EAC16 v Minister for Immigration

Case [2020] FCCA 1709


FEDERAL CIRCUIT COURT OF AUSTRALIA

EAC16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1709
Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – consideration of new information – question of materiality – Application dismissed.
Legislation:
Migration Act 1958, ss.65, 473DD, 473DC

Cases cited:

AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
BKX18 v Minister for Home Affairs [2020] FCA 432
BVZ16 v Minister for Immigration [2017] FCA 958
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Border Protection vSZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16

Applicant: EAC16
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File number: MLG 2787 of 2016
Judgment of: Judge Blake
Hearing date: 21 April 2020
Date of last submission: 29 April 2020
Delivered at: Melbourne
Delivered on: 26 June 2020

REPRESENTATION

Counsel for the applicant: Ms Costello SC
Solicitors for the applicant: Victoria Legal Aid
Counsel for the respondents: Mr Hosking
Solicitors for the respondents: Clayton Utz Lawyers

ORDERS

  1. The application filed on 21 December 2016 and amended on 27 March 2020 be dismissed.

  2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2787 of 2016

EAC16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 7 December 2016. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a temporary protection (subclass 785) visa (‘visa’). 

  2. For the reasons that follow, I have decided to dismiss the application for review.

Background

  1. The Applicant is an Iranian national. He arrived in Australia on 29 September 2012 as an unauthorised maritime arrival. The Applicant first applied for a protection visa on 18 September 2013. That application was declared invalid. The Applicant was invited to apply for the visa, and ultimately lodged a further application on 12 October 2015.

  2. On 19 August 2016, a delegate of the Minister refused to grant the Applicant the…

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Details
AGLC
EAC16 v Minister for Immigration [2020] FCCA 1709
Case
[2020] FCCA 1709
Decision Date

CaseChat Overview and Summary

This matter came before Judge Blake concerning an application for a Protection visa. The applicant had initially made a visa application in 2013, supported by a Statutory Declaration. In that declaration, the applicant asserted he feared harm in Iran due to producing and selling wine, harassment of his wife and children, and having claimed asylum in a Western country. Crucially, he also stated he no longer believed in Islam, felt disillusioned with its strict interpretation by the Iranian regime, and was exploring Christianity, believing he would be harmed for renouncing Islam and showing interest in Christianity.

The legal issues before the court were whether the applicant's claims regarding religious persecution were credible, particularly in light of significant inconsistencies that emerged between his initial Statutory Declaration and his statements during a Protection visa interview conducted in January 2016. Specifically, the court had to determine if the applicant had genuinely renounced Islam and was at risk of harm due to his interest in Christianity, as asserted in 2013, or if his later statements, where he identified as a Shia Muslim and denied making religious claims, were truthful.

The court's reasoning focused on the stark contradiction between the applicant's 2013 Statutory Declaration and his 2016 interview. In the 2013 declaration, the applicant explicitly detailed his loss of faith in Islam and his exploration of Christianity as grounds for fearing harm in Iran. However, during the 2016 interview, he asserted he was a Shia Muslim, denied making any claims about religion or conversion, and stated he had only attended church with Christian friends out of politeness, declining any offers of conversion. He further claimed he had not made the statements about religious conversion or apostasy to his lawyer and suggested the interpreter may have explained something incorrectly, despite confirming his signature on the 2013 statement and acknowledging it was his. The court considered the applicant's explanation for the discrepancy, including his assertion that the statement was not read back to him and that he had not claimed religious conversion.

The court found that the applicant's explanation for the significant inconsistencies was not credible. The applicant's denial of having made the religious claims in his own signed Statutory Declaration, and his subsequent assertion that he was still a Muslim and had not considered converting, undermined the genuineness of his original claims of religious persecution. Consequently, the court was not satisfied that the applicant had established a claim for a Protection visa based on religious persecution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Applicant first made an application for a visa in 2013. At that time, he prepared a Statutory Declaration made on 18 September 2013 in support of the visa application (‘First Statutory Declaration’). In the First Statutory Declaration, the Applicant claimed variously, in response to the question ‘Why I left my country’ and ‘Why I believe they will harm or mistreat me if I go back’ the following (Court Book 212-3):a)he would be seriously harmed by the Iranian authorities for producing and selling wine;b)his wife and children were regularly harassed in Iran; andc)he may be at risk of harm upon return to Iran because he had travelled to a Western country and claimed asylum. Insofar as his religion was concerned, in the First Statutory Declaration in 2013, the Applicant claimed as follows: a)At page 212 of the Court Book:‘Furthermore, I feared harm in Iran given I no longer believe in Islam. I became disenchanted with the faith. I felt it was strictly interpreted and relied upon by the Iranian Regime to perpetrate harm. Since coming to Australia, I have had the opportunity to explore different faiths. I have been attending my local Catholic Church each Sunday. I am enjoying learning about Christianity and feel that it may be a good religion for me. I want to complete further research before making my decision. Given I was born into the Islamic faith and no longer believe in the Islamic faith; I believe I would be seriously harmed in Iran.’b)At page 213 of the Court Book:‘Further, I may be at risk of harm given I no longer follow the Islamic faith. Individuals who do not follow Islam in Iran are at risk of serious harm. I would be in particular risk of harm given I was born into the Islamic faith and have decided to renounce it Further, I would be harmed given I have taken an interest in the Christian faith.’ It can be seen from the above that in 2013, the Applicant raises, inter alia, two issues. First, he was not following Islam. Second, he was exploring an interest in Christianity. The Applicant expressly relied on the First Statutory Declaration in relation to his application for the visa. On 18 January 2016, the Applicant attended for a Protection visa interview. The interview occurred over two years after the First Statutory Declaration. The Department summarised the interview, insofar as it concerns any claims about religion, at paragraph [59] of its written reasons as follows:‘…At the beginning of the PV interview the applicant stated he was an adherent of the Shia sect of Islam. When he was asked about his religion in more depth, he reiterated that he was a religiously Shia Muslim. The applicant was asked about his claim to fear punishment by the Iranian authorities because of his associations to other religions in Australia. The applicant replied that he said no such thing. When asked whether he attended other religious events, the applicant stated he had sometimes attended Church with friends, however, he confirmed he still considered himself to be Muslim. The applicant stated he had no other claims for protection other than his claim regarding the consumption, production and sale of wine. When the inconsistency between his written application and comments made at PV interview were put to him, the applicant stated he had not previously made claims regarding religion or conversion. The applicant was referred to his written statement of claims from his PV application, which had his name and signature which was sent from BMA Lawyers in 2013. The applicant said he did not claim that. He stated he had two friends who were Christian with whom he had attended church with, who had asked if he wished to convert which he declined. He stated he was 63 years old, and had lived for 63 years as a Muslim so he did not think he would change religion now. …The applicant was asked to confirm the signature on the statement was his, which he confirmed. He then confirmed the statement was his. The applicant was referred to the section which described fear of religious persecution due to his claimed loss of belief in Islam and his interest in Christianity. The applicant claimed he never said that to the lawyer. The applicant was asked if, when having made the statement, it was read back to him. He stated they did not. He claimed he never said anything about religious conversion or apostasy. He suggested the interpreter explained something incorrectly.’