1801386 (Refugee)

This matter concerned an application for a Protection visa by a child applicant, born in Australia, whose parents and older brother had arrived in Australia in 2011. The applicant's father had lodged a combined Protection visa application for himself and his son, and the applicant was later added to this application after her birth. The applicant's mother lodged a separate application. The father's primary claims were that his family were stateless Faili Kurds who had left Iran illegally, experiencing hardship and discrimination. He also claimed to have been expelled from Iraq and unsuccessfully sought Iraqi citizenship before travelling to Iran and then Australia. The applicant's mother provided a statement on behalf of the applicant, expressing fear of serious harm upon return to Iran or Iraq due to her Faili Kurd ethnicity, statelessness, status as a failed asylum seeker from a Western country, and her upbringing in a Western country. The case was heard by Melissa McAdam.

The central legal issues before the Tribunal were whether the applicant would face persecution or significant harm if returned to Iran, and whether she met the criteria for a Protection visa. Specifically, the Tribunal was required to determine the applicant's nationality, considering the initial claims of statelessness against later admissions of Iranian nationality. It also needed to assess the risk of harm based on her ethnicity as a Faili Kurd, her status as a young woman returning from a Western country, and the potential consequences of her lack of familiarity with Iranian customs and laws. The Tribunal also had to consider the provisions of Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines.

The Tribunal found that the applicant's parents had admitted to being Iranian nationals, and provided documentation confirming their Iranian citizenship. Consequently, the Tribunal was satisfied that the applicant was also an Iranian citizen by descent, and therefore assessed her claims against Iran as her country of nationality and receiving country. The Tribunal was not satisfied that the applicant would face discrimination amounting to persecution as a Faili Kurd in Iran, referencing country information suggesting authorities were unlikely to monitor religious observance and that consequences for failing to adhere to moral ethics would likely stem from general law application rather than persecution. The delegate's decision, which was under review, had also considered the absence of country information indicating harm to individuals returning from Western countries or unsuccessful asylum seekers, and the strict enforcement of moral codes in Iran.

The Tribunal's decision was to remit the matter for reconsideration. This was because the delegate had concluded that the applicant's father was an Iranian citizen and that the applicant and her brother were also Iranian citizens by descent. However, the delegate was not satisfied that the applicants would face discrimination amounting to persecution as Faili Kurds in Iran. The delegate also referred to country information regarding the unlikelihood of authorities monitoring religious observance and the absence of country information showing harm to individuals returning from Western countries or unsuccessful asylum seekers. The delegate concluded that any consequences for failing to adhere to moral ethics would flow from the general application of law, not persecution. The applicant's review application was subsequently separated from her father's due to separate representation.