1724829 (Refugee)

The applicant, an Iraqi citizen born in Iran, sought review of a delegate's decision to refuse a Subclass 790 protection visa. The applicant's initial claims of being stateless and fearing harm in Iran were disavowed, with the applicant now acknowledging his Iraqi citizenship. He claimed fear of persecution in Iraq due to his Shia Muslim faith, potential imputation of a pro-Iranian political opinion, and being a failed asylum seeker returning from a Western country. The applicant also had an Australian permanent resident wife and Australian-born children.

The court was required to determine whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by section 5J(1) of the *Migration Act 1958* (Cth). Alternatively, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Iraq, the applicant faced a real risk of suffering significant harm, as per section 36(2)(aa) of the Act.

The court found that the applicant was an Iraqi citizen and not a citizen of Iran, and that he did not have a right to enter or reside in any country other than Iraq, thus not being excluded from Australia's protection obligations under section 36(3). The applicant's claims were found to be vague and his evidence unreliable, particularly his initial assertion of never having travelled to Iraq, which was contradicted by information from his sister and the fact he departed Iran on an Iraqi passport. The court noted that the applicant's father, a prominent Shia cleric, and a brother had returned to Iraq without apparent harm. The court also considered that the applicant's wife was an Australian permanent resident, suggesting he might explore other visa options.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa.