EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter came before Riley J of the Federal Court of Australia concerning an application for leave to file a further amended application and the dismissal of interlocutory applications made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant, an Iranian citizen, arrived in Australia in 2013 and was subsequently placed in immigration detention before being granted a bridging visa. He later applied for a SHEV (Special Humanitarian visa), which was refused by the delegate and subsequently affirmed by the Immigration Assessment Authority (IAA). The applicant’s claims for protection were based on his atheism, criticism of the Iranian regime, and threats from his ex-wife’s family.

The central legal issue before the Court was whether the IAA had misapplied section 5J(3)(c)(i) of the *Migration Act 1958* (Cth) by finding that the applicant should modify his behaviour to avoid a real chance of persecution. Specifically, the applicant argued that the IAA erred by failing to consider whether he would be forced to modify his religious beliefs or political opinions, or by implying that he could or should do so. The applicant contended that his atheism and critical stance towards the Iranian regime were fundamental aspects of his identity that he should not be required to conceal or alter to avoid persecution.

Riley J reasoned that section 5J(3)(c)(i) of the Act, which deals with the modification of behaviour to avoid persecution, was not applicable in this instance. The IAA had accepted that the applicant considered himself an atheist but found that he had exaggerated his desire to speak out about his beliefs to embellish his claims. The IAA also noted that the applicant had not been vocal about his beliefs in Australia or in Iran prior to his departure, and that his actions had not led to harm. Consequently, the IAA concluded that the applicant, if he continued with his usual behaviour, would not face a real risk of serious or significant harm in Iran. The Court found that the IAA’s assessment did not involve a consideration of whether the applicant should modify his behaviour in a way prohibited by section 5J(3)(c)(i), as it had already determined that the applicant’s existing behaviour did not place him at risk of persecution.

The Court concluded that the applicant’s fifth ground of review, concerning the misapplication of section 5J(3)(c)(i), did not have a reasonable prospect of success. Therefore, leave to amend the application on this ground was refused.