2101738 (Refugee) [2023] AATA 1281 (17 March 2023)

Last Updated: 19 May 2023

2101738 (Refugee) [2023] AATA 1281 (17 March 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Kamran Ghanbari (MARN: 0848517)

CASE NUMBER: 2101738

COUNTRY OF REFERENCE: Stateless

MEMBER: Nicole Burns

DATE: 17 March 2023

PLACE OF DECISION: Melbourne

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

Statement made on 17 March 2023 at 5:43pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless/Iran – delegate not satisfied as to identity – Faili Kurd born in Iraq and moved to Iran at young age – early life in small villages and lack of documentation – no attempt to obtain Iraqi or Iranian citizenship – long-term residence in Tehran and lack of knowledge about stateless Faili Kurds and their documentation – work and driver’s licence, and children’s births not registered – departure on fraudulent passport – daughter’s return and marriage to Iranian citizen – concerns go more to claimed statelessness, not identity – mere suspicion not sufficient to establish ground for cancellation – young age at relevant times, limited education and elapse of time – reasonably consistent oral evidence – country information – passport and exit procedures at the time – joint hearing with wife’s cancellation review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 107, 116(1AA)

CASE
Zhao v MIMA [2000] FCA 1235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2. The delegate cancelled the visa under s 116(1AA) because they were not satisfied as to the applicant’s identity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3. The applicant appeared before the Tribunal on 6 October 2022 to give evidence and present arguments about the issue in his case. The hearing was combined with his wife’s ([Mrs A]) cancellation matter.^[1] The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
4. The applicant was represented in relation to the review. He participated in the hearing via the telephone.
5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

Relevant background (including the NOICC particulars)

6. The applicant arrived in Australia [in] March 2010 by boat (along with his wife, two daughters^[2], and his wife’s [specified family members]). He claimed to be [the applicant], born in [Town], Iraq on [Date], who moved to Iran when young (around [Age]) after his parents were expelled from Iraq. He also claimed to be stateless, never having obtained Iranian nationality.
7. The applicant was interviewed not long after his arrival (the entry interview) and maintained his name, date of birth (DOB) and stateless status. He applied for protection based on being a stateless Faili Kurd from Iran on 27 August 2010, and was granted a protection visa on that basis on 1 September 2010.
8. On 4 September 2014 the applicant lodged an application for Australian citizenship conferral and was interviewed on 22 June 2015. Concerns arose about the applicant’s claimed identity during this process for several reasons, including due to: his limited knowledge about stateless Faili Kurds and being undocumented in Iran; the implausibility of being a resident in Tehran for decades without identity documents; a lack of documents attesting to his claimed identity; and a failure to provide related documents to the Department when requested, such as his daughter ([Ms C]’s) marriage certificate and/or shenasnameh^[3] following her marriage to an Iranian citizen in 2012 and (permanent) return to Iran.
9. The applicant was sent letters by a Departmental officer after his identity interview in mid-2015 requesting he provide the following documents to confirm his family’s identities:
   1. Original death certificates for his parents.
   2. Any documents from his home country to support his identity (for example marriage certificate, medical/hospital records, school certificates, his children’s birth certificates or registration).
   3. Contact details for his daughter, [Ms C], and her family in Iran, so they could present their Iranian identity documents to the Australian Embassy in Tehran.
10. The applicant did not provide a response. On 10 September 2015 his identity assessment was finalised and the outcome was that the identity claimed at the protection visa stage (of [the applicant], DOB [Date]) was not supported^[4].
11. On 21 March 2019 the Department sent the applicant a notice of intention to cancel the approval of his application for conferral of Australian citizenship (NOICCA), which outlined the Department’s concerns about his claimed identity. The applicant’s representative provided a written response to the Department dated 20 May 2019. Although a separate process, parts of the NOICCA and aspects of the representative’s response are set out in the notice of intention to consider cancellation (NOICC) in this case (and in the representative’s response to the NOICC), detailed where relevant below.
12. On 31 May 2019 the applicant’s Australian citizenship by conferral was cancelled.
13. On 24 November 2020 the delegate sent the applicant a NOICC in which the applicant was advised the delegate was considering cancelling his protection visa under s 116(1AA) of the Act, because he was not satisfied about his claimed identity. (This was the second NOICC issued to the applicant, the first being issued on 15 August 2017, which was superseded by the 24 November 2020 notice.) The representative provided an email in response to the first notice on 24 August 2017 in which he submits that the applicant maintains his identity as indicated at the protection visa stage.
14. The November 2020 s 107 notice recorded that on 1 September 2010 the applicant was granted a protection visa based on being a stateless Faili Kurd known as [the applicant], born on [Date]. However, since then concerns have been raised casting doubts about his claimed identity, as set out in the NOICC, and summarised as follows:

Claimed statelessness

• At his citizenship interview the applicant was unable to demonstrate any knowledge about stateless Faili Kurds other than to state that neither Iran nor Iraq recognised them as citizens, and that his parents did not have citizenship.
• When asked if his parents had Iraqi citizenship, the applicant stated that no one in his village had any documents, and that he did not apply for Iraqi citizenship and did not attempt to apply for Iranian citizenship.
• The applicant said he made no attempt to change his undocumented, stateless status and was unaware of anyone within his village attempting to obtain either Iraqi or Iranian citizenship.
• The (citizenship) delegate looked up the applicant’s previous addresses (in Iraq and Iran) he provided at the time of his arrival and found them to be more substantial in terms of demographic size than ‘mere villages’ as he had claimed. They found this information inconsistent with the applicant’s statements about being raised in a village where no one held documents, particularly in relation to the 12-month period when the applicant (a child at the time) stated he lived in a village in Ilam, Iran.

Inconsistent or implausible information

• The applicant, who claimed to have lived in Iran since his arrival in 1980 (as [an Age] year old) until his departure in 2010, has provided inconsistent or implausible information about significant events and various aspects of his life during this period, as follows.

The applicant’s education

• The applicant claimed at his entry interview to have attended primary school in [Location] (a countryside area in Iran) from [Year] to [Year]. However, in his protection visa application he stated he had only attended two study classes informally at night from 2005 to 2007.
• Considering he was born in [Year], the delegate considered it was highly unlikely that he commenced primary school aged 12.

No overseas identity documents

• The applicant was unable to explain why he was not documented (including from the age of 15 when required to have his own documentation) at the citizenship interview.
• The applicant was asked a number of questions during his interview relating to how it was that he was undocumented in Iran, despite the majority of Iraqi refugees being documented. He responded that his father had thrown away the Green card because it was useless and had ‘no validity’. When asked what was on the card, he replied, ‘I was illiterate’, but then stated that the card displayed the name of his father, as well as his own name and date of birth. He was again asked about his own card, and he stated that he had no card and ‘they had it and they took it’, but then said, ‘maybe I did have one’.
• He was unable to state the benefits the Green card allowed, and did not know the name of the issuing authority, claiming not to know anything about the cards because they were not useful. Further, he did not know what documentation refugees in Iran are required to hold and was unable to demonstrate any knowledge about the Amayesh (refugee registration card known as a White card) which replaced the Green card system in 2002.
• As a long-term resident in various districts of Tehran, the delegate found it highly unlikely the applicant would have been able to avoid registering his children, rent a property, hold a driver’s licence for work purposes and be employed without any documentation attesting to his status in Iran. Country information is referenced which shows it is a mandatory requirement that all children born in Iran are registered within 15 days of their birth regardless of the nationality of their parents and the delegate considered it implausible that he would not have been obligated to fulfil the registration requirement regarding the birth of his two children.
• Country information referenced indicates: the Iranian authorities require all people in Iran, including Iraqi refugees, to hold appropriate identification; that the authorities have a vested interest in ensuring a high rate of documentation within their borders; and that since 2002 Iraqi refugees have been issued with a White card which infers benefits including access to schooling, rental properties, medical insurance and the ability to register births, deaths and marriages with the relevant Bureau.
• DFAT advises that the vast majority of Faili Kurd refugees in Iran have valid Amayesh refugee registration cards.^[5]
• Considering his overall life story, the delegate considered it highly unlikely the applicant could have remained undocumented after 2002 without significant barriers to accessing basic necessities such as housing, employment and public health care in Tehran.
• The delegate considered it more likely the applicant was issued a White card in or around 2002 to ensure that Iranian registration records were current, and noted that it was therefore reasonable to expect him to have documentation attesting to his identity, which he has failed to provide to the Department.
• The applicant’s protection claims to have been threatened by the Basij after having handed in his Green card to the authorities in 2005 conflicts with his claims of being persecuted due to not possessing documentation which he claims had no value, the delegate reasons.

Deceased parents’ burial in Iran

• To have buried his deceased parents in [Location] cemetery in Tehran (as the applicant indicated at his citizenship identity interview) it is a mandatory requirement that a burial certificate be provided in order to register the burial. The delegate noted at the time of his citizenship identity interview, the applicant had indicated that he was able to obtain these documents from his family in Iran, however, to date he has not provided these documents to the Department.

Departure from Iran on a fraudulent document

• The applicant claimed during the entry interview that he was provided with a passport in someone else’s name to facilitate his departure from Iran. He also claimed to have organised similar passports for other family who travelled with him.
• The delegate found the applicant has not provided a plausible explanation about his method of departure from Iran, particularly through Iranian international airports which are known to be very secure, and given the passport details of departing passengers are electronically matched with official records^[6].

Travel to Iran

• The delegate did not accept that the applicant’s travel to Iran (in 2012) on an Australian Titre de Voyage (TDV), which showed entry and exit stamps, is sufficient evidence to support his claimed stateless identity. The delegate considered it plausible the Iranian border authorities may have been misled as to his true identity through incorrect name and places of birth and the TDV, which shows he is not an Iranian national.

Social media

• The applicant’s daughter, [Ms C], indicated that she attended Vocational High School during 2007 to 2008 on social media, which would require documentation. The delegate found this to be inconsistent with the applicant’s statement that in 2005 he attempted to renew the Green card for his family but was refused by the Iranian authorities and has been stateless since.
• [Ms C]’s [Social media] page records her DOB as [Date], contradicting the applicant’s statement that her DOB is [Date].^[7]
• The applicant was provided with an opportunity following his Identity interview to provide evidence of [Ms C]’s Iranian-issued identity documentation. He was advised by the Department that his daughter’s shenasnameh would include details of her parents and confirm their status as stateless persons. To date, he has not provided the requested documents to the Department.

Daughter’s marriage to an Iranian national

• At his citizenship interview the applicant claimed his daughter was married to an Iranian citizen with a shenasnameh ([Mr D]) by a ‘sihreh’ or temporary marriage. However, this claim was withdrawn by his wife and daughter ([Ms B]) at their interview, who conceded that [Ms C] and her husband were permanently married.
• This is consistent with marriage photographs observed on [Ms C]’s [Social media] page which indicate a permanent marriage (as also represented by their child), and the fact that she has not returned to Australia despite having claimed Australia’s protection from Iran.
• The applicant claimed that his daughter was living in Iran using her Australian TDV after a temporary marriage. However, this is not plausible because she would not have a right to remain permanently in Iran as the holder of an Australian TDV.
• The delegate considered it more likely [Ms C]’s marriage to an Iranian national entitles her to Iranian citizenship. Therefore, it is highly likely the applicant’s daughter holds identity documentation which, if provided to the Department, would assist in establishing the applicant’s identity, they reasoned.

Iranian driver’s licence

• The applicant stated at the time of his citizenship identity interview that he was driving for work purposes in Iran, however, he did not hold a driver’s licence. The delegate considered it implausible that he would drive a vehicle for work purposes without a valid Iranian driver’s licence and be willing to risk the serious consequences of being caught by the police without proper documentation.

15. Additionally, it is noted in the s 107 notice that the delegate considered the information the applicant had provided in relation to his identity to be ‘contradictory, incomplete and inconsistent’ and therefore unreliable in establishing his true identity. Further, the delegate considered the information he provided in relation to his identity is not supported by verifiable documentation, noting he has failed to provide the requested documentation to assist in establishing his true identity.
16. These concerns, combined with the fact there was no other documentation which satisfactorily evidences the identity of [the applicant] (DOB [Date]), led the delegate to consider that the applicant’s identity is not known, and that there appeared to be grounds for cancelling his visa under s 116(1AA) on the basis that they were not satisfied as to the applicant’s identity.

Response to the NOICC

17. In response^[8] to the s 107 notice which sets out these concerns, the applicant (via his representative) maintains that the identity under which he has been granted his protection visa was (and is) his identity. The representative addressed the specific concerns raised in the NOICC (detailed where relevant below) and submitted there are no grounds for cancellation in the applicant’s case.
18. The representative argues that the applicant (and his family) history of statelessness is not set aside by any of the matters raised by the delegate in the NOICC, and none merit the threat of cancellation. He adds that the basis of the concerns is drawn substantially from suppositions about what the delegate believes may be the case without evidence to support their view.

Decision to cancel

19. The delegate decided to cancel the visa on 11 February 2021, as he was not satisfied as to the applicant’s identity under s 116(1AA) of the Act. The delegate considered the responses provided to the NOICC, including the explanations proffered for several inconsistencies in aspects of the applicant’s evidence; however, he ultimately did not accept them.
20. Having found that grounds existed for cancellation, the delegate then considered whether the visa should be cancelled. The delegate noted the matters raised in the documents submitted in response to the NOICC but stated that, having weighed all the relevant factors, he was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

Review of the cancellation decision

21. The Tribunal discussed the contents of the NOICC with the applicant at hearing. He confirmed his name, DOB and statelessness status (and relevant background) as set out in his protection visa application, and disagreed with the delegate’s finding in relation to his identity that he is not who he claims to be. Any inconsistencies in aspects of his evidence about his life story in Iran (and subsequently) over several interactions with the Department he has attributed to mistakes, lack of knowledge about certain matters at the time and fear, and/or alleges the inconsistencies are minor. These inconsistencies are considered in more detail below when determining whether the ground for cancellation has been made out in this case.
22. At hearing the Tribunal sighted the applicant and his wife’s Australian travel documents (titre de voyage/TDV) used to return to Iran for his daughter’s marriage in 2012 (copies of the relevant pages were submitted). These show exit and entry stamps and Iranian visas, indicating they used those documents to enter and depart from Iran at that time.
23. At hearing the representative submitted that the applicant is not an Iranian and is undocumented, which is what he has consistently claimed, and why he does not have documents (and is unable to access them) to prove his stateless status.

Does the ground for cancellation exist?

24. The applicant was granted a Class XA Subclass 866 protection visa on 1 September 2010. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s 116(1AA). A visa may be cancelled under s 116(1AA) if the Minister or the Tribunal is not satisfied as to the visa holder’s identity. An example provided in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014^[9], of when this ground may be made out is if two or more documents or pieces of information about a person’s identity have been given on behalf of, or in relation to, the visa holder that are inconsistent with each other and it is not possible to form a conclusion regarding which document or piece of information is genuine.
25. 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.
26. Departmental guidelines indicate that this ground will not be applicable if, for example, a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed. In addition, the ground is not applicable where, in response to a notice under s 119 of the Act, the visa holder satisfies the delegate as to their identity.^[10] 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.
27. The Guidelines also caution that ‘In deciding whether they are satisfied as to a visa holder’s identity, delegates must consider the visa holder’s individual circumstances, and take into account the fact that some visa applicants will have had legitimate difficulties in obtaining evidence of their identity, particularly those who have refugee status.’^[11] It is only applicable where there is conflicting information as to the visa holder’s identity and the decision-maker cannot be satisfied as to which, if any, is the true identity. The policy stipulates that to be satisfied as to a stated identity, Department officers must have concluded that it is more likely than not that the visa applicant is who they say they are, that is, the officer has reached a 'level of confidence' in the visa applicant's stated identity.^[12]
28. 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.^[13]
29. In doing so the Tribunal notes relevant case law that a mere suspicion is not sufficient to establish the ground for cancellation. In Zhao v MIMA (Zhao), the Full Federal Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. ... A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.^[14]

30. The Tribunal accepts the applicant is a Faili Kurd. He has consistently claimed as such and this was not raised as a specific issue in the NOICC.
31. At issue in this case is whether the applicant’s claimed identity as [the applicant], born on [Date], is his actual identity. As mentioned, doubts about his claimed identity have arisen for several reasons, including because of his limited knowledge about stateless Faili Kurds and being undocumented in Iran; the implausibility of being a resident in Tehran for decades without identity documents; a lack of documents attesting to his claimed identity from before he arrived in Australia; and a failure to provide related documents to the Department when requested.
32. The applicant (and his representative) provided explanations where possible about such inconsistencies and vagueness, including the context in which they occurred. The representative argues that the Tribunal must consider that, given the applicant’s background as a stateless Faili Kurd with limited education, it is unsurprising he had limited knowledge about such matters, and is unable to produce identity documents due to this status.
33. The Tribunal has taken into account these submissions, the applicant’s oral evidence, his response to the NOICC and any other relevant material when determining whether the grounds for cancellation (in this case not being satisfied as to the applicant’s identity) are made out.
34. The Tribunal considers the concerns about the applicant’s identity as set out in the NOICC are matters that go more to questions about his claimed stateless status at the protection visa stage, not necessarily to his identity. In the Tribunal’s view, the applicant’s nationality, including concerns around his status as a stateless, undocumented Faili Kurd from Iran, do not directly affect his identity, which is essentially established through his name, date and place of birth and family relationships: in the Tribunal’s view these have not been brought into question in any substantial way.
35. Additionally, the Tribunal notes several concerns raised by the delegate in the cancellation matter were also before the Refugee Status Assessment (RSA) delegate, who ultimately found the applicant was owed protection as a stateless Faili Kurd. The RSA delegate did not indicate any substantial concerns with the applicant’s claimed identity.
36. Nonetheless, the Tribunal has considered the specific concerns raised by the delegate in the s 107 notice, which led them to not be satisfied as to the applicant’s identity, as follows.
37. Claimed statelessness. The s 107 notice records that the delegate was concerned about: the applicant’s limited knowledge about stateless Faili Kurds (other than to say that his parents did not have citizenship and neither Iran nor Iraq recognised them as citizens); the fact he said at interview that he did not have Iraqi citizenship and did not apply for it or attempt to apply for it, and that no one in his village had any documents; and because previous addresses the applicant claimed to live in Iran were more substantial in size than ‘mere villages’ as he had claimed.
38. In response to the NOICC it was submitted that the applicant was [Age] when Saddam Hussein conducted the ‘666 purge’ causing an estimated 25,000 deaths and the expulsion of several hundred thousand Iraqi Kurds who were stripped of their Iraqi citizenship, and forced to march across the border into Iran. He submitted that it is therefore unsurprising that the applicant has limited knowledge of these events, which occurred during his childhood, and talks in generalisations about people in his village lacking documentation.
39. In response to the delegate’s surprise that the applicant did not seek citizenship, the representative noted that he was an expelled Faili Kurd, ‘none of whom were granted Iraqi citizenship because Hussein would not countenance such an action’. The representative adds that, as for many years after the purge neither Iraq nor Iran recognised the displaced Iraqi Kurds, it was not feasible for displaced Iraqi Kurds to apply for citizenship in Iran. The representative also refers to country information indicating that many Faili Kurds who were forced into Iran remain stateless.^[15]
40. At hearing the applicant reiterated that he was born in Iraq, expelled to Iran when young, and lived there until he departed the country in 2010. He never obtained Iranian (or Iraqi) citizenship and was only able to rent property, go to night school (Nezhat) occasionally, and send his daughters to Nezhat occasionally (among other things) by paying money to do so. His daughters were born at home and he does not recall registering their births. The applicant’s evidence in this regard, whilst not overly detailed, was reasonably consistent with what he had told the RSA delegate.
41. Even if the applicant’s knowledge about being a stateless Faili Kurd was limited and vague at the identity interview, and earlier he may have downplayed the size of the places he had lived in (for example), this does not, in the Tribunal’s view, undermine his claims to be [the applicant] born on [Date]. There could have been several reasons for his vagueness about these matters at the identity interview, including the fact it took place several years after he arrived in Australia. In addition, as someone with limited education and agency as a stateless Faili Kurd, he appears to have not been particularly proactive in finding out what options there were, and potential benefits, in trying to regain Iraqi citizenship (for example) and/or identity documents in Iran, such as a White card. This was apparent at hearing: his responses were limited and he had not been proactive about obtaining documentation in the past in Iran (or Iraq), feeling it was futile to do so, and had still not even looked into doing this.
42. Nonetheless, these concerns in the NOICC do not, in isolation or in combination (discussed in further detail below), cause the Tribunal to have significant concerns about the applicant’s claimed identity.
43. The applicant’s education. The s 107 notice indicated there were inconsistencies in the applicant’s evidence about his schooling at his entry interview and in his protection visa application, in that he stated that he attended primary school in Iran from [Year] to [Year], but also that he only attended two study classes informally at night from 2005 to 2007. Additionally, the delegate considered it was ‘highly unlikely’ the applicant commenced primary school aged [age] (considering he was born in [Year]) as indicated at his entry interview.
44. In response to the NOICC, the representative notes the delegate appears to find it problematic that the applicant had an interrupted education or one that does do not match the norms of Australian education practice. Finding it highly unlikely he commenced primary school aged [age] ignores the reality for many Faili Kurds whose access to education as non-recognised residents was extremely difficult and relied on the good nature of a local school principal, he contends. Many people had no schooling whilst others, like the applicant, were able to get some, under trying circumstances. Such sporadic schooling is why the applicant stated that he had ‘no formal education’ because he had informal, irregular schooling, only when offered. Further, evening classes do not constitute a full and proper course of studies or invalidate his claim of no formal education.
45. At hearing the applicant said he never went to primary school and does not recall ever saying he did. Instead, he went to Nezhat for a limited time, as indicated in his protection visa application, which he described as like a night school for semi-literate adults. He did not need identity documents to enrol at Nezhat. He speculated that the inconsistencies in his evidence about his education may have been due to issues with interpretation, noting at his entry interview and identity interview the interpreter spoke with a Sorani dialect whereas he speaks Faili (Kurdish).
46. The Tribunal notes the applicant’s evidence to the Tribunal that he only learnt reading and writing in Iran informally at night classes was consistent with what he told the RSA delegate.
47. Additionally, in the notes of his entry interview (contained on the Department’s cancellation file) in relation to his educational history, it is written that he went to primary school for two to three years in ‘[Years]’; however, there is no indication that he was asked any further questions about this. It is also possible, as submitted, that his evidence in the entry interview was misinterpreted. Even if the evidence was not misinterpreted, the Tribunal considers such an inconsistency about his educational background is minor and does not undermine the applicant’s claimed identity.
48. Deceased parents’ burial. It appears the delegate suspected the applicant may have deliberately withheld his parents’ burial certificates, and further doubts arose when he failed to provide copies of their death certificates when requested. The applicant claims they were buried in [Location] cemetery in Tehran, where there is purportedly a mandatory requirement that the burial be registered.
49. In response to the NOICC on this issue, the representative said the applicant conceded that the Department’s observations regarding [Location] cemetery are correct in relation to a death certificate being required. However, he contends that a death certificate can be issued to the family of any deceased person and is not restricted to citizens of Iran, and there is no barrier to the burial of non-citizens in the [Location] cemetery.
50. At hearing the applicant confirmed his parents are buried in [Location] cemetery in Tehran but he was not aware of the procedures (or if there is or was any paperwork including death and/or burial certificates) as his brother made the arrangements for his father, who died when the applicant was still in Iran, and for his mother, who died after the applicant had left Iran. He said that for Muslims it is important to bury the body shortly after death, and even Faili Kurds (without identity documents) are buried. He added that his brother still lives in Tehran but they are not in touch.
51. The Tribunal notes that whilst this matter was raised as a concern in the NOICC, the delegate ultimately did not rely on the fact the applicant failed to provide his parents’ burial certificates and/or death certificates, apart from in relation to a general suspicion about the applicant’s failure to provide requested documents, leading them to believe he was attempting to conceal his true identity. Whilst the Tribunal agrees there is some concern about the applicant’s reticence to provide requested documents, and agrees with the delegate that doing so may have assisted them to be satisfied as to his true identity, this alone is not enough to cause it concern about his identity. It is possible his brother made the arrangements for his parents to be buried as claimed, and he is not in touch with him.
52. Departure from Iran (on a fraudulent document). The delegate found the applicant had not provided a plausible explanation about his departure from Iran, as his claim during the entry interview that he did so using a passport in someone else’s name is at odds with the fact that Iranian international airports are known to be very secure.
53. In response to the NOICC, the applicant submitted (via his representative) that he departed Iran by using a fraudulent passport, which may have contained the information of an Iranian citizen. He suggested that this common method is more difficult for border authorities to detect. Additionally, he submitted that when compared to the situation today, the border processes in place at the Imam Khomeini Airport were not as secure at the time of his departure nine years ago.
54. The representative notes in his response the delegate’s observation in the s 107 notice that ‘forged visas or visas obtained through false information exist’ and therefore it is not impossible to obtain them in Iran. He goes on to say that unless the delegate can produce a genuine passport, as suspected, and evidence of its use by the applicant, the assertion that it is more plausible to leave via a border crossing on a genuine passport in the NOICC is mere supposition.
55. In his oral evidence to the Tribunal, the applicant said he (and his family members) left Iran in 2010 via the Tehran airport on Iranian passports arranged by a people smuggler, who told them to get their passport checked with a specific officer. He said he is not sure if his passport was fake or genuine, but he paid someone to obtain it (for himself and his family members).
56. The Tribunal notes the applicant has consistently claimed to have left Iran on a fraudulently obtained passport, which was accepted by the RSA delegate. In the RSA decision record it states that he told the RSA delegate he and his family used bogus Iranian passports to depart Iran and their smuggler took the passports before they boarded the boat to Australia.
57. Whilst country information, including that referred to by the delegate in the s 107 notice and decision to cancel record, indicates that Iranian airports are known to be secure, and the passport details of departing passengers are electronically matched with official records, it also indicates that not all of the security features contained in the current Iranian passport issued since 2012^[16] existed when the applicant obtained his passport in 2010.
58. In a January 2021 Landinfo report it is stated that with the introduction of the latest versions of the shenasnameh, kart-e melli and passport, the reliability of Iranian identity documents has significantly improved, and that these documents have far more advanced security features than previous versions and are thus more difficult to falsify and manipulate^[17]. The same report notes that corruption is considered widespread in Iran. The payment of bribes is said to be relatively common at many levels of the government sector, and officials often expect an informal payment to offer routine services; however, they have little concrete information about how widespread this is in offices issuing passports and ID documents.^[18]
59. DFAT, in its 2016 country information report on Iran, assessed that exiting from the Imam Khomeini International airport with a forged passport would be difficult but not impossible if bribery was involved,^[19] which is what the applicant has consistently claimed. DFAT also noted that corruption was endemic in Iran.^[20]
60. Such country information indicates that it is possible that the applicant departed Iran in 2010 on a genuine passport obtained through fraudulent means as he has consistently claimed. It does not cause the Tribunal to consider he is not who he claims to be.
61. Information about the applicant’s daughter, [Ms C]. The delegate noted several inconsistencies had arisen in information pertaining to the applicant’s daughter, [Ms C], as follows:
    • [Ms C]’s indication on social media that she attended school in Iran during 2007 and 2008, which would require documentation, is inconsistent with the applicant’s claims that he was unable to renew the Green card for his family in 2005.
    • [Ms C]’s [Social media] records her DOB as [Date], contradicting the applicant’s statement that her DOB is [Date].
    • The applicant’s claim at his citizenship interview that [Ms C] was married to an Iranian citizen by a ‘sihreh’ or temporary marriage was inconsistent with his wife and daughter’s evidence at their interview, and marriage photographs on [Ms C]’s [Social media] profile, showing she has a child. In addition, the fact that she has stayed in Iran indicates she is permanently married.
62. The delegate also appeared to draw an adverse inference from the applicant’s failure to produce [Ms C]’s identity documents when requested, which would have included their details and helped establish their identities. The Tribunal agrees such identity documents could have helped establish their identities. However, the failure by [Ms C] to provide such documents is not of itself a sufficient basis to lead the Tribunal to have significant concerns about the applicant’s claimed identity.
63. In response to the NOICC, the representative made the following submissions on this issue:
    • It is unwise to rely on comments posted on social media; it is well known that social media reflects people’s preferred views and opinions as opposed to the truth; and with respect to education, it is often exaggerated, lied about or left unexplained on social media.
    • It is acknowledged that [Ms C] married an Iranian citizen and their child is an Iranian citizen (by virtue of her father’s status) and [Ms C] may have acquired Iranian citizenship through marriage; however, this is independent of the applicant.
    • The error related to whether the marriage was temporary or permanent does not disclose anything related to the applicant’s own status, although [Ms C] may well now be a citizen.
    • The fact [Ms C] stayed in Iran after her marriage in 2012 does not reveal a sinister purpose. She was entitled to stay with her husband who is an Iranian citizen. His citizenship has no bearing on the applicant’s status and it is inappropriate to conflate the two.
64. At hearing the applicant confirmed that [Ms C] has been living in Tehran since she returned there to marry in 2012, and she now has a child. Given she married an Iranian national, their marriage was registered, but he is unsure if she has a marriage certificate or if she was issued a shenasnameh. He said that when she got married, as her father he went with her and her husband to the ‘special offices’ to sign the relevant documents to register her marriage. The officials relied on his details contained in his TDV to do so.
65. With respect to the changing and at times inconsistent evidence about whether [Ms C]’s marriage was temporary or not, at hearing the applicant said her marriage was initially temporary, which is what he told the Department at interview. They later changed it to a permanent one. When asked why [Ms C] (and her husband) would do this, the applicant said he could not understand their reason, noting they are of a different generation, but it was their decision. When asked what his other daughter, [Ms B], had told the Department about this arrangement, the applicant said he has no idea.
66. The Tribunal agrees with the representative that information on social media is inherently unreliable. It accepts the applicant’s evidence that [Ms C]’s claim on her [Social media] profile to have attended school in Iran in 2007 and 2008 was untrue. Neither this information, nor the inconsistency regarding [Ms C]’s DOB causes the Tribunal to have concerns about the applicant’s claimed identity.
67. Whilst [Ms C]’s marriage to an Iranian national, and her seemingly permanent return to Iran, may raise questions about the claims made in 2010 regarding her fears of persecution as a stateless Faili Kurd (and by implication, her father’s claimed fears), this information does not, of itself, raise significant concerns about the applicant’s claimed identity or nationality. This is particularly the case as, even if she has been an Iranian national since 2012, she achieved that through her marriage that year: there is no probative evidence she was an Iranian national before then.
68. The applicant claims that when he asked [Ms C] to go to the Australian Embassy in Iran to show her identity documents (if any), she refused, as she wanted to stay in Iran (he did not elaborate). It appears the delegate saw this lack of cooperation as a deliberate attempt to hide information about the applicant’s identity. However, the Tribunal is of the view that there could be several reasons why [Ms C] was reluctant to cooperate in this respect, including being wary of the authorities (including Australian authorities), particularly given her background. For the reasons given above and below, the Tribunal accepts the applicant (and his family) were stateless Faili Kurds in Iran before they came to Australia, and the Tribunal does not find [Ms C]’s failure to provide her identity documents raises any significant concerns as to the applicant’s claimed identity.
69. Iranian driver’s licence. In the s 107 notice, the delegate considered it implausible that the applicant would drive for work purposes without a valid Iranian driver’s licence, as claimed. In response, the representative notes the information is based on statements made by the applicant, who agrees he provided such information.
70. The Tribunal notes this issue is not included in the reasons why the delegate concluded they were not satisfied as to the applicant’s identity in the decision record.
71. At hearing the applicant said he never had an Iranian driver’s licence in Iran, and whilst someone taught him to drive, he never did so officially. Occasionally he would drive his employer’s car to move things a short distance, for example, but not outside the area they lived and worked. He did not need a driver’s licence for his primary job as a street vendor. The Tribunal considers this a plausible explanation.

Lack of reliable identity documents

72. Additionally the delegate records in the s 107 notice (and decision record) his concern that the applicant had been unable to provide any reliable information or documentation to support his claimed identity to the Department since his arrival in Australia in 2010, and gave this significant weight in reaching the decision to cancel his visa. The delegate also notes that when specifically requested to provide certain documents, such as [Ms C]’s shenasnameh and his parents’ burial certificates, the applicant failed to do so, as noted.
73. The delegate also noted concerns with the applicant’s evidence about his lack of identity documents in Iran, including limited knowledge about Green cards and what entitlements they bestowed (as detailed earlier).
74. In response, the applicant submitted (via his representative) that in the early years, the Iranian government denied displaced Iraqi Kurds any form of identity documentation. Later, the White and Green card systems were problematic and did not prevent widespread discrimination against the Iraqi Kurdish population. The applicant’s father was not the only person to throw away a Green card because it was useless. The card did not ‘miraculously’ open doors to education, health and welfare, he submitted.
75. The representative goes on to state that Green cards were issued by the Iranian government from 1980 until 2003; however after the fall of Saddam Hussein in Iraq, the Iranian government regarded the new Iraq safer to return to and stopped using Green cards, moving to the system of White cards. White cards specified identity but their effective purpose was to identify Iraqis who could be returned to Iraq, he contends. The representative argues that in this context, it was quite sensible to throw away the Green card without understanding the card’s theoretical benefit as an identity document, and to access other entitlements (noted as being property rental, banking and health insurance by the delegate).
76. Further, the representative submitted that without evidence to suggest otherwise, the Department cannot assume that the applicant had rented a property or required services such as banking and insurance. To assert this without evidence may be a denial of justice. The reality of village life for displaced people is that they frequently did not require such services, invariably making the Green card even less useful to them. In addition, he submits that a person who does not hold documentation is unlikely to know the benefits offered by having such documentation.
77. At hearing the applicant explained the reason he has not been able to provide documents from Iran showing his identity is because he does not have any. He said he was born in Iraq to Kurdish parents (he was not sure if they held Iraqi citizenship) where he lived until he, his brother and his parents were expelled to Iran by Saddam Hussein when he was still young. In Iran they first stayed in a camp, and then his paternal uncle took them to Ilam for around a year or two until they moved to Tehran, where the applicant stayed until he left Iran in 2010. He said whilst other people in similar situations were able to get Iranian identity documents, he did not.
78. The applicant said he married his wife, who is a distant cousin, when he was still young (around [Age]), and they had their first daughter in [Year]. She was born at home and they did not register her birth (or the birth of their second child). Their marriage was not registered as they were both stateless, but it was officiated by a Mullah.
79. The applicant said when he lived in Tehran, he attended night school but not often, as he was bullied by other students because he did not speak Persian initially. He did not have to show ID to attend night school. He worked mostly as a street vendor or in part time jobs such as [job] (as did his father), which did not require identification. He thinks his father had a card, Green or White, which he at some stage took to the authorities to try and get a shenasnameh, but he was unsuccessful and they kept the card.
80. The applicant said his daughters also attended Nezhat for their schooling in Iran and were not required to show ID; they were just asked where they came from and they told them that they were from Iraq. Nezhat was not like regular schools; they were not given a certificate at the end of the course. When asked why his daughter [Ms C] then claimed in a [Social media] post that she attended a vocational high school in Iran in 2007 and 2008, the applicant said she did not and it was likely that she was trying to boast.
81. Additionally, the applicant said he never held a bank account in Iran, instead keeping money at home or with someone he trusted. When he rented property to reside in, he used another person’s name and ID.
82. The applicant also addressed an issue raised in the first NOICC (and in respect of his wife’s cancellation matter) about his wife’s ability to obtain medical treatment in Iran when they had claimed at the protection visa stage that there are obstacles to doing so as stateless persons. At hearing the applicant explained that his wife used to attend a private hospital in Tehran for treatment (the name of which he had forgotten), for which he paid a lot of money. The doctors treated her without asking for any ID, and the applicant noted that money can do everything in Iran.
83. Based on the country information set out earlier about bribery and corruption in Iran, the Tribunal accepts the applicant’s evidence about his and his family’s abilities to obtain health assistance, and some limited education (including for his daughters) through paying money (and via contacts) as claimed, which did not require the provision of ID documents. It also accepts he was able to rent property in Tehran via a third person as claimed, and that he did not have a bank account.
84. In his oral submission to the Tribunal, the representative contends that the applicant has consistently said he does not have Iranian (or Iraqi) identity documents, or otherwise he would have provided them; he cannot produce what he does not have; and he is an undocumented stateless Faili Kurd.
85. The Tribunal notes three main groups of Faili Kurds live in Iran, including registered refugees who are Amayesh card holders (of both Green and White cards).^[21] These are issued to Iraqi refugees resident in Iran and their issue is inconsistent with them being Iranian nationals. The applicant has consistently claimed, from his arrival in Australia to date, that his family were given a Green card in Iran when they first arrived, and the authorities kept that card when the family took it for renewal in 2005. That was why he did not have it when the Basij asked him for his Green card in August 2007 when he was coming home; and he understood this was because Saddam Hussein had gone in 2003 and he was supposed to return to Iraq and was no longer eligible for a Green card.
86. Even if aspects of his evidence were vague, and his knowledge about Amayesh (and related matters) vague in interviews with the Department, this does not, in the Tribunal’s view, undermine his evidence in this respect, or by extension his claimed identity. In particular, the Tribunal notes the applicant’s limited education and suspicion of authority (as claimed), as someone lacking official status.

Further considerations with respect to the applicant’s claimed identity

87. In addition to the above, the Tribunal has given weight to the following considerations in accepting the applicant’s claimed identity:
    1. The RSA delegate accepted his claimed identity and he was granted a protection visa under that identity in 2010.
    2. He has been issued multiple Australian identity documents under his claimed identity, including a TDV, which he used to travel to Iran in 2012. He obtained an Iranian visa to travel to Iran via the Iranian Embassy in Canberra evidence of which was provided to the Tribunal, which was extended in country. This is indicative of him not holding an Iranian passport (for example) at that time, in addition to the relevant Iranian authorities (in Canberra and Iran) being satisfied as to his claimed identity. As noted earlier, the delegate (in the s 107 notice and decision to cancel) was not satisfied this was sufficient evidence to support his claimed stateless identity. However, for the reasons above, the Tribunal has found there is insufficient evidence to have significant concerns about the applicant’s claimed identity and therefore finds his return to Iran in these circumstances supports his claimed identity.
    3. The applicant’s oral evidence at hearing about growing up in Iran (after arriving there from being expelled from Iraq with his parents and brother (his other brother had been killed) in the 1980s) was reasonably consistent with what he told the RSA delegate, who accepted his evidence in this regard. Although not overly sophisticated or detailed, he was able to talk about his upbringing in Iran and his reasons for leaving there in 2010.
88. The Tribunal notes the applicant’s return to Iran in 2012, the place where he claimed to fear persecution in 2010, does cast doubts to some extent on his earlier protection claims but not necessarily his identity. Even so, a short-term visit does not undermine his protection claims in their entirety, particularly given they related to his status as a stateless Faili Kurd and problems experienced over a period of time. The Tribunal notes the delegate did not raise this as a specific concern in the s 107 notice or decision to cancel record.

Other matters:

89. Both of the applicant’s daughters have now returned to Iran: [Ms C] in 2012 (as discussed), and more recently, [Ms B]. The applicant said at hearing [Ms B] had returned seven months prior. Presently she is awaiting paper work to move to [Country] with her husband (an Iranian and [Country] citizen whom she had married in Australia) and her son, living in Tehran with her parents-in-law. Their returns to Iran raise some doubts about their protection claims made earlier, but not necessarily about the applicant’s claimed identity to the requisite level, as required by Zhao.

Conclusions about the applicant’s identity

90. For the reasons above, and having considered the matters raised in the NOICC, the Tribunal is satisfied of the applicant’s identity is as claimed. It accepts he is [the applicant], born on [Date] in Iraq, who moved to Iran from Iraq when around [Age] years of age.
91. The Tribunal accepts he is stateless and does not have identity documents (pertaining to Iraq or Iran), which explains his inability to provide such documents to the Department over the years. His inertia in providing other requested documents that may be attainable, such as identity documents for his daughter, [Ms C], following her marriage to an Iranian citizen in 2012, whilst of some concern, is insufficient to cause the Tribunal to have significant concerns about the applicant’s claimed identity. Whilst it may not have been easy to live in Tehran for decades without identity documents, affecting his ability to rent property, have children, access medical care and attend school, for the reasons above, the Tribunal has accepted it was possible, often by paying to do so. For similar reasons, the Tribunal has accepted the applicant’s evidence about his departure from Iran in 2010 on a fraudulently obtained Iranian passport.
92. Additionally, as noted, most of the concerns set out in the s 107 notice pertain to questions about the applicant’s alleged stateless status, not directly to his identity, and the Tribunal is not satisfied that such questions, as outlined in the NOICC, are so great (either combined or in isolation) that they undermine his claimed identity to the level required in Zhao.
93. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1AA) exists. It follows that the power to cancel the applicant’s visa does not arise.

DECISION

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

Nicole Burns
Member

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^[1] AAT No. 2101739.
^[2] According to information in the delegate’s decision record, his daughter [Ms B] (born on [Date]) was granted a protection visa as a dependent child of the applicant’s and therefore if his visa is cancelled, hers would be cancelled as a consequence under s 140(1) of the Act. His other daughter, [Ms C] was also his dependent on the protection visa but returned to Iran in 2012.
^[3] Iranian birth certificate/booklet.
^[4] A copy of the identity assessment is contained on the Department’s cancellation file.
^[5] DFAT, ‘Status of Faili Kurd refugees and documentation issued to them in Iran’.
^[6] Research Directorate Immigration and Refugee Board of Canada, ‘Iran: Exit and entry procedures at airports and land borders...’, 3 April 2006.
^[7] As claimed in his entry interview and protection visa application.
^[8] In a written submission dated 26 November 2020.
^[9] At p.24.
^[10] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 21/8/16).
^[11] PAM3 - Visa Cancellation instructions - General visa cancellation powers (s109, s116, s128, s134B and s140) - s116(1AA) – Not satisfied as to identity (re-issue date 29/3/2020).
^[12] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Assessing the identity of visa applicants – IDENTITY ASSESSMENT & THE VISA DECISION PROCESS – Officers must be satisfied as to a stated identity.
^[13] POLICY – MIGRATION ACT – Identity, biometrics and immigration status – Bogus Documents – Detection, Seizure and Retention – Identity – What is Identity.
^[14] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].
^[15] Elizabeth Campbell, Reliefweb, ‘The Faili Kurds of Iraq: Thirty Years without Nationality’, 2 April 2010.
^[16] Such as 3D watermark, invisible fibres, invisible text, laser perforation, security threat and a contactless computer chip. MATIRAN Company, History of the Passport at MATIRAN, https://www.icao.int/Meetings/icaotrip-Iran-2016/Documents/Presentations/D3%20S8%20SHOAIBI.PDF.
^[17] Landinfo Country of Origin Information Center, Report, Iran, Passports, ID and civil status documents, 5 January 2021, p 40.
^[18] Ibid, at p 41.
^[19] DFAT Country Information Report, Iran, 21 April 2016 at 5.49.
^[20] DFAT Country Information Report, Iran, 29 November 2013 at 2.9.
^[21] DFAT Country Information Report, Iran 14 April 2020 at 3.23.