2300230 (Refugee)

[2023] AATA 4582

2300230 (Refugee) [2023] AATA 4582 (9 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Farnam Razzaghipour (MARN: 9789359)

CASE NUMBER:  2300230

COUNTRY OF REFERENCE:                   Iran

MEMBER:Meena Sripathy

DATE:9 November 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 866 (Protection) visa.

Statement made on 09 November 2023 at 4:10pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – satisfied of the visa holder’s identity – Iranian Citizenship – Faili Kurd – refugee Green and White cards issued in Iran – return visits to Iran – Iranian passports – unlawful relationship – family violence – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Australian Citizenship Act 2007, s 21
Migration Amendment (Character and General Visa Cancellation) Bill 2014
Migration Act 1958, s 116
Migration Regulations 1994

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 6 January 2023 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) on the basis that the delegate was not satisfied of the visa holder’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 18 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CLAIMS AND EVIDENCE

   Notice of Intention to Consider Cancellation

6. On 6 December 2022 a Notice of Intention to Consider Cancellation under s116 of the Migration Act was sent to the applicant. The NOICC set out the background of the applicant’s immigration history, including the details as to her name, date of birth, family composition, citizenship status and documentation held provided in various forms and her protection application, and information that had come to the Department’s attention subsequent to the grant of the Protection visa that raised concerns about her identity and citizenship status.

7. The following relevant information was set out in the NOICC. The applicant arrived in Australia [in] July 2010 by boat without a visa to Christmas Island with her now former husband [Mr A] and their two dependent sons, [Son 1 and Son 2]. On that same date she completed a Biodata Form providing details of her name, [the applicant’s name], aged [age], also known as [Alias A]. She claimed to be a stateless Faili Kurd and had no citizenship pf any country. She provided details of her education history, marriage, and family composition including parents and siblings residing in Iran, a brother residing in Sydney and another son [Son 3] – residing in Sydney.

8. On 17 August 2010 the applicant participated in an Entry Interview and provided information that she left Iran because she is an undocumented Kurdish and held no identity documents.

9. On 27 August 2010 the applicant and her husband made a request for a Refugee Status Assessment (RSA) and on 18 January 2011, the RSA delegate found she and her former husband were persons to whom Australia has protection obligations.

10. Following this, on 23 June 2011 the applicant lodged an application for a Protection visa, declaring her identity as [the applicant’s name] (DOB [DOB 1]) and that she had previously also been known as Alias A]. Her former husband and children lodged a separate Protection visa application.  The applicant relied on a Statutory Declaration dated 27 August 2011 setting out her claims for protection, including that she was born in Baghdad Iraq, whose family left Iraq 30 years ago for Iran, and is a stateless Faili Kurd with no identity or citizenship documents.

11. Based on her claims of being a stateless Faili Kurd, in addition to meeting all other criteria, the applicant was granted the Protection visa on 29 June 2011.

    Subsequent information after the grant of the Protection visa

12. On 01 July 2015, the applicant lodged an application for Australian Citizenship by Conferral under the identity of [the applicant’s name] (DOB [DOB 1]) on the basis of a claim to have physical or mental incapacity as per paragraph 21(3)(d) of the Australian Citizenship Act 2007. This application was refused on the basis of insufficient evidence on 23 March 2018.

13. On 30 April 2018, she lodged a new application for Australian Citizenship by Conferral under the identity of [the applicant’s name] (DOB [DOB 1]).  In the context of this application, she was requested on 07 February 2020 to provide evidence of her identity. In a Statutory Declaration in response dated 11 February 2020, she stated she had no identity documents, repeating her claims made earlier that she left Iraq at [age] and is stateless without identity documents.

14. On 30 April 2020 the citizenship delegate invited the applicant to comment on adverse information pertaining to her claims to be a stateless Faili Kurd. Particulars of adverse information were put to her including concerns about her claims to have never held a Green or White card issued to refugees in Iran given she had lived there for [number] years, information the Department had that she has made financial remittances to members of her family in Iran which would have required them to have some form of documentation, and information the Department has that suggests she has paternal relatives in Australia who are Iranian citizens, which by virtue of Iranian Citizenship laws, would indicate the visa holder is also an Iranian citizen.

15. On 13 May 2020, the applicant responded by providing a Statutory Declaration, stating she is now married with [more] children, three of whom are permanent residents and [number] are Australian citizens; reiterating her previous claims and that she is a stateless Faili Kurd with no documents and has no paternal siblings in Australia.

16. On 20 November 2020, the Citizenship delegate refused her Australian Citizenship by Conferral Application as they were not satisfied by the visa holder’s claimed identity or that she is of good character. The applicant requested a review of the refusal to the AAT but later withdrew her request on 10 March 2021.

    Possible family members

17. Departmental records indicate that [Ms B] arrived along with her husband [Mr B] on Christmas Island [in] July 2010, on the same vessel as the applicant, her former husband and two sons. [Ms B] referred to the applicant as her ‘mother’s cousin’ and recorded that her uncle is [Uncle A]. Information before the Department indicates that [Ms B] and [Mr B] are documented Iranian citizens.

18. [Uncle A] also arrived on the same vessel as the applicant and her former husband. Departmental records indicate that [Uncle A] declared his wife as the applicant’s sister, [Ms C] and his brother-in-law as [Mr C], residing in Sydney. This information suggests the applicant is related to [Uncle A]; and that applicant failed to declare these familial links on her arrival on Christmas Island.

    Travel since protection grant

19. Departmental records indicate that the applicant returned to Iran [in] November 2011, five months following the grant of her Protection visa. She further travelled to Iran in March 2013 and March 2014. This information raises concerns regarding her claimed identity as a stateless Faili Kurd as well as her claimed fear of persecution in Iran for using fraudulent documents to depart.

    Documents

20. The applicant claimed in her protection application to have experienced discrimination and persecution on the basis of her stateless Faili Kurd status. Her [Son 3], during his Independent Merits Review (IMR) in association with his RSA process, claimed that at the time he left Iran in 2009, she and her former husband both held either a Green or White Card.

    Financial information

21. beneficiaries recorded as Information before the Department indicates the applicant made remittance transactions to [Ms D], [Mr E], [Ms C variant], who appear to be her mother, her brother and her sister. Further, she appears to have remitted money to someone with the same name as her, [variant of the applicant’s name]. These transactions have all been labelled ‘family support’. This suggests that the applicant’s family members hold (or have previously held) some form of documentation to be able to claim the funds.

22. Based on the information set out, the NOICC stated that it appears the visa holder has provided inconsistent and contradictory information regarding her identity over the course of her interactions with the Department, which does not allow a definitive determination to be made as to the visa holder’s identity.

    Applicant’s response to the NOICC

23. The applicant provided a response to the NOICC through her migration agent on 9 December 2022 which consisted of a Statutory Declaration of that same date providing the following information:

    ·She does not have, and has never had, any identity documents issued to her by the Iranian or Iraqi governments.

    ·She has no contact with her former husband or their three children from their marriage.

    ·She was born in Iraq and brought to Iran by her parents when she was a young child.

    ·Her parents never spoke Arabic to her, as her native tongue is Faili Kurdish dialect.

    ·She provided the same information to the Department when she was interviewed in respect of her Protection visa application. The visa holder maintains she is a stateless person, without documents.

    ·She also maintains she resided in Iran for approximately [number] years without identity documents.

    ·When she departed Iran in 2010, the visa holder (and her former husband and children) used an Iranian passport, although she stated, “I cannot comment as to how our names and passports were cleared at the immigration desk at Imam Khomeini International Airport, I know that we had no problems at the time of our departure in 2010”.

    ·She submits her former husband obtained the Iranian passports by paying bribes.

    ·She accepts that she has some relatives in Australia who may have managed to obtain Iranian citizenship.

    ·She does not know what any person who knows her may have said about her or her family in Iran, however everything she has said about her identity and family composition is true and correct to the best of her knowledge.

    ·She stated, “I now know that some Feili Kurds have been able to obtain Iranian citizenship and others have not. I did not take any steps to apply for Iranian citizenship because I did not know how I should do this and even if I did, I would have been too scared to present myself to the authorities. Moreover, I would not have had the financial capacity to do this”.

    ·In respect of the financial remittances sent to her family, she submits the money transfer agency asked her to provide her photo ID (inferring her Australian documents) as well as the name of the recipient. She stated that she told the agency her family had no identity documents and that she was advised, as long as the person who is receiving the money attends the agency’s partner shop in Iran, stated the name of the recipient and showed a photo of the visa holder’s licence using their smart phone, the money would be released. She submits the agency send an electronic copy of her photo ID to be sent to Iran, while she sent a photo of her driver’s licence to her nominated recipient in Iran. She submits she does not know why there is a name similar to hers on the transactions, as she has nominated her mother and sister as recipients.

    ·Regarding her return travel to Iran, the visa holder submits she applied for the relevant visas from the Iranian Embassy in Canberra; and that if she was an Iranian citizen, the Embassy would not have given her a visa to enter Iran.

    ·She submits she was not scared to visit her family in Iran for short periods, but that she feared being forced to live in Iran again and be faced with the problems that made her risk her life by leaving in 2010.

    ·She submits she fears being harmed by the Iranian authorities if they discovered she used a non-genuine Iranian passport to depart in 2010.

24. The delegate considered the applicant’s response and the information before them, and concluded that that they were unsatisfied as to her identity and therefore was satisfied there were grounds for cancellation under s116(1AA). 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 decided the visa be cancelled in a decision made on 6 January 2023.

    Evidence before the Tribunal

25. On 18 August 2023 the Tribunal received a Statutory Declaration dated 17 August 2023 and supporting documents from the applicant.  In summary the applicant declares her name and true date of birth as recorded on her Iranian birth certificate ([DOB 2]).  She was born in Tehran, Iran and she is an Iranian citizen. She encloses her Iranian birth certificate and National ID card.  She does not have the originals of these documents as [Partner A] took them with him to Iran without her knowledge. The applicant provides details of how she obtained these documents.  Her late father obtained them for her when she was a young teenager (aged [range]) so that she could marry her former husband who was a distant relative.

26. She married [Mr A variant] when she was [age] years old, forced by her father.  She had three sons with him [Son 3], [Son 1 and Son 2], born when she was [ages] years respectively. She entered Australia with her former husband and two younger sons, the older son was already here. She has had no contact with her former husband or her sons since she was released from detention. She is Feili Kurdish ethnicity and speaks the ethnic dialect fluently. She married [Partner A variant] in 2012 and [number] children were born of this marriage, [names and years of birth] who are Australian citizens.

27. [Partner A variant] left her and her [children] in March 2023 and now lives with his new partner in Iran. He has posted photos on Instagram with his new partner.

28. The applicant declares, regretfully she has provided incorrect information to the Department and Tribunal due to the fear and threat of harm because of circumstances she outlines. When she arrived in Australia with her ex husband and sons the smuggler told them if they say they are Iranian citizens the Australian government will send them back to Iran. She had to maintain the lie for all these years fearing dire consequences. She started her relationship with [Partner A variant] shortly after separating form her ex husband. She had a lot of problems with [Partner A] over the years. He regularly beat her and their children and forced himself on her. She wanted to tell the truth about her identity but he threatened to divorce her and take her [children]. She is extremely remorseful for maintaining a false identity over 13 years. Now she does not face any threat to her safety she has decided to declare her true identity. She reported [Partner A’s] assaults to the police 3 or 4 times, the last time was in February 2023, but when the police arrived she said there was no problem out of fear for her children and herself. Prior to that in August 2022, she obtained temporary housing when he kicked them out.

29. Since [Partner A] has gone to Iran he has called her numerous times and told her to return to Iran. She cannot return to Iran because her marriage to him would not be recognised by Sharia law and she could be subject to the penalty of stoning, and her [children] with [Partner A variant] would be considered illegitimate. If her visa is cancelled it ill have devasting consequences for her. She will have to take her children to Iran and their future will be dark and unpredictable. She will be charged for being in an unlawful relationship with [Partner A] and mother to illegitimate children. This carries a death penalty.  She asks the Tribunal to reinstate her visa or she will have a fate worse than death.

30. The applicant attached the following documents to her Statutory Declaration:

    ·Letters dated 22 June 2023 and 7 July 2023 from [a] Clinical Psychologist who has seen the applicant from 2011-2016, in 2017 and 2022 and most recently in June 2023 supporting her need for Centrelink support due to serious financial hardship.

    ·Letter dated 20 July 2023 from [a doctor] supporting the applicant’s application for housing.

    ·Translations and copies of applicant’s Birth Certificate and National Iranian Identification Card.

    Tribunal hearing 18 October 2023

31. At the hearing the applicant provided the following evidence.  She lives alone with her children, aged [specified ages], at an address in [Sydney], and receives income support from Centrelink.

32. The applicant confirmed her migration, travel history and family composition as follows.  She arrived in Australia in July 2010 with her previous husband and two children. She separated from her previous husband in 2012 and has no contact with any of them since then. Apart from them, she has a cousin named [Uncle A] here, who travelled on the same boat with them and another son, [Son 3] who came to Australia before them.  She is not in contact with either of them either.

33. Outside Australia, she has a mother, [and specified siblings], all living in Iran.  She is in contact with her mother and sisters, but not regularly. The applicant confirmed that her sister [Ms C] is married to [Uncle A] but stated that [Ms C] has no contact with [Uncle A] since he came to Australia.

34. She confirmed that she travelled to Iran three times since she was granted her protection visa in July 2011. She travelled on her Australian travel documents.  She does not have copies of these travel documents because they are taken from her each time she renews it. The Tribunal asked if she has an Iranian passport. She confirmed she travelled on an Iranian passport in her own name when she came to Australia but the smuggler took it from her and destroyed it.  Since then, she applied for another one when she was with her second husband [Partner A], in around 2013 or 2014.  He took her to Canberra and they obtained it.  She used her Shenasnameh and ID documents to apply for it.  She does not know why [Partner A] wanted her to get an Iranian passport. She never used this document.  She does not have it in her possession because [Partner A] took all her identification documents. 

35. The Tribunal explained that this visa was cancelled on the basis that the decision maker was not satisfied as to her identity.  The NOICC set out the various information she has provided to the Department since her arrival and other information that is before the Department which suggested that she  has provided inconsistent and contradictory information regarding her identity which prevents a definitive determination as to her identity. It noted that until recently she has maintained her original claims in her protection visa that she is a Faili Kurd, born in Iraq and holds no identity or citizenship documents for any country.  On 18 August 2023 she provided the Tribunal a Statutory Declaration from herself stating that she is born in Tehran and is an Iranian citizen and provided copies and translations of her Iranian birth certificate (Shenasnameh) and ID card. 

1. The Tribunal asked her, in light of all of the contradictory information she has repeatedly provided, why should it accept this new information is correct?  In response the applicant stated that she is now providing the truthful information. She has given an oath to tell the truth and wants to come clean now because she can as the threat against her from her husband is no longer present because [Partner A] has gone to Iran and left her.  She provided the following information about her background.

2. She was born in Tehran, Iran.  She believes her father is a Faili Kurd and may have been born in Iraq but she does not know for sure.  She is not sure if her mother was born in Iran.  They did not tell her about their past.  She knows she was born in Iran as were all her siblings who came after her (all but [Ms C]).  She did not have proper schooling. She believes her father arranged for her ID documents when she was around [age] years old in order for her to marry her first husband [Mr A], who was a paternal relative. The Tribunal noted the shenasnameh indicates it was issued in [year]. She said she does not know, her understanding was that it was obtained by her father for the purpose of her marriage. Her marriage was registered in Iran. She believes her husband had an Iranian birth certificate but does not know when or how he obtained it.  Her children from this marriage have Iranian birth certificates. She travelled to Australia on her own Iranian passport.

3. The Tribunal asked why she has decided to provide this information now. She said up until now she was threatened by her husband [Partner A] not to reveal it.  His situation was similar to hers and he was afraid if she revealed the information it may have implications for him or his relatives. She met [Partner A] at Christmas Island, and they got together after she separated from her first husband around 2012. They married in Australia but it would not be recognised in Iran because her divorce from her first husband is not recognised in Iran. She would be in danger if returned to Iran as she would be considered to have committed adultery with [Partner A] and her children would be considered illegitimate. She could be punished by stoning.

4. The applicant said [Partner A] was abusive towards her for a long time. She tried to call the police many times but he threatened her and their children. Then in March he left. He told her he was going to [another country] for an operation. Later she saw pictures on social media of him in Iran with another woman. He continues to make calls to her threatening her.

5. The applicant said if she is returned to Iran her life is in danger from [Partner A] and because of her relationship with him not being recognised.  She repeated that she feels remorse for not providing the correct information about her Iranian citizenship earlier but she was living under threats of harm to her and her children.  

6. The Tribunal explained to the applicant, that if it is satisfied as to her identity on the documentation and information now provided, then the ground of cancellation is not made out and that is the end of the matter.  However, given the admissions she 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. If this action is taken she would have an opportunity to provide information about why her visa should not be cancelled.  

7. Following the hearing the Tribunal invited the applicant to provide any further evidence to support her Iranian citizenship and identity, such as Iranian identity documents relating to family members in Iran, a death certificate for her father, a family register or any other evidence.

8. In response, the Tribunal received the following documents through her representative:  a translation and copy of an invoice for funeral services relating to her [named father’s] death [in] January 2019 from [a named cemetery] and a translation and copy of the applicant’s Iranian Drivers Licence stating her name and date of birth. The representative explained that the applicant’s family in Iran do not wish to cooperate with her or send any identification documents to her, and this has caused the relationship between the applicant and her family in Iran to cease. She has only managed to obtain the attached document relating to her father’s death as well as a driver’s licence (issued in 2004 and expired in 2014).

   CONSIDERATION AND FINDNGS

9. 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, this means 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?

10. A visa may be cancelled under s 116(1AA) if the Minister is not satisfied as to the visa holder’s identity.

11. 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”.[1]

    [1]

12. 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.[2]

    [2] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, page 24.

13. 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.[3] 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.[4]

    [3] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.

    [4] POLICY – MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, s134B and s140) – s116(1AA) - Not satisfied as to identity.

14. 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.[5]

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

15. 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.

16. Before the Department, the applicant maintained that she was an undocumented Feili Kurd, born in Iraq to Feili Kurd parents and came to Iran when she was very young.  She claims she and her family were unregistered and held no documents.   The applicant maintained these claims throughout her first protection visa application and continued to assert them in her applications for citizenship lodged after that.

17. Before the Tribunal, the applicant provided a Statutory Declaration and documents to the Tribunal conceding that she previously provided incorrect information about her place and date of birth and citizenship status and provided, for the first time, copies of her Iranian birth certificate (Shenasnameh) and National ID card. She gave oral evidence to the Tribunal that she travelled to Australia using an Iranian passport in her own name, which was destroyed by the smuggler, and that she applied for another Iranian passport since being in Australia. She explained she does not have the Iranian passport or the original shenasnameh or ID document in her possession as her former partner, [Partner A], took them with him and he is now in Iran.  She was able to locate the copies of the latter documents, which she has provided to the Tribunal. 

18. At hearing the applicant’s representative indicated a willingness for the applicant to try to apply for a new Iranian passport using the documents she has in her possession, but this could take some months.  The Tribunal considered this but decided that it is not necessary.

19. Following the hearing, two further documents in support of her claims were provided, a receipt for her father’s funeral and her Iranian drivers licence, indicating the shenasnameh number. The Tribunal notes that the drivers licence indicates under ‘place of birth’ and ‘nationality’ as ‘not stated’.  It refers to her birth certificate no. [specified] and father’s name: [specified]. 

20. For the following reasons, the Tribunal is satisfied the applicant’s identity is as stated on the copy of the Iranian birth certificate and National ID documents provided.  It finds that her name is [the applicant’s name], born in Tehran, Iran on [DOB 2] ([date] Persian calendar) and she is an Iranian citizen.  

21. The applicant declared in her Statutory Declaration of 17 August 2023 and gave oral evidence to the Tribunal that her family are of Feili Kurd background and she speaks the dialect fluently.  She told the Tribunal she had few details about her parents’ background, but believed her father was born in Iraq and mother was born in Iran. She said her first husband was a paternal relative and had an Iranian birth certificate. The Tribunal notes country information before it indicates the Feili Kurds lived in the border area between Iran and Iraq  and there were Feili Kurd refugees from Iraq that settled in Tehran, and that Feili Kurd refugees who present documentary evidence of their Iranian ancestry are able to obtain Iranian citizenship. Those who can prove Iranian paternity through their father, grandfather, great grandfather, uncle, etc are eligible to obtain a Shenasnameh, National ID card and Iranian passport.[6]  On the basis of the applicant’s Statutory Declaration and oral evidence, and this independent information the Tribunal accepts the applicant is an Iranian citizen of Feili Kurd ethnicity.  

    [6] “Feyli Kurds – obtaining identity travel documents”, compiled by the Department of Immigration and Border Protection Tehran, 17 September 2015 (homeaffairs.gov.au)_

22. The Tribunal has considered the evidence and documents now before it, and relevant country information. The copy of the National ID card provided indicates that it was valid to 2014. This would suggest (on the basis of country information about this documentation) that it was issued 7 years prior to that and is likely to be an old version of the kart-e-melli which has no biometric data.  Independent information before the Tribunal indicates that electronic smart cards with computer chips storing biometric information commenced from 2012. [7] It is not clear from the copy of the document provided what the colour or version of the Shenasnameh provided by the applicant is, although it appears to be consistent with the features of the old (brown) kind described in independent information before the Tribunal. [8]  There does not appear to be any requirement to replace old versions with the new versions, and the old Shenasnameh does not have an expiry date.[9]

    [7] 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). Ottawa: IRB Canada. Available at see also  Landinfo Report Iran: Passports, ID and civil status documents, 5 January 2021, p25.

    [8] 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: 9 November 2023] ; Landinfo Report Iran: Passports, ID and civil status documents, 5 January 2021.

    [9] Canada: Immigration and Refugee Board of Canada, Iran: The new format of the shenasnameh (birth certificate), including physical characteristics, security features, and period of validity; application procedures and requirements; whether citizens are required to replace their shenasnameh with the newer version (2012-January 2015), 16 January 2015, IRN105037.E, available at: 9 November 2023]

23. Notwithstanding that the Tribunal has not sighted the original documents and there is no other corroborating evidence from family members to support her claimed Iranian identity, the Tribunal is satisfied on the evidence of the translations and copies of the Shenasnameh, and National ID card submitted by the applicant, that her true identity is as stated in these documents: [the applicant’s name], born [DOB 2] in Tehran, Iran.  This identity is supported by these Iranian national documents now provided to the Tribunal.  Her life story including family composition and background also 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 Feili Kurds in the border area between Iraq and Iran.  The applicant maintains she and her family are Feili Kurds who hold Iranian identity documents, and this is also consistent with the independent information before the Tribunal.

24. For these reasons, the Tribunal is satisfied as to the applicant’s identity. 

25. Therefore it finds that the ground for cancellation in s 116(1AA) is not made out. It follows that the power to cancel the applicant’s visa does not arise.

26. The Tribunal notes the applicant has provided to the Department, over many years since her arrival, inconsistent and incorrect evidence about her background and claims including her place and date of birth and citizenship. Before the Tribunal she has acknowledged, apologised and expressed remorse for this misinformation and explained the context of her circumstances living under duress and threats from a former partner. She also provided information about her fears of harm if forced to return to Iran and that she has [young] Australian citizen children. Letters from her treating psychologist and general practitioner were submitted in support.  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 her Australian citizen children, background of domestic violence, her psychological and mental health, and the substantial length of time she 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

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

    Meena Sripathy
    Member