq.
·He provided the NSW RMS with a copy of an Iranian Driver Licence which recorded his identity as [Mr C], and records a shenasnameh [number], which appears to indicate he may be an Iranian citizen and not a stateless Faili Kurd as claimed. He has not provided this document to the Department for verification, which would attest to his true identity.
·The claims he has made regarding when he attended and finished school, his occupations and his age at the time, have varied significantly. These inconsistencies cast further doubt over the truthfulness of other claims he has made.
The delegate referred to the contradictory and inconsistent information the applicant has provided in relation to his identity, which makes it unreliable in establishing his identity, amd also noted that he had not provided any reliable documentation to support his claimed identity.
Applicant’s Response to the NOICC
The applicant provided the following documents in response to the NOICC through his migration agent on 11 April 2022, 12 April 2022 and 21 April 2022:
·Written submissions from his migration agent.
·Screenshot of Google Maps, showing [Town 2], Iraq.
·Letter dated 26 July 2016, addressed to the Department of Housing, written by [Ms F], Clinical [Psychologist].
·Discharge/Transfer summary documents related to the visa holder’s hospital admission to [a] Hospital on 12 June 2020.
·Letter dated 21 April 2022 written by Dr [G], from the [a] Medical Centre, [NSW].
·Copy of Temporary Residence card (number [number]) issued by the Islamic Republic of Iran, to the visa holder’s father, [Mr H, comprised of Given Name 3 and Family Name 2], and an English translation.
The applicant’s representative made the following submissions on behalf of the applicant:
·The visa holder maintains that he is a stateless Faili Kurd.
·The visa holder is unable to remember details of his past, as a result of mental health conditions.
·The majority of the inconsistencies with the information he has provided the Department is due to his mental health conditions.
·The visa holder has been diagnosed with major depression, anxiety and substance dependency. The visa holder receives a Disability Support Pension as a result of the severity of his mental health conditions.
·The visa holder is receiving treatment for his mental health conditions, which cause side effects including loss of memory, confusion, dizziness, fatigue, faintness, and confusion about identity, place and time.
·The visa holder has received counselling support from Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), which has not improved the visa holder’s mental health issues.
·The visa holder is uncertain about his place of birth and exact date of birth. The migration agent submits the visa holder provided approximate answers, as he did not know his exact date of birth, or the dates of birth of his parents.
·The visa holder provided extensive information regarding his province of birth and residence in Ilam, Iran as well as his education at [School 1], thereby indicating he had no intention to provide incorrect information or conceal details about his birth or life story.
·The migration agent submits “[Town 2]” exists in Iraq, as does “[Town 2]” in Iran.
·The migration agent submits that Faili Kurds who live in rural areas of Iran, do not know their exact year of birth. As such, the visa holder submits he is not confident about his parent’s dates of birth.
·The visa holder’s father was known as [Mr H], however the villagers added [Name J to his name Family Name 2 to turn it into the longer Family Name 1], as a sign of respect to his status as a senior member of the village.
·The Iranian driver licence that the visa holder held was forged and he apologises for providing the document. The visa holder submits friends told him that providing the document would assist him in obtaining a full Australian drivers licence.
·The visa holder submits that his social media accounts were created with the help of his friends, and that they gave approximate dates of birth for the visa holder.
·The visa holder’s frequent change of names are a result of his mental health problems, particularly due to the lack of concentration and poor memory. The migration agent submits that the visa holder did not benefit in any way from the changes made to his name.
·The visa holder’s father held an Iranian refugee card, which the visa holder was not aware of until his uncle recently provided him with a copy. A copy of the card has been provided with the submission. While the card records the visa holder’s nationality as Iraqi, it is not an indication that the visa holder’s father was an Iraqi citizen.
The delegate considered the applicant’s response and the information but was not satisfied as to the applicant’s identity and therefore concluded that the ground for cancellation was made out. The delegate considered whether to cancel the visa and determined, having regard to matters set out in Departmental policy, that the reasons for cancelling the visa outweigh the reasons not to and therefore determined that the visa be cancelled.
Evidence before the Tribunal – Tribunal hearing 18 May 2023
At the beginning of the hearing the Tribunal explained the existence of a Certificate issued under s375A of the Act relating to certain information on the Department file which prohibits disclosure of the information by the Tribunal on the basis of a public interest reason, if the Tribunal determines the certificate is valid. The Tribunal also explained that there were procedural fairness obligations on the Tribunal to put adverse information it intends to rely on to him for comment, regardless of the existence of the certificate.
The applicant made reference to a recent chest scan he had and pain medication he was on, but indicated he was okay to proceed with the hearing. He had no letter or documents about his health circumstances to give the Tribunal at this time.

The Tribunal asked the applicant if he had engaged a representative. He said he could not continue with his previous representative for financial reasons. He sought advice from Legal Aid and attended an appointment but they indicated they could provide advice only and not representation.
The Tribunal noted that this cancellation process appeared to have arisen following his application for citizenship made in October 2015, and the identity interview he had in November 2017. The applicant said he could not remember having this interview.
The applicant appeared to have no knowledge or recollection of receiving a natural justice letter inviting his comments dated 14 December 2021 or a decision on the citizenship application. He said he was not represented at that time and was experiencing many mental health problems and was not doing well. The Tribunal asked if he was seeing anyone in relation to these issues at this time. He said he was seeing several psychologists, including [Ms F].
The Tribunal noted that he was sent an email in April 2022 asking for his updated contact details which he provided. He confirmed he had been using the same email address for 4-5 years. He confirmed he received the NOICC following this and engaged a representative at that time. He recalls the representative asked for further time to provide a response.
The Tribunal confirmed the documents submitted by his representative in response to the NOICC, including the letter from psychologist [Ms F] dated 26 July 2016, the hospital discharge dated 24 June 2020 and letter from his GP Dr [G] dated 21 April 2022. The Tribunal noted that these documents provide limited information about his health circumstances and if he wishes to rely on his health conditions, he may wish to provide more evidence of this.
The Tribunal explained the issue under consideration is whether it can be satisfied of his identity, given the limited documentation and numerous inconsistencies and contradictions about his background circumstances arising in material before the Department. This was the context of the questions it will be asking him at in this hearing.
The applicant confirmed his current address, and that he has been at this address for the past 8 or so years. It is Department of Housing accommodation, and he lives alone. He was previously on Centrelink benefits but now has no income. He is reliant on voucher assistance from charities including Salvation Army and help from his friends.
The applicant provided the following information about his name. The name he provided to the Department upon arrival in Australia was [Mr C]. He denied that he used the name [Name J] and did not know where this name came from.
He applied for citizenship with the name [Mr A] because he changed his name. When asked why he changed his name he said it was because of his mental state, he wanted to forget the past. There was no specific incident or reason, he was seeing his psychologist at the time and she suggested it, and the name and so he changed it. The applicant then said that [Given Name 1] is [an Islamic name] and he had converted to Christianity at that time and wanted a Christian name. He started to attend church around 2013 and changed his name in 2015.
The Tribunal noted the document provided indicating that he changed his name again on 18 December 2019 to [Mr D]. He said he did this because he was tired of explaining why his name was [Mr A] to people. He chose this new name because there is an Iranian [occupation] by that name and people said he looked like him. The surname of [Mr D] was supposed to [a different spelling], that was a mistake made by the friend who helped him. He uses the name [Mr D] now in Australia. The Tribunal noted that various documents he has provided indicate different names. He said he provided evidence of the name change to [an organisation] but they continue to use [Mr A].
The Tribunal explained that the issue before it relates to his true identity and, in this context it notes the use of different names for him. The applicant said that if he knew that changing his name would cause all these problems he would not have done it. When asked why then when he changed his name again from [Mr A] he did not return to his original name [Mr C], he said he is a [Occupation 2] and [Given Name 2] is a famous [Occupation 2] and he wanted that name. He chose [Family Name 3] because [reasons deleted].
The Tribunal asked whether he continues to be a Christian. He said he does not go to church as often now. He used to go to a church in [Suburb 1] but it is now closed.
The Tribunal returned to the issue before it relates to his identity and noted that he had been interviewed by the Department about this at length in November 2017. The applicant said he cannot recall this interview. His memory is not good. The Tribunal noted that at that interview the officers discussed his biography and documentation and he gave a lot of very different information to what he has provided previously. All of this raises concerns for the Tribunal about his identity and therefore it will now ask him questions about his background and life story.
The Tribunal asked the applicant questions about his name at birth, his father and grandfather’s name and his mother’s name. He was born [Mr C], his father is [Mr H with Given Name 4 added as a middle name] and his grandfather is [Mr K, comprised of Given Name 4 and Family Name 2]. His mother is [name]. He has siblings, [names] who are all younger. He does not know his accurate date of birth, he uses the one given to him in Australia [Year 1]. He said that he has no other information to provide about this, if he did he would have provided it by now.
The Tribunal asked why he said he was born in [Year 2] when he came to Australia. He said he was scared when he arrived and he gave that year so that he would be considered under 18 years, but the Department did not accept that.
The applicant said he was born in [Town 2] Iran. He went to school to [a low grade] level only because he had no documents. The applicant said he cannot remember details. He can barely remember what he ate yesterday. The Tribunal noted he has previously given different information about his education history.
The Tribunal asked where his family lives. He said they live in [Village 2]. He is in regular contact with his mother, she is sick but still alive. She had cancer but obtained treatment. When asked how she was able to access this, he said his maternal uncle is well off and helps them financially. His father passed away from [cancer] when he was a young child. The Tribunal asked where he was born. He could not recall whether it was in [Town 2] or [Village 2]. He was in Tehran working in construction for some years before he came here. Before that he was in the village, working as a [Occupation 1] and as a labourer. He gave vague information when asked to describe his life in the village. He could not say what his brothers did for a living and was non specific about where they lived, whether in [Town 2] or [Village 2]. The applicant insisted that they were close by, [Village 2] was his father’s village and [Town 2] was his mother’s.
The Tribunal asked the applicant why he came to Australia. He referred to their life being hard and miserable and the problems they had as Faili Kurds with the government.
He acknowledged that he returned to Iran after he was granted protection, because his mother was ill. He obtained a visa to return. He only went to see his family and no one else was aware of his visit. He applied for the visa by saying he was born in Iraq.
The Tribunal asked if his parents had any documents in Iran. He said they did not, his father once had a document which he has provided. When asked how he obtained this document he said he called his family and his maternal uncle was able to find it and sent it to him. He doesn’t have the original. The Tribunal asked how it can be satisfied that this is a genuine document, given that it contradicts his evidence given previously that his parents were never registered and had no documents. The applicant said he was not aware previously that they had it.
The Tribunal asked the applicant about the drivers licence document obtained by the Department which indicates he has an Iranian Shenasnameh, which only Iranian citizens have. He said this is a fake document he had someone make for him. He doesn’t have the original as he lost it.
The Tribunal discussed with the applicant the information obtained by the Department regarding his [social media] accounts, which was discussed with him at the identity interview. He acknowledged that he has [social media] account. His friends helped him make it. It contains details which are not truthful, such as that he has a [degree].
The applicant insisted to the Tribunal that he has said everything he can about his life and the problems he endured. He cannot remember anything else.
The Tribunal indicated to the applicant that it would write to him following the hearing and put the specific details of information it has before it which is adverse to his case and invite him to provide comments or a response. He may wish to seek professional advice before responding. Following this, the Tribunal will invite him to a further hearing to discuss matters relating to the exercise of the discretion.
Post hearing invitation to comment and provide information
Following the hearing, on 25 May 2023, the Tribunal wrote to the applicant to invite his comment or response to information, setting out the particulars of information before the Tribunal, which subject to his response and the Tribunal’s consideration of matters relating to its discretion to cancel the visa, would be the reason or part of the reason to affirm the decision under review. The letter included particulars of information he provided in previous interviews with the Department relating to his refugee status assessment and protection visa applications and Independent Merits Review process; citizenship application and subsequent identity interview and information; as well as the Iranian Drivers Licence, which are inconsistent with and/or contradict the evidence of his father’s refugee card and evidence he provided at the hearing before the Tribunal. He was also invited to provide evidence to support his true identity and information addressing matters relevant to the discretion to cancel his visa.
On 13 and 14 July 2023 the Tribunal received the following documents:
·Scanned copy of an original Iranian Birth Certificate for [Mr B] and translation
·Scanned copy of an original National ID Card for [Mr B]and translation
·Physical Education Organisation of Iran Certificate [dated] 19 September 2003 awarding 2^nd place to [Mr B]
·[A sporting organisation] dated 25 November 2008 Ranking Certificate for [Mr B]
·Statutory Declaration by [Mr C] (aka [Mr D]) dated 13 July 2023
·Psychological Report of [Ms L] (formerly known as [Ms F]), Clinical Psychologist of 12 July 2023 and various supporting documents referred to in the report
·Disability Support Pension Letters of 16 June 2022 and 30 June 2022 regarding Disability Support Pension cancellation
·Scanned colour copies and English translations of the following Iranian documents:
i.[Sister] Iranian Birth Certificate and National ID Card;
ii.[Brother] Iranian Birth Certificate and National ID Card;
iii.[Mother] Iranian Birth Certificate;
iv.[Father] Death Certificate;
v.[Mr B] Iranian Motorcycle Licence; and
vi.Judgement of the General Criminal Court of [City 1] dated 02/09/2010.
The applicant’s Statutory Declaration provides detailed information about his background, family and life history, including admissions that he provided incorrect and inaccurate information previously to the Department and wishes to correct the records and now provides full and correct details. In summary, and relevantly, he declares:
·He was born in the village of [village] which is also known as [Village 2] in llam Province, Iran [distance] to the city of Illam on [date].
·His father's name was [Given Name 4] son of [Given Name 3]. He was called by both the names [from] time to time. He was a Faili Kurd. He was without citizenship or Iranian ID when the applicant was born. His year of birth was the Persian year [year] which equates the annual period [date] to [date]. His date of death was [date].
·His mother's name is [name]. She is a Faili Kurd. She was without citizenship or Iranian ID when he was born. She was born on [date].
·His father named him [Given Name 1]. He is the eldest of his siblings and has [younger siblings].
·His family name was [Family Name 1].
·His paternal uncle [purchased] Iranian Identity for the whole family including his father, mother, siblings and himself when he was a child of [age] or [age] years of age.
·The documents were not obtained through correct procedure but nonetheless were government issued documents and his family has been recognised as Iranian ever since.
·Once his parents were holding Shinas Nama, that provided a platform for he and his siblings to also obtain Iranian Shinas Nama.
·He completed Years [grade] to [grade] of primary education at [School 1] and commenced study at about [age] years of age and in about 1988.
·He is a Faili Kurd who is not stateless but holds Iranian citizenship.
·He sincerely apologises for the embellishment on his original protection visa application wherein he claimed incorrectly that he was stateless.
·Regarding his family history, he states his father was born in [Town 1], Iraq, and he never had Iraqi ID. His mother was born in the village known as [Village 1]. His father lived in Iran following his marriage.
·His father has cousins who have become Iraqi over the passage of time. They live in [Town 1], Iraq.
·His father [died] of [cancer] on [date] when he was in [a grade]. This is why he did not continue in school but sought employment.
·He did not have the opportunity to complete education. His literacy and numeracy are poor and he is not good with dates and mathematical calculation and has difficulty with abstract concepts. His understanding of documents is incomplete.
·His first work was general labourer in the construction industry in Illam and in Tehran. He did this work was for many years and ceased working as a construction labourer about 2 years prior to fleeing to Australia in or about 2008.He supported himself, his mother and siblings with his income. They did not own their own home paid rent.
·He also trained in [Sport 1] and participated in [Sport 1] competitions. After one year of studying [Sport 1] he started [training] at [a] gym [from] about 1996. He continued [until] 2010 when he fled to Australia.
·About two years after [training], his uncle brought be a [music instrument] from Tehran and he became interested in learning [that instrument] and music generally.
·He started composing and performing at [parties]. His music was a hobby and also a source of [income].
·He never attended [University 1] as raised in the Cancellation Decision of 25 May 2023.
·He fled Iran to Australia in search of asylum in or about April or May 2010 and arrived at Christmas Island on [date] June 2010.
·Regarding his names, when he first arrived in Australia at his arrival interview he advised Australian immigration authorities correctly that his name was [Mr B].
·After he arrived in Australia he dropped the [Name J] from his full family name [Family Name 1] and went by the name [Mr C].
·When he was experiencing mental health issues his psychologist suggested he take a brand-new name for a new beginning and he adopted the name [Mr A]. He believes this was in or around 2015 or 2016.
·As a result of suffering mental health issues he received a disability pension until it was cancelled as a result of the cancellation of his visa.
·He subsequently changed his name to [Mr D], and picked this name because [reasons deleted].
·He attended regularly at [Suburb 1] Church from 2013 to 2019 where he performed musically in the church. The church stopping stop meeting face to face due to the covid pandemic in 2020 and remains closed.
·Regarding his drivers licence, he has a genuine Iranian Motorcycle Driver licence which he obtained [in] 2004, and then obtained a motor vehicle licence in or about 2006. He did not provide his genuine Iranian licences to Australian immigration authorities because of the incorrect information he had provided that he was a stateless Faili Kurd rather than an Faili Kurd with Iranian citizenship.
·He subsequently obtained a fake Iranian Driver Licence in the name of [Mr C] after he arrived in Australia for the NSW Roads and Maritime Authority. He feared if he handed over the original licence there could be consequences with his visa since he had never disclosed his Iranian citizenship. He was desperate to obtain an Australian drivers licence for work because holding the jobs he had at that time required a current driver licence.
·Regarding the “white card”, prior to buying Iranian identity, his father did hold a white card also known as 'Special Identity Card for Foreign Citizens'. During the course of the protection visa processing Australian immigration authorities asked him to provide his father’s white card.
·My family searched for his father's genuine white card but as he had passed away [date] they were unable to locate it. He then arranged for someone to make a white card in the name of his father. That document is not a genuine document. He sincerely apologises for providing that wrong document.
·He acknowledges that while he purported to corroborate the history by providing this document, it does not corroborate as it is not genuine.
·His paternal uncle [and] paternal cousin [were] jailed by Iranian authorities. [The uncle] was released after 5 years imprisonment in or about 2011. He believes [cousin] remains in prison in 2021. They were both jailed for participation in demonstrations on different dates.
·He notes that the clinical notes relating to a mental health hospital admission [in] June 2020 wrongly refers to a brother jailed by Iranian authorities when it should have referred to his paternal cousin.
·His brother [was] arrested in 2022 following a protest in Iran but was released after a few days.
·Regarding his age, his smuggler advised him to advise immigration authorities that his age was much younger and that he was stateless. He was scared and listened to this advice and changed his date of birth from [date] to February [Year 2] and claimed that he was stateless to succeed in his asylum claim.
·Both of these details are false and he sincerely apologises.
·Because he claimed he was stateless he had to make additional supporting wrong claims to fit that narrative and could not raise his real claims that did not fit with the 'stateless' narrative.
·In about 2006 or 2007 at a wedding [party], the authorities tried to arrest him for playing folk music. He was forced to sign an Undertaking never to play Kurdish Persian music again. The authorities took his [equipment and instrument], but returned these items to him one week later.
·One month later he was caught for singing Kurdish Persian music at a party and was placed in jail for more than one week.
·About 3 months after being released from jail he was apprehended a third time for playing music and was interrogated and tortured by Etilaat. They asked me why he was playing music which is disallowed by the government.
·He was released and issued with a court summons. He sold his [instrument] and equipment and planned my escape to Australia. He ignored the court summons and kept a low profile, and then fled Iran.
·His matter was decided in his absence on 2 September 2010, after he came to Australia. He was sentenced to 3 years' imprisonment, confiscation of his musical instrument and equipment, a fine of 100,000,000 rials and social exclusion for 7 years.
·He failed to present his real persecution claims as a musician because he thought that presenting these true facts would or could disclose his fake claim of being stateless. He regrets not having been frank and fully candid with Australian immigration authorities from the outset and sincerely apologises for all the inaccuracies in biographical date which he presented and for inconvenience caused thereby.
·When he travelled back to Iran in 2012 he travelled on his travel document in the name [Mr C] and with an Iranian visa. The reason for his trip was because his mother was extremely ill. He travelled to his family home in the village in Illam where he could keep a low profile and avoid Iranian authorities and did not go anywhere else in Iran.
·The applicant states that if he were forcibly returned to Iran, his identity would be discovered by Iranian authorities and he would be significantly harmed as for reasons of his ethnicity, being a failed asylum seeker from a Western nation, his imputed political opinion because of his previous record of playing and singing Kurdish and Persian music and having been convicted and sentenced to 3 years imprisonment for crimes of playing and singing music.
·If returned to Iran he would need to seek employment and if not identified and caught at the airport he would be identified and caught when moving about in Iran in the course seeking work or working.
·He had significant mental health issues for which he received the disability pension prior to the visa cancellation. His disability makes him vulnerable and a risk to his economic survival if he is forcibly returned to Iran.
·He reiterates his request for the Tribunal to reverse the cancellation of his visa having now provided full and correct details to the best of his ability. He apologies for not having done this at the first opportunity and repeat that he was fearful of not obtaining an Australian protection visa and made the foolish choice of embellishing his case including stating that he was stateless, younger than his real age and in other respects.
·He asks that Australian authorities please understand his situation and forgive him for providing wrong information as part of his protection application.
Tribunal hearing 17 July 2023

At the hearing the applicant confirmed that he relies on the information contained in his Statutory Declaration dated 13 July 2023 and the supporting documents provided to the Tribunal. He explained that following the last hearing, he did not sleep at all. He has been suffering a great deal since his arrival in Australia 12 years ago. When he first arrived here people told him not to provide information about his identity because it will be provided to the Iranian authorities and he was so afraid of being sent back. Since that time, he has suffered much difficulty and feelings of guilt about this. Following the last hearing, he decided he would provide all of the correct information and genuine documents and this is what he has done.
The Tribunal confirmed with him, the information provided in his Statutory Declaration of his name, place and date of birth, parents and family composition is correct. He confirmed that it is. He handed up to the Tribunal his original Shenasnameh (birth certificate), National ID card and motorcycle licence documents. These documents were sent by mail to him two weeks ago by his brother. The Tribunal noted the different date of birth recorded in the translation of the National ID document. The representative pointed out this was a translation error made by the Iranian official translator. The Tribunal confirmed with the interpreter the dates recorded on the original documents. The interpreter indicated all three original documents record a date of birth of [date] which corresponds to [date].
The Tribunal asked the applicant if he also held an Iranian passport in his own name. He confirmed that he did. He travelled on his own Iranian passport, and exited Tehran using it. He subsequently destroyed that document as advised by the smuggler. He obtained the passport around 2008 or 2009 and had not used it prior to this journey.
The Tribunal confirmed with the applicant whether the psychologist who provided the report, [Ms L] was the same person he referred to earlier, [Ms F]. He confirmed this was the same person, she also changed her name. The Tribunal indicated that it may be helpful if evidence of the change of name is provided.
The Tribunal noted that he also provided documents relating to his family members, including his siblings birth certificates and National ID cards and it noted the different format of their birth certificates. He said they obtained the new format documents but because he was here, his is the original format.
The Tribunal asked the applicant if he knew anything about the circumstances of his father coming to Iran from Iraq upon marriage to his mother. He said he does not know how his parents came to know each other or why his father came to Iran from Iraq. They are not related to one another. He understands in those days there was a lot of movement between Iran and Iraq among his community. The Tribunal notes his claim in the Statutory Declaration that his mother, although born in Iran, did not have documents until her relatives purchased them, however country information before the Tribunal indicates that Feyli Kurds who have Iranian ancestry are eligible to obtain citizenship.[3] The applicant said he was always told by his mother and other relatives that their documents were obtained by paying money. He confirmed that his father had a Shenasnameh, which is recorded on his birth certificate.
[3] “Feyli Kurds – obtaining identity travel documents”, compiled by the Department of Immigration and Border Protection Tehran, 17 September 2015 (homeaffairs.gov.au)_
The Tribunal asked the applicant about his drivers licence and why, if he had these documents, he paid for a false one to provide the Australian authorities. He said he believed that he needed the name and date of birth on the drivers licence to correspond to what he had told the immigration authorities here, so he paid someone to produce a drivers licence with these details, as his own recorded [Family Name 1] as his family name and [date] as his date of birth.
The Tribunal explained to the applicant, on the basis of the documentation and information now provided, it may be able to be satisfied as to his identity. If so, then the ground of cancellation is not made out and that is the end of the matter. However, given the admissions he has made in the course of this review, it may be open to the Department to consider whether to cancel the visa again on other grounds available.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1AA). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.
According to the Macquarie Dictionary the ordinary meaning of identity includes “the state or fact of remaining the same one, as under varying aspects or conditions”, “the condition of being oneself or itself, and not another”, “condition, character, or distinguishing features of person” and “official information about yourself, as passports, bank account details”.[4]
[4]
The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 states that s 116(1AA) may be used 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; where the Minister is prevented from being satisfied as to a person’s true identity because there is contradictory or inconsistent information or documents relating to the person’s identity; and where the Minister is not satisfied as to the visa holder’s identity for any other reason.[5]
[5] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, page 24.
According to the Departmental guidelines, decision-makers considering whether to exercise the discretion in s 116(1AA) of the Act should have regard to all relevant matters including the visa holder’s individual circumstances and the fact that some applicants will have legitimate difficulties in obtaining evidence of their identity.[6] Section 116(1AA) will not apply if the visa holder has used a fraudulent identity to obtain a visa but their true identity is later confirmed or in response to a notice under s 119, the visa holder satisfies the delegate as to their true identity. 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.[7]
[6] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.
[7] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.
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.[8]
[8] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Bogus Documents – Detection, Seizure and Retention – Identity – What is Identity
In the present case the visa was cancelled on this ground (s116(1AA) on the basis of various alleged inconsistencies in information regarding the applicant’s identity that had come to light before the Department.
Before the Department, the applicant maintained that he was an undocumented Faili Kurd, born in Iran to Faili Kurd parents who were also not registered and held no documents. The information provided to the Department regarding his basic biographical details including date and year of birth, place of birth and family composition contained numerous discrepancies and inconsistencies. He initially provided no supporting documents and only in the course of responding to the NOICC, provided a ‘refugee card’ document for his father which appeared to contradict his earlier claim that his parents were unregistered. An Iranian drivers licence document obtained by the Department contained information of a birth registration number which contradicted his claim to not be an Iranian citizen. For these reasons the delegate was not satisfied as to his identity and concluded that the ground for cancellation was made out. The delegate decided to exercise the discretion to cancel the visa after considering matters set out in Departmental policy.
Before the Tribunal, albeit after the first hearing, the applicant has conceded that he previously provided incorrect information about his background and circumstances and provided, for the first time, numerous Iranian documents relating to himself and his immediate family members to support his identity.
On the basis of the new information provided, the Tribunal is satisfied that the applicant is [Mr C] (aka [Mr B], aka [Mr A], aka [Mr D]) born [date] (Persian year [year]). It finds that he was born in [Village 2], Ilam, Iran and he is an Iranian citizen. On the basis of the evidence, including his oral evidence before the Tribunal and Statutory Declaration of 13 July 2023, it accepts he is of Faili Kurd ethnicity.
The applicant has maintained consistently since his arrival in Australia that he is a Faili Kurd and both his parents were born Faili Kurds. He initially claimed that neither he nor his parents had any documents in Iran and his claims for protection were on the basis of being an undocumented, unregistered Faili Kurd in Iran.
Before the Tribunal, however the applicant has conceded that this information is incorrect. He has now provided evidence of his Iranian documents, including a Shenasnameh or birth certificate and National ID card confirming his name, place and date of birth and parents. He also provided a motorcycle licence obtained in Iran which states his name, date of birth and Shenasnameh number. The Tribunal has sighted the originals of these documents. Further, in support of his identity, the applicant has provided scanned copies and translations of his father’s death certificate, his mother’s Shenasnameh birth certificate, and his siblings’ shenasnamehs and national ID cards. All of these documents provide consistent information about the family composition and corroborate the applicant’s true identity.
The applicant explained in his Statutory Declaration that he had a genuine Iranian drivers’ licence obtained in or around 2006, in addition to the motorcycle licence obtained in 2004 sighted by the Tribunal. However, the drivers’ licence that he provided to the Australian motor vehicle registry to obtain a local licence was not a genuine document. He had this document created for him so that the family name and date of birth corresponded to the identity he was using here. The Tribunal observes that the details of this document contained in Department files is consistent with the applicant’s account, and it accepts given the documentation now before it, that this document is not genuine.
The Tribunal also observed that the translation of the National ID card provided indicates a date of birth different to that on his birth certificate. At hearing, the interpreter confirmed that this was a translation error and the original ID document provides a consistent date of birth as contained in the original birth certificate.
The Tribunal noted that the Shenasnameh provided by the applicant in respect of himself is in a different format to that of his siblings. The applicant’s explanation that his siblings’ obtained the new format birth certificate while he was in Australia is consistent with country information before it regarding electronic birth certificates and national smart cards introduced in Iran in the period since he has been in Australia.[9] The version of his own original Shenasnameh appears to be consistent with the features as described in independent information before the Tribunal.[10]
[9] Canada: Immigration and Refugee Board of Canada, Iran: The National Identity Card, including requirements and procedures to obtain the card within the country as well as from abroad; whether the card has replaced the shenasnameh; whether fraudulent cards exist (2012-September 2013) Responses to Information Requests - Immigration and Refugee Board of Canada (irb.gc.ca);see also Landinfo Country of Origin Information Centre Report, Iran: Passports, ID and civil status documents (landinfo.no), 5 January 2021
[10] Canada: Immigration and Refugee Board of Canada, Iran: The "shenasnameh," including application and reissuance procedure, physical characteristics, security features, period of validity, meaning of inscriptions, significance of identification number and difference between the shenasnameh and the national identification card (2006), 5 June 2006, IRN101296.E, available at: 17 July 2023]
On the evidence now before it, including the Shenasnameh, National ID card and Iranian driver’s licence submitted by the applicant, together with corroborating evidence of identity documents of his parents and siblings and the [sporting] certifications issued to him, the Tribunal is satisfied that the applicant’s true identity is [Mr C], also known as [Mr B], also known in Australia as [Mr A] and, more recently, [Mr D], born [date] in [Village 2], Ilam, Iran.
This identity is confirmed by the Iranian national documents provided to the Tribunal. He has now provided a detailed life story including family composition and background which supports, and is consistent with, the documents provided. The applicant’s family background is also generally consistent with country information before the Tribunal relating to Faili Kurds in the border area between Iraq and Iran which corresponds to the area where the applicant is from. The applicant maintains he and his family are Faili Kurds who hold Iranian identity documents, and this is also consistent with the independent information before the Tribunal.[11]
[11] See n 3 above.
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.
The Tribunal notes the applicant has provided to the Department, over many years since his arrival, inconsistent and incorrect evidence about his background including his age, place and date of birth and family composition. Before the Tribunal he has acknowledged and apologised for this misinformation. In this context the Tribunal notes the content of the Report of his long-term treating psychologist, [Ms L], and numerous supporting letters referred to in the report, which provide relevant background context to the applicant’s psychological and mental health in this period. While it may be open on the evidence arising in this review for consideration of other grounds to cancel the applicant’s visa, the Tribunal observes that the circumstances of his psychological and mental health and the substantial length of time he has now been in Australia may be relevant factors to take into account in any such consideration. The Tribunal will forward these documents to the Department on return of the matter.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Meena Sripathy
Member

[2023] AATA 4864

18 July 2023

Key Legal Topics

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Immigration

Administrative Law

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