1908269 (Refugee)

The applicant, an ethnic Arab Shi’a Muslim of Iraqi origin, sought review of two decisions by delegates of the Minister for Home Affairs to refuse him protection visas. The applicant arrived in Australia in 2012 and, after initial complexities regarding his status as an unauthorised maritime arrival and subsequent visa applications, ultimately sought review of the refusals by the Migration and Refugee Division of the Tribunal. The applicant claimed to have been born in Iran to Iraqi parents displaced from Iraq due to sectarian persecution, asserting he was stateless and faced persecution in both Iran and Iraq.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he had substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there was a real risk that he would suffer significant harm. This involved assessing his claims regarding his nationality, his fear of persecution based on his ethnicity, religion, and perceived Iranian background, and his lack of status or rights in Iran. The Tribunal also considered the meaning of "significant harm" as defined in the Migration Act 1958 (Cth).

The Tribunal accepted that the applicant was born in Iran to Iraqi parents who had been displaced from Iraq. It also accepted that the applicant held an expired Iranian Green Card, which granted him limited rights in Iran, and that he was not an Iranian national. Crucially, the Tribunal found that the applicant was not stateless, accepting his evidence that his father had obtained Iraqi national identity and citizenship documents for the family after the fall of Saddam Hussein, which enabled the applicant to obtain an Iraqi passport. Consequently, the Tribunal assessed the applicant's protection claims against Iraq. The Tribunal affirmed the delegate's decision to refuse the protection visas.