2305522 (Refugee) - [2023] AATA 4814

2305522 (Refugee) [2023] AATA 4814 (14 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Mahmood Alkafaji
CASE NUMBER:  2305522
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Jane Marquard
DATE:14 December 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 14 December 2023 at 11:13am
CATCHWORDS
REFUGEE – cancellation – Subclass 866 (Protection) visa – Stateless – inconsistent information regarding identity documentation – family are stateless Faili Kurds – Tribunal is not satisfied that the ground specified in the notice is made out – cancellation power does not arise for consideration – decision under review set aside

LEGISLATION
Migration Act 1958, ss 46A, 116, 119, 198, 438
Migration Regulations 1994, r 2.55, Schedule 2
CASES
MZZJO v MIBP [2014] FCAFC 80
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 dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 March 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).
BACKGROUND TO THIS APPLICATION FOR REVIEW
The applicant was born in Iraq but lived in Iran with his former wife, [Ms A] prior to arrival in Australia on [date] June 2010. As he arrived without a visa on a boat at Christmas Island, an excised territory, he was classified by the Department of Home Affairs (the Department) as an Illegal Maritime Arrival and placed in immigration detention. He and his then wife claimed that although living in Iran, they were stateless Faili Kurds and not Iranian nationals.
The applicant and his former wife have a son, [Child B], born while they were in community detention in 2011. [Child B] is an Australian citizen. The applicant gave evidence about spending a significant amount of time with his son, despite the applicant’s separation from his son’s mother.
The applicant was granted a protection visa on 6 September 2011.
The delegate of the Department of Home Affairs (the Department) cancelled his protection visa on 21 March 2023 under s 116 of the Act on the basis that the delegate was not satisfied as to the applicant’s identity. The applicant’s former wife’s visa was also cancelled consequentially.
This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal). The key issues are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.
CANCELLATION BY THE DEPARTMENT
Notice of Intention to Consider Cancellation dated 22 December 2022
On 22 December 2022 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his visa, under s 116(1AA) of the Act.
In the conclusion of the NOICC, the delegate of the Department stated:
based on the information before me it appears that you have provided inconsistent and contradictory information regarding your identity, your family composition and their whereabouts, as well as your life story. I consider that to date you have not provided any documentation to support your claimed identity as [Alias 1] (DOB [date]).
The particulars of the grounds for cancellation and information indicating the grounds for cancellation were listed in the NOICC, which is set out in Attachment A to this decision.
Response to the NOICC by the applicant
The applicant did not respond to the NOICC. The Department noted in the decision dated 21 March 2023 that the applicant had not contacted the Department since his identity interview on 13 September 2019.
Decision by the Department to cancel the visa on 21 March 2023
On 21 March 2023 the Department cancelled the applicant’s visa under s 116(1AA) of the Act for the reasons elaborated in the NOICC set out in Attachment A.
The delegate of the Department (the delegate) noted that the visa holder was granted a protection visa on the basis that he claimed to be a stateless Faili Kurd, who had resided in Iran for the majority of his life and who had never held any identity documents.
The delegate stated that throughout his interactions with the Department since arriving on [date] June 2010 the applicant had given inconsistent information regarding identity documentation held prior to his arrival in Australia. The delegate noted that on his Biodata Form on [date] June 2010, the applicant claimed to have held a White Card but at the Entry Interview in July 2010 and during the Independent Merits Review (IMR) process, he stated that he did not have any identity documents, was not issued with a birth certificate, and had not applied for a Green Card, the predecessor of the White Card.
The delegate noted that the applicant’s former wife, [Ms A], also claimed to be stateless and claimed that she had no identity documents. After they were granted protection visas, [Ms A]’s father provided the Department with a copy of his shenasnameh in January 2014. [Ms A]’s mother and brother were found by the Australian Border Force to have Iranian passports during baggage examinations in 2015 and 2016.
The delegate found that the shnasnameh and Iranian passports prove that [Ms A]’s father, brother and mother are Iranian citizens, and it followed that [Ms A] was an Iranian citizen. In the delegate’s view, this caused significant doubt that the applicant, who travelled to Australia with [Ms A], was a stateless Faili Kurd.
The delegate noted that the applicant claimed to have paid a people smuggler USD 18,000 for false Iranian passports for he and his former wife to travel to Australia. As [Ms A] is an Iranian citizen, the delegate found that it was highly implausible that this had taken place.
The delegate noted that the applicant had consistently declared to the Department that his name is [Alias 1], however investigations by the Department revealed that he refers to himself as [Alias 2], and that his [social media] profile was under the name ‘[name]’ which was a very similar name to that of his former wife, [Ms A]. In a comment on [social media], an ‘undeclared cousin of the visa holder’s former wife’, referred to the applicant as ‘[Alias 3]’ in a comment. [Mr C] declared that he was the nephew of the applicant, and he referred to him as [Alias 3], and also declared that he was the cousin of the visa holder’s former wife.
The delegate noted that Departmental records indicate that during a telephone call with the applicant’s emergency contact, [Ms D], a staff member from the Beirut office asked twice about [Alias 1]. On both occasions, [Ms D] gave information about her son, [Alias 3], who had left Iran. The delegate noted that country information about Iran and Iraq suggests that children inherit the family name of the father, and the applicant’s son’s family name was [name, the mother’s surname].
The delegate noted that the applicant claimed that his parents were deceased and he was an only child, however this contradicted information that he had not declared familial relationships with people in Australia and his parents were not deceased at his time of arrival at Christmas Island.
The delegate noted that the applicant had not provided any reliable documentation supporting his identity. The delegate was unsatisfied as to the applicant’s identity.
Evidence before this Tribunal
The applicant appeared before the Tribunal on 5 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. The applicant was represented in relation to the review.
The applicant also provided detailed written submissions prior to the Tribunal hearing. This included a Statutory Declaration dated 23 September 2023 in which the applicant said that to the best of his knowledge all the answers he put in his protection visa application were correct.
A summary of the evidence provided is set out in the findings below.
FINDINGS AND REASONS
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) – the Tribunal must be satisfied as to the applicant’s identity. If satisfied that the ground for cancellation is made out, in that the Tribunal is not satisfied as to the applicant’s identity, 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.
For the following reasons, the Tribunal is not satisfied that the ground for cancellation is made out and has concluded that the decision to cancel the applicant’s visa should be set aside.
Non-disclosure Certificate
A preliminary issue for the Tribunal to consider was that the Department had placed a Certificate on the Department file pursuant to s 438(1)(b) of the Act, certifying that certain folios in the file should not be disclosed by the Tribunal to the applicant. The reason given for this was that there was a public interest reason for non-disclosure, which was that it would reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prevent the effectiveness of those methods. The Tribunal is satisfied that the Certificate was valid as it clearly specifies a public interest reason for non-disclosure and identifies the claimed harm to Department investigative measures if released. In light of this, the Tribunal did not provide a copy of the folios identified by the Certificate to the applicant, however, in order to be fair, the Tribunal disclosed the general contents of the folios to the applicant.
The relevant folios were an identity and biometrics report produced by the Department dated 7 May 2020. The report concluded that the applicant’s identity was not supported and that it was highly likely that the applicant falsified his name, family composition, life story and nationality. The report concluded that it was highly likely that the applicant’s name was [Alias 3], that he had undeclared family members in Australia and that he was a citizen of Iran. The report was used by the Department in consideration of cancellation.
The issues highlighted by the report were referred to in the NOICC, as set out earlier in the decision, such that the applicant was already aware of them and had been provided with an opportunity to comment on them (although no response was received).
Validity of the NOICC
The applicant’s representative submitted that the NOICC was not sent in accordance with reg 2.55 of the Migration Regulations1994 (Cth), as the first Department letter was returned to the Department marked ‘return to sender’ and the second letter was sent to the same address. It was contended that the address on the second letter was not the last known address, as the marking ‘return to sender’ should have suggested that it should not have been sent to the previous address. At the Tribunal hearing, the applicant told the Tribunal that he and his former wife had not received the NOICC and therefore had not responded to the Department, and the only reason he found out about it was because his Centrelink payment ceased. He said that he had changed his address. He told Centrelink about his change of address but does not know if he had told the Department. He said Centrelink told him that he should tell the Department as well. The Tribunal put to him that the Department is obligated to send notices to the last known address. He said that he is not sure if he provided his new address to the Department.
The Tribunal is satisfied that the NOICC was dispatched in accordance with reg 2.55, which requires that the document be sent to the person’s last residential address known to the Minister or by email to the last email address known to the Minister. The applicant had not notified the Minister of the change of address.
The Tribunal is satisfied that the NOICC was valid. Pursuant to s 119, the NOICC informed the applicant that there appeared to be grounds for cancelling the visa and gave particulars of those grounds and of the information because of which the grounds appeared to exist. The NOICC also invited the applicant to show within a specified time that those grounds did not exist or why the visa should not be cancelled.
Does the ground for cancellation exist?
Section 116(1AA) of the Act – not satisfied as to identity
A visa may be cancelled under s 116(1AA) of the Act if the Minister is not satisfied as to the visa holder’s identity.
‘Identity’ is not defined in the legislation. The Explanatory Memorandum for the Bill that introduced s 116(1AA) into the Act provides:
This amendment provides the Minister with a discretion to cancel a visa if, for example, two or more documents or pieces of information about a person’s identity have been given, furnished or provided by, on behalf of, or in relation to the applicant or 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.
Contradictory or inconsistent information or documents relating to a person’s identity will prevent the Minister from being satisfied as to a person’s true identity. The Minister’s discretion to cancel a visa also applies where the Minister is not satisfied as to the visa holder’s identity for any other reason.
The purpose of subsection 116(1AA) of the Migration Act is to make clear the Government’s position that a person must always provide correct information about their identity at any stage before, during or after the visa application process. If there is doubt about the person’s identity, the Minister has the discretion to cancel the person’s visa.[1]
[1] Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014.
The ordinary meaning of the word ‘identity’ is ‘who a person is, or the qualities of a person or group that make them different from others’.[2] In BWS22 v MICMA,[3] the Court referred to the ordinary meaning of ‘identity’, defined in the Oxford dictionary as ‘… the condition of being a single individual; the fact that a person or thing is itself and not something else; individuality, personality’, and in the Macquarie dictionary as ‘the condition of being oneself or itself and not another’.[4] The Court held that the term requires the Minister to be satisfied of a person’s true identity, rather than a consistent identity adopted since arrival in Australia.[5]
[2] Cambridge English Dictionary.
[3] BWS22 v MICMA [2023] FedCFamC2G 635.
[4] BWS22 v MICMA [2023] FedCFamC2G 635, at [41].
[5] BWS22 v MICMA [2023] FedCFamC2G 635, at [60].
Departmental Guidelines also explain that a visa should only be cancelled under s 116(1AA) if the decision maker is not satisfied as to the [visa] holder’s correct identity, and not where 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 satisfied the decision maker as to their true identity.[6]
[6] BWS22 v MICMA [2023] FedCFamC2G 635, at [54].
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the context of administrative decision-making.[7] However, where, as in cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal).[8]
[7] See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282–283; MIMIA v QAAH (2006) 231 CLR 1 at [40] and cases there cited.
[8] See Zhao v MIMA [2000] FCA 1235 at [25], [32]–[34]. See also Mian v MILGEA (1992) 28 ALD 165 at 169 and Jasbeer Singh v MIEA (1994) 127 ALR 383 at [14]. In those two cases the Court was referring to the burden of proving relevant facts said to attract s 20 as in force before 1 September 1994, which in turn attracted the deportation power, but the principle would be equally applicable to visa cancellation.
The principle in Briginshaw v Briginshaw,[9] that having regard to the serious consequences of a visa cancellation, a high degree of satisfaction is required before making adverse findings,[10] is not generally applicable in the context of s 116.[11] The Tribunal must be satisfied based on findings or inferences of fact which are supported by probative material and logical grounds. It is a matter for the Tribunal to determine what weight to attach to particular matters and how to evaluate them.[12]
[9] In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J held at 362 that in civil matters, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal [of fact]”. This principle has been applied by the courts in a number of migration cases involving allegations of actual bias (e.g. MIMIA v Jia Legeng (2001) 205 CLR 507 at [127], [266] and Sun v MIEA (1997) 81 FCR 71). or false or misleading information for the purposes of s 20 of the Act as in force before 1 September 1994.
[10] Le v MIMIA [2004] FCA 708.
[11] Le v MIMIA [2004] FCA 708; Ngaronoa v MIAC (2007) 244 ALR 119 at [12], Kumar v MIMA [1999] FCA 156 at [35], SCAN v MIMIA [2002] FMCA 129 at [10] and DZACE v MIAC [2012] FMCA 378 at [27]–[29].
[12] See Ngaronoa v MIAC (2007) 244 ALR 119 upholding Ngaronoa v MIAC [2007] FCA 1565.
Claims made by the applicant
At the Tribunal hearing the applicant confirmed that he claimed the same identity that he identified when he first arrived in Australia and as set out in his protection visa application. He confirmed that his name, parents’ names, sibling details, place of birth and details of his background are as set out in the protection visa application (living as a stateless Faili Kurd in Iran).
Findings of the Tribunal as to s 116(1AA) of the Act – the applicant’s identity
As referred to earlier in this decision, the Department did not have the benefit of submissions from the applicant in response to the NOICC. Detailed submissions have been provided to the Tribunal. After considering these submissions and the applicant’s evidence to the Department and the review in totality, the Tribunal is satisfied as to the applicant’s identity. The Tribunal is satisfied as to ‘who the applicant is, or the qualities that differentiate him from others’[13]. The Tribunal is satisfied that it is possible to be satisfied as to which pieces of contradictory information are genuine. Although there were not identity documents to authenticate this identity, the fact that it has been consistently claimed that he did not have relevant documents due to his statelessness explains this omission. The Tribunal is satisfied that the applicant’s identity is as follows – a Faili Kurd man called [applicant’s name] of uncertain date of birth (but consistently claimed to be [date]). The Tribunal is satisfied that his parents were [name] and [Ms E] and that he has no siblings, and he has one son in Australia. The Tribunal is satisfied that the family are stateless Faili Kurds and that they travelled to Iran from Iraq when he was a baby.
[13] Cambridge English Dictionary.
The detailed reasons for these findings are set out below.
Language/Ethnicity
The applicant confirmed in a Statutory Declaration dated 23 September 2023 that he speaks Iraqi Kurdish better than Farsi and would be happy ‘to do any test in this regard’. He said that he used a Kurdish interpreter at the Refugee Status Assessment (RSA) Interview. The RSA assessor referred to him speaking Kurdish fluently. He said in his Statutory Declaration that he chose a Farsi interpreter for his interview at the Department because the Kurdish interpreters are often of the wrong dialect.

During the Tribunal hearing he spoke about his pride in his Kurdish ethnicity. Given this expression of pride, which the Tribunal accepts as genuine due to the spontaneous way in which it was articulated, and the fact that the applicant has used Kurdish interpreters on some occasions and has provided a reasonable explanation for why he has used a Farsi interpreter on other occasions, the Tribunal is satisfied that the applicant is Kurdish and speaks Kurdish.
Name
The Tribunal is satisfied that the applicant’s name is as claimed in his protection visa application. The applicant confirmed in a Statutory Declaration dated 23 September 2023 that his full name is [applicant name], as claimed in his application. He told the Tribunal at hearing that this is the name that was used by him when in Iran.
In the cancellation decision, the delegate of the Department concluded that it was likely that the applicant’s family name was [name], which he had failed to disclose to the Department.
The delegate also noted that the applicant had consistently declared to the Department that his name is [Alias 1 surname variation], however investigations by the Department revealed that he had referred to himself as [Alias 2] on an [social media] account called ‘[name]’. Asked by the Tribunal at hearing if he was known by that name, he said that if not asked for his surname, he provides the name [a short version of applicant’s name], as he is sometimes called this. He confirmed that his friends in Australia and in Iran sometimes call him [this name]. He explained that there are ‘many [people with the same name] in Iran’ so sometimes they used [this name] to differentiate him. He said that his mother called him [by his first name]. He confirmed that he has not used any other names.
The Tribunal put to him that there was an [social media] profile under the name [name], as referred to in the delegate’s decision. The delegate noted that this was a name similar to his former wife’s name. He responded that his lawyer had ‘checked this [social media] profile’, and it was opened by his former wife to show photographs of their son, [Mr B], when he was young. He said that he did not use social media, the profile had not been used by him and he was unaware of it.
The delegate in the cancellation decision also referred to a comment recorded by a person called [Mr F], referring to [an Alias 3], under a photograph of the applicant and his son, posted by his former wife’s cousin, [Mr G]. He said that he does not know who [Mr F] is and had no knowledge of [Mr G]’s [social media] page. However, he had now looked at the [social media] page, and saw that it said ‘[content deleted]’ which he said translated as ‘[deleted]’. He said that [Mr G] is the cousin of [Ms A], and it is possible that [Mr G] was not referring to the applicant when posting the comment, and meant to refer to [Mr B]. He said that the word ‘amo’ was used for ‘uncle’ but is also used by elders referring to a child as people would not use ‘amo’ in relation to an adult.
It was also put to the applicant at the Tribunal hearing that as referred to in the cancellation decision, the Department has information that [Mr C] (DOB [date]) attested to knowing the applicant for a period of more than 12 months on his application for a New South Wales Driver’s Licence lodged in 2012. Departmental records indicate that [Mr C] referred to the applicant as his uncle in his own matters before the Department, also calling him [Alias 3]. The applicant told the Tribunal that he cannot remember and does know [Mr C] or why he used the name [Alias 3] in relation to him. Asked if he remembers applying for a driver’s licence in 2012 in NSW, he said that he remembers but does not know [Mr C] and does not remember using him as a reference. He said that maybe it was someone he knew at the time, but he cannot remember. He left the camp in 2011 and came to Sydney in 2012 and maybe someone introduced him, but he just cannot remember now.
In the cancellation decision, the delegate also noted that Departmental records indicate that during a telephone call with the applicant’s emergency contact, [Ms D] in Iran, a staff member from the Beirut office asked twice about [Alias 1], On both occasions, [Ms D] gave information about her ‘son’, [Alias 3], who had left Iran.
At the Tribunal hearing, the applicant was asked who [Ms D] was, and why she said her son was [Alias 3]. The Tribunal put to him that these queries and [Ms D]’s response suggest that his surname is [name]. He was asked if he is [Alias 3], and if not, who he is.
The applicant told the Tribunal that he does not know why [Ms D] used the name ‘[name]’, although it may have been because she knows his former wife, and knew they were married. [Ms A] is a distant relative of [Ms D]’s. In his Statutory Declaration dated 23 September 2023, he said that he provided the name ‘[Ms D]’ in his protection visa application as his emergency contact, as his parents had died, and she was close to him. [Ms D] was his father-in-law’s sister. She lived half an hour from them and was close to his mother, [Ms E].
He confirmed this at the Tribunal hearing, saying [Ms D] was a ‘really good friend’ of his mother’s. He told the Tribunal that he had requested [Ms D]’s birth certificate, which would show his name if he was her son. He said that when travelling to Australia, the group he was travelling with all agreed to provide [Ms D]’s number as an emergency contact, which they learnt by heart. He said that in Iranian culture, they identify close family friends as uncles, mothers and aunties. On a few occasions, he sent money to her children as he ‘loves her like his mother’. He said that he does not know why she used the name ‘[name]’ when asked about him but it may be because of the connection to [Ms A]. He said that he was very close to [Ms D] and he lost his mother. She saw him like her own son as he was friends with her son. He believes she is a stateless Faili Kurd as she came to Iran around the same time and the families were always together.
The applicant later provided to the Tribunal a translated copy of a citizenship certificate for [Ms D] in which it was stated that her children were ‘[Mr H], [Mr G], [Mr I] and [Ms J]’.
He said that ‘[Ms D]’ called him ‘my son’ as she and his mother were very close and [Ms D] was like a mother to him. He said at the Tribunal hearing that in their culture, ‘a lot of mothers will call a person “my son” as an expression of pride’.
In the cancellation decision, the delegate also noted that country information about Iran and Iraq suggests that children inherit the family name of the father, and the applicant’s son’s family name was [name]. At the Tribunal hearing, it was put to him that this suggests that his surname is also [name]. The applicant responded to this by saying that initially he and his former wife wanted to call their child ‘[Child B]’, however his ex-wife thought that this name was too long and complex, so she suggested they use her name. He said that a nurse at the hospital said they could call him whatever name they wished in Australia, and so they adopted this practice.
After consideration of all the evidence, the Tribunal accepts that the applicant’s name is as it was provided on his entry to Australia and in his protection visa application and notes that he has consistently provided this name in various documents and interviews. The Tribunal accepts his evidence that on occasion this may be shortened to ‘[his first name]’ as it is common to refer to people by their first names or sometimes to ‘[first and second names]’ to differentiate him from other [people with the same name] as [this name] is a very common name.
The Tribunal also accepts the applicant’s evidence that he is not [Alias 3]. The delegate of the Department, when making the decision to cancel, did not have the benefit of the applicant’s evidence about these matters as the applicant did not respond as he did not receive the NOICC, having moved address. The applicant has now responded to all the concerns enunciated in the NOICC (and in the cancellation decision), including the suggestion that his name was [name].
The Tribunal notes, firstly, that the name [name] has not been used by the applicant on any documents or in evidence in any of the forums in which he appeared since arrival in Australia.
Secondly, the Tribunal accepts that the [social media] profile ‘[name]’ was not set up or used by the applicant and instead was created by his wife for their son. This claim is supported by the fact that there are no posts by him and in his evidence at the Tribunal hearing it was clear he was unaware of this [social media] profile, discussing how he and his lawyer had looked at it recently.
Thirdly, the Tribunal does not accept that the use of the name ‘[Alias 3]’ by the person called [Mr F] in one [social media] post indicates that the applicant is [Alias 3]. The applicant has given evidence that he does not know [Mr F]. His evidence about the use of the words suggesting that the post relates to his son because of the use of the word ‘amo’, is credible. The use of this word was the topic of a forum discussion in which it was suggested that uncles would call their nephews ‘amo’.[14] A Persian language website also referred to cousins as ‘amoo’. The site states that uncles and aunts will call their nephews and nieces ‘amoo’ as a term of endearment.[15]
[14] Reddit Forum, <Why do people call me "amo": r/farsi (reddit.com)>.
[15] My Persian Corner, <Persian Family Vocabulary and Cultural Uses - My Persian Corner>.
Fourthly, the Tribunal accepts the applicant’s evidence that he does not know [Mr C] who provided him with a reference on his driver’s licence application in NSW, although he may have known him in 2012, and that he does not know why he used the name ‘[Alias 3]’ in relation to his own matters. The applicant confirmed in a Statutory Declaration dated 23 September 2023 that he is not related to [Mr C]. He said that he could not be his uncle as he is younger than [Mr C], and the Tribunal accepts this is the case.
Fifthly, the applicant has provided a reasonable explanation for why his son’s surname is [name]. He confirmed in a Statutory Declaration dated 23 September 2023 that his son’s name is [Child B, mother’s surname] and he is an Australian citizen. He was born on [date]. He said that initially they wanted to call their son ‘[Child B], however his ex-wife thought that this name was too long and complex, so she suggested they use her name. He said that a nurse at the hospital said that in Australia they could call him whatever name they wished. The Tribunal accepts, as he has provided a reasonable explanation for the use of his wife’s name, that the applicant’s son is named [Child B, mother’s surname] and this does not indicate that his name is [name].
Finally, the Tribunal accepts that [Ms D] may have used the name ‘[name]’ on the telephone in connection with his former wife [Ms A]. The Tribunal also accepts that as a close family friend of his mother, she may have referred to him as ‘my son’, which is a common reference in Iranian culture. According to language sites, elderly people may call younger people ‘my son/daughter’. [16]The Tribunal also notes that this was a telephone call overseas using an interpreter, so her meaning may have not been entirely clear.
[16] My Persian Corner, <Persian Family Vocabulary and Cultural Uses - My Persian Corner>.
For all these reasons considered cumulatively, the Tribunal is satisfied that the applicant’s name is [applicant’s name] as claimed by him consistently.
The applicant’s date of birth
The Tribunal is satisfied that the applicant is not exactly certain of his date of birth but believes it to be [Date 1], as consistently claimed by him.
Most recently, the applicant confirmed in a Statutory Declaration dated 23 September 2023 that he was born on [Date 1].
At the Tribunal hearing the applicant confirmed that he does not have any documents from Iran or Iraq to demonstrate his date of birth. He said that he is [age] years old but does not know the exact date of birth. He said that it was the [date] in the Iranian calendar but does not know the exact year. The date he provided to the Department was the estimate based on his calculations of when he thought he was born, based on what he was told by his parents and how old he was when they died.
The applicant agreed with the Tribunal that some stateless Faili Kurds have White or Green cards, which confirm birth dates. He said that ‘unfortunately my father did not apply.’ He was asked why [Ms D] would have a birth certificate, as he had earlier said that she did. He said that he is not sure if she has one from Iraq or Iran recently, but he has asked her for proof that he is not her son.
The Tribunal is satisfied that the applicant’s date of birth is roughly as provided in his protection visa application ([Date 1]), as this information has been consistently provided in all documents since his entry interview and he has explained he has assumed this date from his parents. He has also provided a reasonable explanation as to why he does not have an exact date. The Tribunal notes that in the Department’s identity assessment, it was found that his date of birth was ‘supported’ and that the western date of birth was an accurate conversion of the Persian date of birth.
Siblings
The applicant has consistently stated that he has no siblings, and the Tribunal accepts that this is the case.
In the cancellation decision, the delegate of the Department contemplated that [Mr G] (date of birth [Date 2]) could be his brother (if [Ms D] was his mother). The delegate referred to the calls from the Beirut office of the Department to [Ms D], when she referred to the applicant as [Alias 3], and as ‘my son’.
The delegate noted that in the RSA process, [Mr G] said that his brothers were [Mr H] and [Mr I], but noted also that he did not disclose that the applicant’s former wife was his cousin until his identity interview.
The delegate also noted that the applicant and [Mr G] had both remitted money to individuals named [Mr H] and [Ms J] in Iran, labelled as ‘family support’.
The delegate was of the view that [Mr G], [Mr H] and [Ms J] were siblings of the applicant.
The Tribunal has earlier found that [Ms D] may have called the applicant son as a term of endearment, and that she may have called him [name] because of his association with his former wife. For reasons set out later in this decision, the Tribunal is satisfied that the applicant’s mother is not [Ms D], and instead his mother was [Ms E].
At the Tribunal hearing, the applicant said that [Mr H] and [Ms J] are [Mr G]’s siblings and he provided the money to them to help [Ms D] when she was ill. He sent money to her as she was like a mother to him, and his own parents had passed away. He confirmed that [Mr G], [Mr H] and [Ms J] are his former wife’s cousins. The Tribunal accepts that the applicant has no siblings and that [Mr G], [Mr H] and [Ms J] are not his siblings as [Ms D] is not his mother. In the birth certificate provided by [Ms D], they are listed as her children, and the applicant’s name is not listed. [Mr G] also named [Mr H] and [Ms J] as his siblings, and not the applicant.
Furthermore, at the Tribunal hearing when talking about his son, the applicant spontaneously mentioned how his son was ‘following his path’ by being an only child. He also confirmed at the Tribunal hearing that he has no siblings, cousins or other family in Australia.
The information about having no siblings has been provided consistently in the Biodata Interview, Entry Interview, application, RSA Interview and at the IMR as well as to this Tribunal.
For all these reasons the Tribunal is satisfied that the applicant has no siblings, as claimed by him. This evidence also supports the finding that his name is as claimed (as set out earlier).
Name, birthplace and death of parents
The applicant confirmed in a Statutory Declaration dated 23 September 2023 that his father’s name was [name], and he came from Iraq, and that his mother’s name was [Ms E]. He said in the Statutory Declaration that his father passed away in 1997 and his mother in around 2003. These claims were confirmed at the Tribunal hearing.
As referred to earlier, the delegate in the cancellation decision took the view that the applicant appeared to be directly related to [Mr G] and therefore he had given incorrect names for his parents. The delegate was of the view that his mother was [Ms D].
The delegate referred to inconsistencies in the information about his father’s death. In his identity interview he claimed that he was [age] or [age] years old when his father died, and in the Entry Interview he said it was 2000, but in his Statement of Claims he said it was 1997. The delegate noted that [Mr G]’s father had not passed away until 2015 and was of the view that this man was also the applicant’s father.
The Tribunal accepts the applicant’s claims that his father was [name] and his mother [Ms E], for the reasons set out below.
Firstly, as set out earlier, the Tribunal has accepted that [Ms D] referred to the applicant as her son as a matter of pride and love as he was close to her. This terminology is sometimes used by elderly people in Iran.[17] A birth certificate has been provided to the Tribunal for [Ms D] demonstrating that the applicant is not listed with her other children. The Tribunal has accepted, for reasons set out earlier, that he has no siblings, as claimed by him, such that [Mr G]’s mother is not his mother. The information about his parents’ names, places of origin and deaths has been consistently provided.
[17] My Persian Corner, < Persian Family Vocabulary and Cultural Uses - My Persian Corner>.
Secondly, the Tribunal accepts that the information provided in his Biodata Form in June 2010 that his mother was [age] years old and was residing in Iran, was incorrectly recorded. At the Tribunal hearing he confirmed that he had a Farsi interpreter at the Biodata Interview, and he believes that he told her that his mother passed away in Iran from illness when he was around [age] years old, but this was incorrectly recorded. He also believes that the information about his father’s death was incorrectly recorded. He confirmed at the Tribunal hearing that his father died when he was approximately [age] or [age] in 1997. This evidence matches with evidence given at the RSA Interview, when he said that his father became unwell in 1995 and he started to work to support his parents in the bazaar. It was submitted by the applicant that the interpreter was handwriting answers and the record should be regarded as unreliable. Reference was made to the case of MZZJO v MIBP [2014] FCAFC 80 in which the court stated that caution should be taken in regard to omissions in entry interviews, as visa-holders could have had a long journey at sea in difficult conditions and authority figures may be viewed with mistrust.
The Tribunal accepts that on occasion, depending on the circumstances, information may either be incorrectly provided or incorrectly given at biodata or entry interviews. These interviews were often quick and took place shortly after traumatic journeys and in environments which may have appeared intimidating. On occasions there could also have been interpreter issues. In any event, the evidence about his mother and father was correctly recorded on a number of other occasions such that the Tribunal accepts the version claimed by the applicant in his protection visa application and in his recent evidence to the Tribunal.
Furthermore, during the Tribunal hearing, when discussing other matters, he spontaneously talked about the death of his father at the age of [age], which supported his claims that there were errors in the record of the Biodata Interview. The Tribunal accepts that information provided in the early interviews about his parents’ deaths was incorrectly recorded.

The Tribunal accepts that the applicant’s father was [name], who came from Iraq, and died in 1997, and his mother was [Ms E], who died in 2003. With the exceptions referred to above, the information about his parents’ names, origin and deaths has been provided consistently in the Biodata Interview, Entry Interview, application, RSA Interview and at the IMR as well as to this Tribunal.
Background in Iraq and Iran
The applicant stated in his Statutory Declaration dated 23 September 2023 that he left Iraq for Iran with his family when he was [age], as Iraq was deporting people who did not have Iraqi citizenship.
The delegate of the Department referred to Departmental records, which included a translation of an immigration detention ‘property note’ recorded on his arrival to Christmas Island, which stated that he travelled between Tehran and Dubai ‘with an Iraqi passport’. The delegate found it was possible that he did not depart Imam Khomeini International Airport on a fraudulent Iranian passport as claimed, noting that the 2018 Department of Foreign Affairs and Trade (DFAT) Country Information Report (DFAT Report) on Iran stated:
Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.⁷
In his Entry Interview and since, the applicant has consistently stated that his family came from Iraq, were stateless and that he left Iran on a fake Iranian passport. At the Tribunal hearing, he confirmed that he never had an Iraqi passport and this property note recording may have been the result of an interpretation issue. He said that it was possible at the time to get any fake document in Iran and this was how he obtained the document and left without detection. His representative claimed that country sources from the time he left, as opposed to the 2018 DFAT Report quoted by the delegate, indicated that it was possible to bribe officials and leave through the airport.
The Tribunal accepts this evidence, given that the property note is the only mention of an Iraqi passport and it is possible there was an interpretation issue. The applicant stated in his Entry Interview that he left for Iran when he was [age] old and had no status in Iran. He said that when he left Iran, security was being tightened and no-one was hiring people like him as he had no identity. At the Tribunal hearing he was able to provide details of his family’s arrival in Iran, as related to him by his parents. He confirmed that his parents told him that his grandfather was an Iranian Kurd, and Saddam Hussein wanted to get rid of all Iranians. He said that he was only [age] old when his parents decided to go to Iran. He said that he does not know where they lived when they first went to Iran, but they ended up in Tehran. He said that his grandparents had passed away prior to their departure. His parents had no siblings in Iran.
He told the Tribunal that when he first arrived in Iran, his father bought and sold [products] and worked in [workplaces]. His mother did not work. The applicant said that when he was old enough, he worked with his father. He did not go to school but they ‘learnt a bit with friends’. He said that when he writes in Persian he makes lots of mistakes and he cannot read properly. He said that they had to pay for private medical care but there were some organisations that helped Kurdish people. This information was related fluidly and appeared commensurate with a person who had direct experience of the matters related.
The information about his origin has been provided consistently in the Biodata Interview, Entry Interview, application, RSA Interview and at the IMR as well as to this Tribunal. The Tribunal accepts this evidence.
Identity documentation
The applicant confirmed in a Statutory Declaration dated 23 September 2023 that his parents did not have White or Green Cards in Iran but he does not know why this was the case.
The delegate, in the cancellation decision, concluded that, throughout the applicant’s interactions with the Department since arriving on [date] June 2010, the applicant had given inconsistent information regarding identity documentation held prior to his arrival in Australia.
The delegate noted that on his Biodata Form on [date] June 2010, the applicant claimed to have held a White Card but at the Entry Interview in July 2010 and during the IMR process, he stated that he did not have any identity documents, was not issued with a birth certificate, and had not applied for a Green Card, the predecessor of the White Card. The delegate also noted that the applicant had not provided any reliable documentation supporting his identity. Relevant country information from DFAT quoted by the delegate noted that in 2014, the Iranian government issued Green Cards to Iraqi refugees.⁴The delegate quoted country sources which suggested that Iraqi refugees in Iran needed White Cards in order to attend school, receive medical treatment and register births, deaths and marriages. It was concluded that it was not plausible that the applicant could reside in Iran for [number] years without documentation. The delegate found that evidence of this was the fact that he was paid above the minimum wage, and saved a significant amount to pay the people smuggler.
It was submitted by the applicant’s representative to the Tribunal that in his Biodata Interview, the applicant had difficulties with the interpreter, who was handwriting answers. It was submitted that the Biodata Interview was unreliable and since then he has consistently stated that he did not have a White or Green Card. As referred to earlier, it was submitted that decision-makers should treat biodata and entry interviews with caution as they are first interviews on entry. In MZZJO v MIBP [2014] FCAFC 80, the court stated that caution should be taken in regard to omissions in entry interviews, as visa-holders could have had a long journey at sea in difficult conditions and authority figures may be viewed with mistrust.
As referred to earlier in this decision, the Tribunal accepts that on occasion, depending on the circumstances, information may either be incorrectly provided or incorrectly given at biodata or entry interviews, as these interviews were quick and took place shortly after traumatic journeys and in environments which may have appeared intimidating. On occasions there could also have been interpreter issues.

100. The Tribunal accepts the applicant’s representations that he and his family did not have White or Green cards, given that the only occasion in all the interviews and statements that he has said that he did have a White Card, was in the Biodata Interview. On all other occasions he has consistently stated that his family did not have Green or White Cards.
101. The applicant has provided a reasonable explanation for the fact that his family did not have Green or White cards. The Tribunal queried if he ever asked his parents why they did not have these cards, as presumably some Faili Kurds did. He responded that he did ask, and his father said that they did not need them as ‘they were living ok’. He said that his father passed away when he was [age] years old, and his mother never pursued this. Asked if he ever thought of trying to obtain a Green Card himself, he said that he did not as by that time he had fake identification, including a driver’s licence. In his IMR Interview he said that his parents had passed on a fear to him that if he applied he would be arrested. His evidence was also supported by other references in his evidence to not having documentation in Iran. For example, when discussing his wedding (referred to later in this decision) he said that they did not have formal documentation so were married by a sheik. In the RSA Interview, he referred to being coerced into paying bribes to the Basij while living in Iran, evidence which is consistent with treatment of Kurds at the time.[18]
[18] Department of Foreign Affairs and Trade, ‘Iran: CX263445 Response to IRN 11487: Iran – Faili Kurds’, 27 April 2011.
102. The representative submitted that the majority of Faili Kurds were not registered. He said that the applicant has claimed that he and his family did not apply for cards as they were afraid of arrest. The applicant has also given evidence that he saw others being refused and this was another reason why they did not apply. Reference was also made to the decision of the IMR, in which, after assessing relevant country information, the assessor stated that ‘many in Iran are undocumented either because they were always so or because they are no longer in possession of green or white cards (paragraph 65)’. It was submitted that the RSA and IMR, after assessing all the country information, with knowledge that the applicant did not have documentation, concluded that the applicant was a stateless person. The Tribunal notes that the DFAT Report of 2011 stated that there were Faili Kurds in Iran without documentation, and it was not possible to estimate how many there were.[19] The same report indicated that some Faili Kurds may be unable to register because they were in no go areas, they had not registered prior or they had missed registration deadlines.
[19] Department of Foreign Affairs and Trade, ‘Iran: CX263445 Response to IRN 11487: Iran – Faili Kurds’, 27 April 2011.
103. The applicant’s evidence about having no documents has been provided consistently in the Biodata Interview, Entry Interview, application, RSA Interview and at the IMR as well as to this Tribunal, with the exceptions referred to earlier. Having no documents in itself is not a reason to doubt identity, given that at the time many asylum seekers arrived in Australia without documents, as noted in the RSA decision.
The applicant’s former wife and her family
104. The applicant confirmed in a Statutory Declaration dated 23 September 2023 that he was unaware until 2019 that his former wife’s family had Iranian citizenship and he is certain that she did not as she travelled with him to Australia on a fake passport.
105. The delegate, in the cancellation decision, noted that the applicant’s former wife had claimed to be stateless when she arrived in Australia, and claimed that she had no identity documents. Her brother and mother arrived in Australia one week later. A month after the applicant and his former wife were granted protection visas, her mother and brother were also granted protection visas on the basis of their claims to be stateless Faili Kurds.
106. The delegate noted that in 2014 [Ms A]’s father lodged an application for a Combined Partner (Subclass 309/100) visa and during this process her father provided the Department with a copy of his shenasnameh and Iranian passport (in January 2014).
107. The delegate also noted in the cancellation decision that the applicant’s former wife’s mother and brother were found by the Australian Border Force to have Iranian passports during baggage examinations in 2015 and 2016. Their protection visas were cancelled as they had been granted protection visas on the basis of being stateless Faili Kurds. The delegate concluded that the applicant’s former wife was an Iranian citizen as were the rest of her family. The delegate noted that the applicant claimed to have paid a people smuggler USD 18,000 for false Iranian passports for him and his former wife to travel to Australia. As he concluded that his former wife was an Iranian citizen, the delegate found that it was highly implausible that this had taken place.
108. The Tribunal has not interviewed the applicant’s former wife and is unable to conclusively make findings on her current status. However, the Tribunal is satisfied that the applicant is who he says he is, and that he and [Ms A] travelled together to Australia on fake Iranian passports and that she was not an Iranian citizen at the time. The reasons for this are set out below.
109. Firstly, there is evidence which suggests that they were both stateless Faili Kurds. He has said that he married his former wife three or four months after the election in 2009. He said that they married through a sheik [as] they had no papers in Iran as they were stateless. This evidence does suggest that they were not Iranian citizens.
110. Furthermore, his former wife gave evidence in her application of being ridiculed as a child because her family were Faili Kurds and, as Iraqis, because of their traditional Kurdish dress. She said that they could not go to school or drive. In her Entry Interview she described herself as a Faili Kurd of Iranian birth, and said that she and her husband had Iranian citizenship. Given difficulties with interpretation and accuracy of these interviews, the Tribunal has not given this significant weight, particularly as her evidence later was different. Furthermore, in the IMR decision, the reviewer found her to be a credible witness and said that the reference to Iranian citizenship was an error, and that she was ‘referring to the country in which she had resided all her life’.
111. At her interview for the RSA, she said that she did not know if her family had Iranian citizenship but knew that her mother was Kurdish and her maternal grandmother was from [Country 1]. At the IMR interview she said that her mother was born in Iran but she was not sure if she had Iranian documents. She also did not know if her parents had Green or White cards.
112. The Tribunal accepts that these descriptions do accord with the experiences of being a Faili Kurd, and the Tribunal accepts that her family was Faili Kurd, although later her parents and brother at least were granted Iranian citizenship.
113. Secondly, the Tribunal accepts that the applicant did not know about her family’s status as being Iranian citizens or eligible for Iranian citizenship or that he had a close understanding of her background, such that he may genuinely have believed his former wife had no claim to Iranian citizenship. This is feasible given that they travelled to Australia in 2010 after they were newly married. The applicant said that they had only been married for six months, and they paid a large sum to a people smuggler for fake Iranian passports, which they would not have done if they were Iranian citizens.
114. The applicant told the Tribunal that he did not know until 2019 about her family having Iranian documents. [Ms A]’s father did not accompany them to Australia as, according to the applicant, he was obese and ill. The applicant and [Ms A] separated in Australia in January 2012. It is possible that he was not aware that the family members decided to travel to Iran and apply for citizenship.
115. At the Tribunal hearing it was put to the applicant under the natural justice provisions that his former partner’s family were found to be Iranian citizens, which suggested she was as well. It was also put to him that in the cancellation decision for [Ms A]’s mother, it was stated:
the observations page in this passport states that the visa holder legally departed Iran using her previously issued Iranian government passport. This information indicates that the visa holder departed Iran legally on [date] May 2010 using her Iranian passport which was issued under her true identity as an Iranian citizen. This information appears to indicate that the visa holder was not stateless as claimed at the time of lodging her protection visa application and she did not use a false passport to depart Australia as claimed in her protection visa application. Country information indicates that in order to apply for and be granted an Iranian passport Iranian nationals must hold precursor documents such as an Iranian birth certificate and national identity card. The overarching requirement to apply for and be issued an Iranian passport is that the person must be an Iranian citizen. I consider the visa holder’s possession of an Iranian passport suggests that she is an Iranian citizen. I note the Iranian passport located in the visa holder’s possession and issued under the visa holder’s identity displays her father’s name. As citizenship laws in Iran stipulate children acquire citizenship from their father (paternal line), it appears that the visa holder’s father is also an Iranian citizen and is not stateless as claimed in the visa holder’s protection visa application. I consider based on this credible information the visa holder has legitimately obtained a genuine Iranian passport which is evidence of her Iranian citizenship.

116. A similar paragraph was found in [Ms A]’s brother’s cancellation decision.
117. The Tribunal put to the applicant that this information strongly indicates that his former wife was also an Iranian citizen and had an Iranian passport. In particular, in order to be issued a passport, her family members would have required a birth certificate and identity card. It would have been unusual that she would have been the only family member not to have a birth certificate or identification card. It was put to him that the evidence about her family also strongly suggests that he is an Iranian citizen and not a Faili Kurd as claimed, as he travelled with his former wife and made the same claims for protection as she did.
118. The applicant responded to the Tribunal that he is sure that his former wife did not have an Iranian passport as he said she would have told him. He said that he always thought that she was a stateless Faili Kurd, as this is what she told him, and is sure her father was born in Iraq. He said that they were only together six months before travelling to Australia. He said that while they were on Christmas Island together, they did not talk about their cases or whether they were Iranian citizens. The Tribunal finds this somewhat difficult to believe as it would have been a key issue in their applications for protection, as well as an issue for other detainees. However, it is possible that she did not have an Iranian passport, although she may have been eligible for one, and that he genuinely believed that she was a stateless Faili Kurd as he was. Such a conclusion is supported by his evidence to the Tribunal that in 2019 his former wife told him that her parents paid a significant sum of money to get the passports after arrival in Australia, but he does not really know how they were issued passports. He said that it was easy for him and [Ms A] to get fake passports in Iran, which they did, and he does not know why she would do this if she had a genuine passport.
119. Similar evidence was provided in his Statutory Declaration dated 23 September 2023. He confirmed that he found out that [Ms A]’s mother and father had Iranian citizenship in 2019. He said that [Ms A] knew about it in 2012. He said that [Ms A] said that she could not get Iranian citizenship as she was over 18 when her parents were awarded citizenship and he reiterated that she was stateless. He also said that her father’s birth certificate is clearly fake as it states his place of birth as Iraq and he would not have been issued a certificate unless he was born in Iran.
120. Thirdly, while her family travelled to see her ill father with Iranian passports, the applicant’s former wife did not, which may suggest that she did not attain citizenship. The applicant confirmed in the Statutory Declaration dated 23 September 2023 that [Ms A] had told the Department when applying for a protection visa that she was not sure whether her mother had papers from Iran and she did not know if her father had papers from Iraq. He also said that she found out while her mother was in Australia that her mother had applied for Iranian citizenship a long time ago, but she was only granted citizenship in 2012 as she was able to prove her ancestry. She also said that her father got Iranian citizenship through her mother immediately after her mother did. Her brother also got citizenship. She got the citizenship in 2012 as they wanted to go to Iran to see her husband who was critically ill, and she paid a lot of money to speed it up.

121. It is possible that [Ms A] was not eligible for Iranian citizenship or did not get citizenship as she was over 18. As discussed the applicant said that after her father passed away, [Ms A] told him that her mother had paid someone to get identification documents from Iran, so her mother and brother could travel to see her father who was very ill. He said that he is not aware of how they got the documents as he has not really discussed it with [Ms A]. He said that he is pretty sure that if they paid to get documents and passports for her mother and brother, it was not for [Ms A] as she was not travelling overseas with them. He said that [Ms A]’s mother left Australia two weeks before her husband’s death. Asked at the Tribunal hearing if they could have applied for an Iranian passport for [Ms A] as well, he said that he is sure that [Ms A] does not have an Iranian passport.
122. It was submitted by the representative that even if [Ms A] had Iranian ancestry, country sources suggest that it is not easy to attain citizenship. He quoted the DFAT Report of July 2023, which states that:
access to Iranian citizenship, even for those with Iranian ancestry, should not be assumed. In country-sources told DFAT in 2019 that Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs.

123. On the basis of this evidence, the Tribunal accepts that the applicant and his former wife travelled to Australia on fake Iranian passports as stateless Faili Kurds. Although the information that her family members attained Iranian passports suggests that she was eligible as well, the Tribunal accepts that she was not granted citizenship when her family members were, as she did not travel with them to see her sick father. In any event, the Tribunal is satisfied as to the applicant’s identity, for the reasons enunciated earlier.
[Social media] posts
124. In the delegate’s decision it was stated, ‘as further evidence of your contradictory claims, your former wife posted a photograph on [social media] in 2015 captioned “I [love heart] Iran’, depicting the two of you at a sporting event, wearing the Iranian colours.’
125. The applicant confirmed in a Statutory Declaration dated 23 September 2023 that he does not have a [social media] page, and he does not remember being photographed under a sign wearing Iranian clothes. He said that he has worn red, white and green clothes depicting clouds with a sun in the middle as he is proud of his Kurdish ethnicity.
126. At the Tribunal hearing he was questioned as to whether it was contradictory to his claims to fear persecution in Iran that he would stand under a sign saying, ‘I love Iran’. He said that he does not recall the sign but he supports the Iranian [sports] team, notwithstanding his background. The representative submitted that he was attending a sporting not a political event.
127. The Tribunal accepts that it is reasonable that a person who had lived in Iran his whole life may support the Iranian [sports] team, while at the same time being a stateless Faili Kurd. The fact that he supported the [team] does not derogate from the identity he claims to have, and which is accepted by the Tribunal, for the reasons set out earlier.
Summary of findings
128. For all the reasons set out above, considered cumulatively, the Tribunal is satisfied as to the applicant’s identity. The Tribunal is able to confirm ‘who he is, or the qualities that make him different from others’[20] given that the Tribunal has accepted his ethnicity and language, his name, his approximate date of birth, his place of origin, his family composition and details about his background. For these reasons the Tribunal is satisfied as to his identity as a ‘single individual’ and ‘not something else’ but someone with a particular’ individuality, personality’, with ‘the condition of being oneself or itself and not another’.[21] Furthermore, as discussed above, the inconsistencies have reasonable explanations, and the Tribunal is satisfied that it is possible to form a conclusion regarding which information is genuine.[22] The Tribunal is satisfied that the applicant’s identity is as follows – a Faili Kurd man called [applicant’s name] of uncertain date of birth (but consistently claimed to be [date]). The Tribunal is satisfied that his parents were [name] and [Ms E] and that he has no siblings, and he has one son in Australia. The Tribunal is satisfied that the family are stateless Faili Kurds and that they travelled to Iran from Iraq when he was a baby. As the Tribunal is not satisfied that the ground specified in the notice is made out, the cancellation power does not arise for consideration.
[20] Cambridge Dictionary, < IDENTITY | meaning in the Cambridge English Dictionary>.
[21] BWS22 v MICMA [2023] FedCFamC2G 635, at [41].
[22] Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014.
129. The Tribunal therefore sets aside the cancellation decision and substitutes a decision that the visa is not cancelled.
DECISION
130. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.
Jane Marquard
Member

Attachment A
Extract from Notice of Intention to Consider Cancellation 21 June 2018
Background of your immigration history
Your arrival
On [date] June 2010, you arrived by boat without a visa to an excised place, namely Christmas Island. You were deemed to be an Illegal Maritime Arrival (IMA) and placed into immigration detention. You identified yourself as [Alias 1], and arrived along with your nowformer wife, [Ms A] (DOB [date]). You stated that you and your former wife were stateless Faili Kurds.
Biodata Form
On [date] June 2010, you completed a Biodata Form in the Farsi (Persian) language with the assistance of an interpreter. You stated the following information:
·     Your name as [applicant name], born on [Date 1].
·     You were born in Iraq, as a stateless Faili Kurd and that you did not have citizenship.
·     You had resided in Iran for [number] years.
·     You held a ‘White Card’ however, no other details were provided.
·     You attended primary school and had worked as a labourer.
·     Your father is [name] (aged [age] years old) but you did not answer the question as to where he was living.
·     Your mother, [name], was [age] years old and residing in Iran.
·     You are an only child with no siblings.

Entry Interview
On 11 July 2010, you participated in an Entry Interview with an officer of the Department, and with the assistance of an interpreter in the Kurdish language. You provided the following information in your Entry Interview:
·     Your identity is [applicant’s name], born on [Date 1] in Baghdad, Iraq.
·     From 1983-1984, you resided in Baghdad, before relocating to Iran where you resided until you travelled to Australia in 2010.
·     You did not have any identity documents.
·     You did not attend school.
·     You declared various employment including [deleted].
·     You married [Ms A], on [date] July 2009.
·     Your father [had] died 10 years prior (approximately 2000), of a heart condition/natural causes. Your mother, [had] died seven years prior (approximately 2003) of natural causes.
·     You did not have any children or any siblings.
·     You did not know anyone in Australia; and that neither you nor any of your family members had previously applied for a visa for Australia.
·     Your emergency contact was [Ms D], who you stated was a family friend of your mother.
·     Your mother told you your family left Iraq when you were young, because there was ‘conflict between groups in Iraq’.
·     You left Iran on a fraudulent Iranian passport that recorded your name and photograph.
·     You left Iran because you are Kurdish. You left Iran after the last election because the security was tightened and you could not find any work and no one would hire you without identity documents.
·     You stated that if you were to return to Iraq or Iran, you were sure you would be arrest and spat on, as it is a crime to leave the county without a genuine passport. You stated you would be imprisoned. You stated Iraq was ‘not my country’ and you could not speak their language and you had nowhere to live in Iraq.
·     If you returned to Iran you would be imprisoned, tortured, and you would have to sleep on the street.
·     You have no identity in Iran, you wanted a secure job and that your former wife also liked to wear particular types of clothes; and if you were wearing short sleeves, you would be arrested in public.

Refugee Status Assessment
On 21 August 2010, you made a request for a Refugee Status Assessment (RSA). In your supporting Statutory Declaration dated 04 August 2010, you made the following statements:
·     You were born in Iraq in [year], and illegally moved to Iran as a young baby with your
·     parents.
·     You cannot return to Iran or Iraq, as you do not hold citizenship in either country.
·     You left Iran to seek security and ‘a place which could give [you] an identity’.
·     Your father died when you were a teenager and you do not remember him very well as he was often not at home.
·     Your father became unwell and in 1995, you had to start working to support your parents.
·     Your father was sick for two years before he died.
·     Your father taught you how to sell [products] that came from overseas. Your father never had a Green Card, but you did not know the story as to why.
·     You would sell [products] in [a Bazaar], close to your home. The Basij would come to the market and demand bribes or take items from your stall. The Basij were aggressive towards you, and would kick and hit you with their batons.
·     When you were not working in the bazaar, you worked on private construction sites in Tehran, which you did not have permission to do, as you had no documents.
·     As a stateless Faili Kurd, the Iranian government would be pleased to see you leave Iran and that your life was impossible in Iran.

On 11 October 2010, a delegate of the Department made the finding that you and your former wife were not deemed to be persons to whom Australia has protection obligations as set out in Article 1A of the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol).

Independent Merits Review

On 22 October 2010, you lodged a request for an Independent Merits Review (IMR) of your RSA outcome. The delegate recorded the following findings in the IMR decision record:
·     On 24 May 2011, you were interviewed at the Administrative Appeals Tribunal (AAT), Perth, in relation to your IMR.
·     You stated you were approximately [age] old when your parents took you to Iran and that you have not been to Iraq.
·     Your parents were both stateless Faili Kurds, who are deceased. Your father died 10 years prior (approximately 2000) and your mother died seven years ago (approximately 2003).
·     When the IMR delegate asked you why you preferred a Farsi interpreter for your interview, you stated the initial Kurdish interpreter did not properly convey your statements to the delegate.
·     You did not know where your parents had lived in Iraq but were sure they did not have documents and were not citizens of Iraq.
·     You do not have a birth certificate and have never held a Green or White Card in Iran.
·     You did not apply for a Green Card because you were scared you would be questioned about why you had resided in Iran for such a long period of time. You saw other Faili Kurds efused their Green Card and you were fearful you were be arrested and imprisoned, or falsely accused of being a terrorist.
·     You could not go to school because you did not have any documents.
·     Your father travelled illegally to Iraq with the help of friends, and returned with [products].
·     You began working [at] aged [age] or [age], and when your father went to sell the above goods, you went with him to learn how to sell. You stated your father made a lot of money doing this, and you rented a house in Iran that was in the name of an Iranian friend of your father.
·     After your father died, you continued to sell items at a bazaar in Tehran. You then began working [in] the [specified] industry, and found it easy to obtain employment because your work was of a good standard. You obtained jobs because it was cheaper for your employers to pay you, as you had no documents. When the authorities came to check the documents of people working, you were either told to stay away from the [workplace] or paid bribes, which your employers later deducted from your pay.
·     When you could not work in the winter, you returned to selling goods at the bazaar or working in a [workplace]. You claimed you paid a third to a half of your pay, to the Basij every day; and that they ridiculed you, beat you and threatened you.
·     Your marriage to [Ms A] was not registered, because you are both stateless.

Your former wife was also interviewed on the same day. The IMR delegate noted the following findings in the decision record:
·     [Ms A] stated her mother is Kurdish and her maternal grandfather was from [Country 1]. Her mother was born in Iran but did not hold Iranian citizenship, but [Ms A] did not know if her mother has Iranian papers.
·     [Ms A]’s father was born in Iraq but she did not know if he had Iraqi nationality or identity papers. [Ms A] stated that he was expelled from Iraq during Saddam Hussein’s reign.
·     [Ms A] did not know if her parents held Green or White Cards in Iran, stating that having a Green Card was not important, because it did not allow you to go anywhere or participate in any activities.
·     [Ms A] did not have any formal schooling, however a neighbour taught her to read and write in Farsi and use a calculator.
·     [Ms A] stated she was constantly ridiculed by people as a child for dressing as a traditional Faili Kurd, so she stayed at home. [Ms A] stated as a child, she and her brother went to play in a park where a man followed them and harassed them for being stateless Faili Kurds.
·     As an adult, [Ms A] was arrested by the Basij on the pretence that the way she dressed was incorrect. The Basij held her in a room for several hours before letting her leave.

On 14 July 2011, a member from the IMR found you to meet the definition of a refugee as set out in Article 1A of the Refugee Convention and the Protocol. As a result, you were recognised as a person to whom Australia owed protection obligations.
Protection visa application
On 31 August 2011, you lodged an application for a Protection visa. On this application form, you declared your identity as [applicant’s name] (DOB [Date 1]) and that you were not known by any other names. Your former wife, and child, [Child B, mother’s surname] (DOB [date]) were also included as members of your family unit. You relied on your RSA Statutory Declaration dated 04 August 2011 in your claims for protection as outlined above.
Based on your claims of being a stateless Faili Kurd, in addition to meeting all other criteria, you, your former wife and your child were granted a Protection visa on 06 September 2011.
Subsequent information after the grant of the Protection visa
On 22 May 2018, a delegate from the General Cancellations Network referred your case to the Department’s Complex Identity Advice team for further investigation regarding your claimed identity as [Alias 1] (DOB [date]). On 13 September 2019, you participated in an Identity Interview via video conference at the Department’s Sydney office. The Identity delegate asked you a number of questions, in part in relation to:
·     Your name
·     Your date of birth
·     family composition
·     Your life story
·     Your identity documentation

The Identity delegate advised that you needed to answer questions truthfully and provide as much information as possible to assess your identity.
On 07 May 2020, the Department finalised an Identity Assessment Report regarding your identity. The Department concluded that the identity of [Alias 1] (DOB [date]) that you used when applying for your Protection visa is ‘Not Supported’.
Identity Interview Findings
Your former wife’s stateless Faili Kurd claims
Since your arrival on Christmas Island, you have maintained that you and your former wife are stateless Faili Kurds. On 18 June 2010, your former wife’s mother [and brothers] arrived as IMAs on Christmas Island. [They] also claimed to be stateless Faili Kurds. [They] were subject to baggage examinations in 2015 and 2016 respectively by the Australian Border Force (ABF), in which ABF found each person to be in possession of genuinely issued Iranian passports.
Country information indicates in order to apply for and be granted an Iranian passport, Iranian nationals must hold precursor documents such as an Iranian shenasnameh and a National Identity card. Accordingly, the Protection visas of [your former wife’s brothers] were cancelled in 2019 by the General Cancellations Network, for providing incorrect information in relation to their claims as stateless Faili Kurds. Both cancellation decisions were upheld by the AAT in 2019 and 2022 respectively.
Additionally, your former wife’s father [lodged] an application for a Combined Partner (subclass 309/subclass 100) visa on 05 January 2014. In this application, [he] provided his Iranian shenasnameh (birth certificate) and Iranian passport.
[Your former wife’s father’s] shenasnameh records your former wife’s identity as [Ms A] (DOB [date]). According to Article 976 of the Civil Code of the Islamic Republic of Iran (the Civil Code), Iranian citizenship stems from the paternal line, and as a result, the Civil Code confirms your former wife is also 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.
These significant attempts made by your former wife’s family to misrepresent themselves as stateless Faili Kurds in order to obtain a Protection visa, undermine the credibility of your own claims of being a stateless Faili Kurd.
Inconsistencies in your life story
Notwithstanding the above discrepancies, your own claims regarding your life story have been inconsistent and contradictory.
Documentation
Throughout your interactions with the Department, your claims regarding identity documentation have varied. On your Biodata Form, you stated you held a White Card. In your Statement of Claims, you stated neither you, nor your father ever held a Green Card. Conversely, during your Identity Interview, you stated your parents held ‘Green Cards in Iraq’. Relevant country information from the Department of Foreign Affairs and Trade (DFAT) noted in 2014 however that the Iranian government issued Green Cards to Iraqi refugees.
During your Identity Interview, you also stated that neither you nor your mother held a White Card in Iran, because they were not important. This claim is contradicted by country information, which records that Iraqi refugees in Iran needed White Cards in order to attend school, receive medical treatment, and register births, deaths and marriages. I do not find your claims that you resided in Iran for [number] years, without any form of documentation, to be plausible.
During your RSA process, you stated that despite your illegal status in Iran, you and your former wife continued to work to pay for the annual and ongoing rent of your house, at approximately 12 million tomans per year. In addition, you stated to the RSA delegate that you were able to save approximately USD18,000 for your and your former wife’s false Iranian passports and travel to Australia.
According to the Iranian Ministry of Labour’s mandated minimum wage, the average monthly wage in 2018, equated to approximately USD220 per month. If you were a stateless Faili Kurd as claimed and experienced difficulties with obtaining employed due to your claimed statelessness, I consider you would likely not have been paid a minimum wage, and your income would be significantly less than USD220 per month. It would appear that your claims of paying USD18,000 to a people smuggler is an exaggerated claim, or it is more likely that you did not in fact, pay a people smuggler to facilitate your travel to Australia.

As identified above, your former wife is an Iranian citizen. I therefore consider it is unlikely she left Iran on a fraudulent passport, but rather a genuine passport that recorded her correct identity and nationality.
According to a translation of an immigration detention property note recorded on your arrival to Christmas Island, you travelled between Tehran and Dubai ‘with an Iraqi passport’. Reasonably, I find it possible that you did not depart Imam Khomeini International Airport on a fraudulent Iranian passport as claimed, noting that in 2018 DFAT reported:
“Iranian identity documents include sophisticated security features and would be difficult to manufacture for fraudulent use. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses that

sophisticated border control procedures would make it difficult to use such a document in
order to leave Iran”

I consider that you have continued to conceal your true identity, by providing conflicting claims regarding the document you purportedly used to depart Iran.
As further evidence of your contradictory claims, your former wife posted a photograph on [social media] in 2015 captioned “I [love heart] Iran’, depicting the two of you at a sporting event, wearing the Iranian colours.
You have stated during your Entry Interview and your IMR process, that your family voluntarily left Iraq shortly after you were born. Additionally, during your Identity Interview, you claimed your father, was born in approximately [year] and that your grandfather was born in Iran, but resided in Iraq. Reasonably, given your parents did not leave Iraq until the 1980s, it is probable that your father and/or your grandfather took part in the 1957 census, which resulted in Iraqi citizenship being granted to those that participated.⁸ As such, you may have acquired Iraqi citizenship under Article 3(a) of the Nationality Law (2006), by being born to an Iraqi citizen parent. This would align with your detention property note, which recorded you travelled from Tehran to Dubai using an Iraqi passport.
The only document you have claimed to have held, but have not provided to the Department, is an Iranian driver’s licence. However, you stated during your Identity Interview, that you paid someone in Australia to make this licence for you. Therefore, this document cannot reliably attest to your identity.
To date, you have not provided the Department with any credible or verifiable documentation that would support your claimed identity as [Alias 1] (DOB [date]).
Your name
You stated on your arrival to Christmas Island that your name is [Alias 1]. However, information available via [social media] at the time of the Identity Assessment Report recorded your name as ‘[Alias 2]’. Relevantly, this profile was named ‘[name]’. Further, a comment recorded by an individual named [Mr F], refers to you as [Alias 3], on a photograph of you and your son, [Child B], posted by your former wife’s paternal cousin, [Mr G] (DOB [Date 2]). [Mr G] arrived as an IMA on the same boat as you and your former wife on [date] June 2010 however did not identify his relationship to [Ms A].
Additionally, the Department has information that [Mr C] (DOB [date]) attested to knowing you for a period of more than 12 months on your application for a New South Wales (NSW) Driver’s Licence lodged in 2012. Relevantly, departmental records indicate [Mr C] referred to you as [Alias 3] and his uncle, in his own matters before the Department. As further evidence of your familial ties to [Mr C], he also referred to your former wife, [Ms A]; and [Mr G] (DOB [Date 2]) as his cousins.
While in community detention, your former wife gave birth to your son, [Child B, mother’s surname] (DOB [date]). Further to the above concerns, country information records that children in Iran or Iraq, inherit their father’s surname. It would appear unusual that you decided to name your child, with the family of your former wife only.
Departmental records further indicate that during a phone call with your emergency contact, [Ms D], a staff member from the Beirut office asked twice about [Alias 1]. On both occasions, [Ms D] gave information about her son, [Alias 3], who had left Iran.
Based on information before me, I consider it is likely that your family name is also [name],
which you have failed to disclose to the Department.
Family composition
On your arrival and during your interactions with the Department, you have maintained that you are an only child and that your parents are deceased. However, it appears that you may have other undeclared family members residing in Iran and in Australia.
As noted above, [Mr C] (DOB [date]) declared you as his uncle in his own matters with the Department. However, given your age proximity to [Mr C], it would appear unlikely that [Mr C] is your nephew if you maintain you do not have any siblings.
Possible siblings
Relevantly, your former wife’s paternal cousin, [Mr G] (DOB [Date 2]), listed his mother as [Alias of Ms D]. When the Department’s Beirut office called [Alias of Ms D] in 2018, it was found that this person appeared to match your emergency contact of [Ms D], who was also contacted by the Beirut office on the same day. According to departmental records, [Ms D] terminated the phone call when the departmental staff member stated they were calling from the Department of Home Affairs (Australia), possibly indicating that she was the same person (as [Alias of Ms D]). As previously stated, [Alias of Ms D] disclosed to the Department that she had a son named [Alias 3] who had also left Iran.
I consider the difference in the spelling of the name [Alias of Ms D]/[Ms D] is due to transliteration, and that that these individuals are likely to be the same person. Therefore, it would appear that [Mr G] (DOB [Date 2]) may also be your brother and that you share the same mother.
In his own RSA process, [Mr G] (DOB [Date 2]) declared his family composition as:

Relationship Name DOB Place of birth

Father [name] [year] Baghdad

Mother [Alias of Ms D] [year] Baghdad

Brother [Mr H] [year] Tehran

Brother [Mr I] [year] Tehran

Sister [Ms J] [year] Tehran
[Mr G] concealed his relationship to your former wife until his own Identity Interview in 2015. During his Identity Interview, [Mr G] disclosed that he is your former wife’s paternal cousin.
[1105] CL1968727 - NOICC - s116(1AA) - XA866 - AL
Case Number: 2305522

As further evidence of your likely familial relationship with [Mr G] (DOB [date]), you and [Mr G] have both remitted money to individuals named [Mr H] and [Ms J] in Iran, labelled as ‘family support’.
Your parents
Based on the above information and the assertions that you appear to be directly related to [Mr G], it would also appear that you may have given incorrect names for your parents. Namely, you declared your father as [name] and that he died in 2000; and your mother as [name] and that she died in 2003. As previously indicated it would appear that your mother’s name is [Alias of Ms D]/[Ms D] and that she is alive and residing in Iran. Relevantly, the Iranian shenasnameh of your former wife’s father [also] records [Ms A] and [Mr G]’s maternal grandfather as having had the family name [Alias 1 surname]. This name is also the same as [Mr G]’s mother as he declared during his RSA process. It would appear that you have logically chosen [Alias 1 surname variation] as your own family name, following likely mother’s surname as recorded above.
In your interactions with the Department, your claims regarding your father’s death have been inconsistent. In your Identity Interview, you stated you were [age range] when he died, compared to your Statement of Claims, in which you stated your father died in 1997, and further, during your Entry Interview when you stated your father died in approximately 2000.
According to social media (namely, [social media]), both [Mr G] and his brother, [Mr H] have each posted the same photograph of an individual, naming the person depicted in the photograph as their father, who passed away in 2015. Your former wife also posted two other photographs of shrines for this person in August 2015. In September 2015, [Mr G] declared to the Department that his father had died 40 days prior. It would therefore appear that your father was likely not deceased prior to your arrival on Christmas Island.
Given the above information surrounding your likely familial relationship with [Mr G], it would appear in all of your interactions with the Department that you have provided misleading information regarding your family composition.
According to the audio recording of your Identity Interview, you terminated the interview (stating it was time to take medication, accompany your friends to religious activities and because your mobile phone battery was almost flat) and further information about your identity could not be put to you for comment. Since your Identity Interview on 13 September 2019, you have not interacted with the Department.

Relationship	Name	DOB	Place of birth
Father	[name]	[year]	Baghdad
Mother	[Alias of Ms D]	[year]	Baghdad
Brother	[Mr H]	[year]	Tehran
Brother	[Mr I]	[year]	Tehran
Sister	[Ms J]	[year]	Tehran