1907316 (Refugee)

This matter concerned an application for protection visas by a family of five, comprising two overseas-born parents and three Australian-born children. The overseas-born applicants arrived in Australia in July 2010 and subsequently applied for protection visas, which were refused. After a series of reviews and remittals, including to the Federal Circuit Court, the matter was before the Tribunal for reassessment. The applicants claimed to be of Faili Kurdish ethnicity and Shia Muslim religion, and asserted they had departed Iran using false passports. Issues arose regarding their identity, birthplace, and potential statelessness, as well as whether they met the criteria for protection under the Act, including the complementary protection criterion.

The court was required to determine whether there was a real chance that the applicants would be persecuted for one or more of the five Convention reasons upon return to Iran, as defined by section 5J(1)(a) of the Act. Additionally, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal, the applicants faced a real risk of suffering significant harm under section 36(2)(aa) of the Act. A further issue was whether section 91W(2) of the Act applied, potentially preventing the grant of protection visas to the overseas-born applicants. The court also needed to resolve questions concerning the identity, birthplace, and nationality or potential statelessness of the overseas-born applicants.

The court considered the applicants' claims of Faili Kurdish ethnicity and Shia Islam religion, noting these had been consistently asserted since their arrival. The court also examined the applicants' assertions of having used false passports to depart Iran and their claims regarding their true identities. The court acknowledged that the identity of the Australian-born applicants was not in dispute due to the provision of official birth certificates. The court's reasoning involved assessing the evidence in light of the Refugee Convention and complementary protection provisions, as well as relevant Ministerial Directions and country information. The court ultimately remitted the decision for reassessment, indicating that the original decision was not to be affirmed.