2009656 (Refugee)

This decision concerned an application for a protection visa by a Faili Kurd from Iran. The applicant sought review of a decision that he did not meet the refugee criterion under section 36(2)(a) of the *Migration Act 1958* (Cth). The applicant also sought to rely on the complementary protection criterion under section 36(2)(aa) of the Act.

The primary legal issue before the Tribunal was whether the applicant faced a real risk of significant harm if removed from Australia, thereby satisfying the complementary protection criterion. This involved considering the applicant's background, including his ethnicity, imputed political opinion, past dealings with authorities, and any potential risks upon return to Iran or a third country. The Tribunal was also required to consider the meaning of "significant harm" as defined in the Act and the circumstances under which a person would not be taken to face such a risk.

The Tribunal acknowledged its constitutional position within the Executive Government of the Commonwealth, noting that executive power is vested in the Crown and exercised by the Governor-General. It emphasised the importance of understanding the Crown's role and prerogatives in the Australian constitutional order. In applying the law to the facts, the Tribunal considered Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information. The Tribunal ultimately remitted the decision for reconsideration, indicating that the applicant may meet the criteria for the grant of the visa.