1726354 (Refugee)

This matter concerned an application for a protection visa by a stateless Faili Kurd from Iran. The applicant claimed he would face persecution and serious harm if returned to Iran due to his statelessness, lack of documentation, and illegal departure from the country. The delegate had accepted the applicant's identity and statelessness, and acknowledged he had suffered discrimination as a Faili Kurd, but found this did not amount to persecution. The delegate was not satisfied the applicant would face differential treatment as a failed asylum seeker and considered the risk of serious harm to be remote.

The court was required to determine whether the applicant had established a real risk of suffering significant harm if returned to Iran, considering his statelessness, the expiry of his Iranian identity card, and his departure from Iran using a false passport. This involved assessing whether the discrimination he faced in Iran rose to the level of persecution and whether he would be subjected to differential treatment as a failed asylum seeker, thereby creating a real risk of significant harm. The court also had to consider the country information regarding the treatment of individuals in similar circumstances in Iran.

The court applied the principles outlined in s.36(2B)(c) of the Act, which states that a real risk of significant harm is not established if the risk is faced by the population generally and not by the applicant personally. The court noted that the applicant's white card, which allowed him to reside in Iran without deportation but conferred no human rights, had expired. The applicant also claimed he would be accused of being a spy and imprisoned upon return due to his lack of documentation and illegal departure. The court considered the applicant's evidence regarding his inability to obtain a birth certificate or citizenship in Iran, despite Iranian law potentially making him eligible. The court also noted the delegate's finding that the penalty for illegal departure from Iran was imprisonment or a fine, and the applicant did not respond when this was put to him.

The court found that the applicant had not established a real risk of significant harm. While acknowledging the discrimination faced by the applicant as a Faili Kurd and his statelessness, the court determined that these factors, in conjunction with his illegal departure and expired identity card, did not create a risk of harm that was not faced by the population generally. The court concluded that the chance of the applicant suffering serious harm was remote.