ERJ18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1009
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERJ18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1009
File number(s): SYG 2538 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 11 June 2025 Catchwords: MIGRATION – Whether Immigration Assessment Authority erred in manner identified in MZZJO – whether Authority failed to properly understand claim of applicant to have converted to Christianity Legislation: Migration Act 1958 (Cth) s 5J Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
Division: General Federal Law Number of paragraphs: 47 Date of hearing: 11 June 2025 Place: Sydney The Applicant: In person Solicitor for the Respondents: Ms S Lloyd, MinterEllison ORDERS
SYG 2538 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERJ18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.Leave is granted to the applicant to file and rely on the written submissions in the form provided in Court today.
3.The application, filed on 10 September 2018 is dismissed.
4.The applicant must pay the first respondent’s costs and disbursements of, and incidental to, the application fixed in the amount of $8,371.30
5.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 3 and 4 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 10 September 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 28 August 2018.
BACKGROUND
The background to the matter and summary of the Authority’s decision are derived from the written submissions of the first respondent. Unless otherwise indicated, the following does not appear to be in dispute.
The applicant is a citizen of Iran who arrived in Australia on 14 March 2013 as an unauthorised maritime arrival. He attended an arrival interview on 4 April 2013 (Court Book (CB) 1).
The first respondent exercised his discretion under subsection 46A(2) of the Migration Act 1958 (Cth) (Act) allowing the applicant to make a valid application for a specified visa (see CB 111). On 29 April 2016, the applicant applied for the visa (CB 55).
On 27 May 2016, the first respondent’s Department (Department) requested documentary evidence of the applicant's identity, nationality or citizenship (CB 117). On 9 August 2016, the applicant provided further material (CB 120 to 125).
On 24 October 2017, the Department invited the applicant to attend an interview in relation to his application (CB 128). The applicant attended the interview on 7 November 2017 (visa interview).
On 22 November 2017, the Department requested further information (CB 142ff). On 13 and 14 December 2017, the applicant provided further material (CB 158, 192 and 194).
On 19 January 2018, a delegate of the first respondent (delegate) refused to grant the applicant the visa (CB 202). Being “fast track reviewable”, the delegate’s decision was consequently referred to the Authority for review (CB 198 and 238).
On 14 February 2018, the applicant provided documents to the Authority (CB 255 to 258).
On 28 August 2018, the Authority affirmed the decision under review (CB 265).
Applicant’s claims
The applicant claimed to have had an affair with a married woman which resulted in her husband (who was a member of the Iranian armed forces) threatening to kill him. He claims that, after his departure from Iran, the woman made a complaint that the applicant had raped her. He claimed that as a result of this allegation he was charged, convicted and sentenced to death in absentia (CB 267).
The applicant also claimed to fear harm on account of his religion (having renounced Islam and converted to Christianity in Australia), his imputed political opinion (on the basis he claimed to have been arrested and detained during a protest in 2009), and as a member of a particular social group comprising failed asylum seekers and western sympathisers.
The applicant also claimed he would be arrested on return because he had made wine in Iran.
Authority’s decision
The Authority rejected the applicant's claims on the basis of comprehensive adverse credibility findings and because it found the claims did not give rise to a risk of harm. The Authority had the following concerns about the applicant's evidence:
(a)in relation to the alleged affair, the Authority identified variations and inconsistencies in the applicant's account including in relation to the names of parties, his interactions with the woman’s husband, his living arrangements and the timing of events (CB 268 to 269 at [9] to [13]). The Authority concluded this claim was a fabrication. Consequently, the Authority also rejected the applicant's claims he had been charged with rape and convicted and sentenced to death in absentia (CB 269 at [14] to [15]);
(b)in respect of the applicant’s claims regarding his religion, the Authority noted the applicant identified as a Muslim in his arrival interview and statement attached to his application form (CB 269 to 270 at [16]). The Authority referred to inconsistencies in the applicant's evidence about his church attendance and found his knowledge of Christianity to be 'shallow' (CB 270 at [17] to [18]). The Authority did not accept the applicant attended church in Iran, and concluded the applicant had not genuinely converted to Christianity (CB 270 at [19] to [21]). Further, the Authority found the applicant would not practice Christianity in Iran, nor would anyone in Iran be aware of his activities in Australia (CB 270 at [20]);
(c)the Authority noted inconsistencies in the applicant's account about his alleged wine‑making and, in light of its conclusions about his credibility, did not accept he was the subject of any outstanding charges. The Authority found the applicant would not continue to produce wine in Iran (CB 271 at [23] to [24]);
(d)the Authority accepted the applicant had been arrested and detained during a protest in 2009, however found the applicant was not otherwise involved in politics; and
(e)having regard to country information, the Authority did not accept the applicant's claim (made at the arrival interview) that he was convicted of an offence and given 60 lashes for walking in public with a female colleague. The Authority also rejected claims in relation to other charges on credibility grounds (CB 272 at [26] to [27]).
Having regard to its anterior factual findings, the applicant’s profile and country information, the Authority did not accept that he would face harm on account of any imputed political opinion. The Authority found the applicant's conduct in Australia was engaged in for the purpose of strengthening his claims and was therefore to be disregarded: s 5J(6) of the Act (at [31]). The Authority found there to be no credible evidence the applicant would seek to practise Christianity in Iran (CB 273 at [30]) to [31]). The Authority concluded the applicant would not face harm on account of his religion or as an apostate. The Authority did not accept the applicant would face harm on return because he made wine (CB 273 to 274 [31] to [33]).
The Authority considered country information and found the applicant would not face harm as a failed asylum seeker or western sympathiser (at [34] to [35]).
For the foregoing reasons, the Authority found the applicant did not meet the requirements of the definition of refugee in subsection 5H(1) of the Act (at [36]). For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion (at [39] to [41]). In this context, the Authority specifically addressed the matters disregarded under s 5J(6) of the Act. In particular, the Authority confirmed its factual findings that the applicant had not genuinely converted to Christianity, he would not practice Christianity in Iran, nor would anyone in Iran be aware of his activities in Australia (at [39]).
APPLICATION TO THIS COURT
Upon commencement, these proceedings were initially docketed to another Judge of this Court (first primary Judge). On 4 October 2018 a timetable was made by a Registrar which included an opportunity to the applicant to amend his application, with the proceedings to be stood over for a callover on 22 October 2019. The matter was indeed called over on that date before a Registrar, on which occasion it was stood over for either further callover before a Registrar or for a final hearing before the first primary Judge on a date to be administratively advised to the parties. The proceedings were later placed in the central migration docket and were called over again before a Registrar of the Court by telephone on 23 October 2024, on which occasion a self-executing timetable for further amendment by the applicant and the filing of written submissions was made.
On 20 January 2025, the proceedings were docketed to me, and I made orders on that occasion for a fresh timetable, including an additional grant of leave and a regime for submissions and listed the proceedings for hearing before me on 19 March 2025 (January orders), which date was later moved to 16 April 2025. The applicant filed written submissions on 21 February 2025 (being within the time of the grant of leave in the January orders). The first respondent filed written submissions in the matter also within time (but by reference to the adjourned hearing date). Other than a Notice of Address for Service and written submissions filed on 2 February 2025, the applicant has not filed any other documents and, specifically, has not sought to avail himself of the multiple opportunities to amend his application.
When the matter came before me for hearing on 16 April 2025 (first hearing), the applicant appeared in person and the Minister was represented by a solicitor. On that occasion, the applicant was assisted by an interpreter in the Farsi language. However, reasonably early in the hearing, I exercised my discretion to adjourn the proceedings in circumstances where I was not satisfied that the interpreter was able to properly hear the Court and the applicant (he confirmed he had hearing difficulties), nor that the interpreter was otherwise satisfactorily assisting the applicant in communicating with the Court. Accordingly, the proceedings adjourned so the Court could arrange an alternative interpreter.
The applicant has again appeared before me representing himself this morning with the assistance of a (different) interpreter in the Farsi language than attended the first hearing. The Minister is represented this time by the solicitor on the record. I am satisfied that the applicant and the interpreter have been able to understand each other and the hearing has proceeded in a much smoother fashion than it did at the first hearing. Given my dissatisfaction with the standard of interpretation at the first hearing, I repeated to the applicant the preliminary matters which I had addressed on that occasion. That included re-describing to him the procedures that would be followed, the role and limitations on what the Court could decide, the documents on the Court file, the re-tendering of the Court book, and all other administrative matters prior to addressing the grounds in the application for review. When identifying the documents on the file the applicant sought to provide a more detailed written submission than the version filed in February of this year. I adjourned briefly so that copies of that document could be made for the solicitor for the Minister and for the Court. When the hearing resumed, I asked the Minister's position in relation to the Court receiving that document. The solicitor for the Minister made submissions to the effect that it was similar in its content to the 21 February 2025 submissions, with some updates to reflect the effluxion of time, such as how long the applicant had now been in Australia.
The solicitor for the Minister drew particular attention to the new “section 5” of the written submissions, which reiterated the applicant's substantive claims, but also raised a new protection claim. Objection was taken to receipt of that section of the written submission on the basis that it could not go in any way to establishing a jurisdictional error on the part of the Authority, but there was no specific objection to receipt of the remainder of the document. Ultimately, I was of the view that in order to accord procedural fairness to the applicant the document should be received in its entirety, although I explained to the applicant the significant limitations on its utility based on the role of the Court which I had already described to him, specifically the lack of jurisdiction the Court has to grant the relief that is set out in “section 6” of that written submission. For that reason, the document has been of limited utility as has the applicant's initial written submission.
The Affidavit filed in support of the originating application also makes some brief statements as to the merits of the applicant's claims and for the same reason, and the fact that it only otherwise serves to annex the authority's decision, which is in the Court Book, I did not receive that Affidavit into evidence.
Grounds of review
In circumstances where the applicant has not availed himself of the opportunity to amend, notwithstanding three grants of leave in which to do so, the grounds which remain for consideration are those in the original application:
Ground 1: the authority erred in relying on an omission at arrival interview:
Particulars:
a- At [16], the Authority relied on the arrival interview to suggest that the applicant’s faith was Muslim Shia, the authority did not exercise caution in relation to this conclusion.
b- At [22], the authority relied on the arrival interview to conclude that the applicant was “inconsistent” at [23], MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436
Ground 2: At [17], the authority failed to properly understands the applicants claims in relation to the times spent in in learning about Christianity.
Ground 1
Ground one contends the Authority erred by “relying on an omission” at the applicant's arrival interview on 4 April 2013. The particulars to this ground take issue with the Authority's reference to the applicant having identified as a Muslim at his arrival interview (CB 269 to 270 [16]). The applicant contends the Authority erred by relying on that evidence 'to suggest that the applicant's faith was Muslim' and failed to 'exercise caution in relation to this conclusion'. In support of that contention, the applicant relies on MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (MZZJO) at [55] to [57] per North, Bromberg and Mortimer JJ (as her Honour then was).
When asked to speak to this ground today, the applicant said that when he was talking with his lawyer, he tried to say everything about his background so that the delegate could understand about the background of both himself, and his family in a historical sense. The applicant said that he did not say that he was a Muslim and that his objective at the time was to “give a full picture”.[1]
[1] Transcript dated 11 June 2025 (Transcript) at T9.43
I took the applicant to his protection visa application in the Court Book, noting that his evidence before the Authority was that he had been baptised on 14 July 2013 (CB 270 at [17]). That is at odds with the protection visa application, which was some three years later at which, at CB 70, in answer to Question 33. Question 33 asks:
Your religion (including denomination e.g. Shia Muslim) (if any)?
In answer to Question 33 the applicant’s typed response was:
I am a modern Shia Muslim (not conservative).
Today, the applicant said that his lawyer prepared the visa application and is therefore responsible for the answer to Question 33. I took the applicant to CB 90 and 91 which is the conclusion of this part of the protection visa application. The applicant confirmed that he had signed both the Australian Values Statement and the Declaration as to the truth of the content of his protection visa application. The applicant said he did not really read the document. He also suggested that there may have been errors on the part of the interpreter who was assisting to interpret between himself and the lawyer.
The solicitor for the Minister observed correctly that the Authority dealt with an explanation to this effect at the conclusion of [16] of its reasons (CB 269) where it said:
At his PV interview the applicant claimed that he is now a Christian. At his arrival interview the applicant stated his religion was Muslim Shia. At Q. 33 of his PV application (“Your religion”) the answer is: “I am a modern Shia Muslim (not conservative)”. In his statement of claims lodged with the PV application the applicant states at paragraph 2: “I am Farsi and a Shia Muslim”. At the PV interview on 2 November 2017 the applicant stated that when filling out his PV application his agent asked whether he were a Muslim “and I said I’m not”. Given the descriptive answer to Q. 33 of the application as set out above, I do not accept that this statement is true. This statement further undermines the applicant’s credibility.
As will be seen from the foregoing, the Authority observed that at the protection visa interview on 2 November 2017, the applicant stated that when filling out his visa application, his agent asked whether he was a Muslim, and if he were a Muslim, "And I said I am not". The Authority found that given the descriptive answer to Question 33 (see above at [28]), that it did not accept that statement to be true. By this, the Authority was saying that if the applicant had simply said he was not a Muslim, then Question 33 might have either been left blank or further inquiries as to what the applicant's actual religion might have been made by his agent in order to provide an answer. However, the inclusion of the statement that he was, in fact, a Shia Muslim and the inclusion specifically of the caveat/description of “not conservative” was at odds with his simply having told his lawyer that he was not a Muslim. I accept that this finding was open to the Authority. The solicitor for the first respondent says in relation to what was said from the Bar table today that there is no error based on the documentary evidence which was before the Authority and also the evidence which had been given to the delegate which the Authority considered.
The first respondent submits that this ground cannot be made out and it should be dismissed. Further, the applicant's reliance on MZZJO is misplaced. In that case, the appeal was dismissed, and the Court found the Tribunal's adverse credibility findings were open to it. However, the Court noted that 'some caution' should be exercised in relying on an applicant's omissions at an entry interview and noted that if the Tribunal had “relied only” on such omissions it may have demonstrated a “misunderstanding of its task on review”: see MZZJO (supra) at [56] to [57]. This is not that case.
The Authority considered the applicant's claim that he converted to Christianity after his arrival in Australia and was baptised as Christian at [16] to [21] (CB 260 to 271). The Authority noted that the applicant claimed that he was a Christian in his visa interview (at [16]). However, the Authority also noted that the applicant identified as a Muslim at his arrival interview on 4 April 2013, at question 33 of his visa application dated 29 April 2016, and in his statement dated 14 April 2016 filed in support of his application for the visa (at [16]). The applicant claimed to have converted to Christianity after arriving in Australia and to have been baptised on 14 July 2013 (at [17]), which was before the applicant claimed to be Muslim in his visa application and statement.
Notably, the applicant did not claim to have converted to Christianity prior to his arrival in Australia and so it would not necessarily be contradictory to his later claim to state his religion as being Muslim at the arrival interview. Indeed, the Authority did not purport to place any negative reliance on that information, it was merely recounting the various evidence that had been provided by the applicant in relation of his religion to date.
Further, contrary to what is alleged, the Authority went on to reject the applicant's claim for other reasons, namely inconsistencies in the evidence about the applicant's church attendance (CB 270 at [17]) and his limited knowledge of Christianity (CB 270 at [18]). In these circumstances, the Minister submits that there is an evident and intelligible justification for rejecting the applicant's claims: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ.
Ground 1(b) refers to [22] to [23] (CB 271) of the Authority’s decision, in which paragraphs the Authority set out its consideration of the charges relating to the applicant’s alleged winemaking. The Authority identified inconsistencies in the applicant's account of the circumstances giving rise to this claim by reference to evidence provided at the arrival interview (at [22] and [23]). However, the Authority rejected the applicant's claim that a particular person made a complaint about him relating to alcohol production and that there were related outstanding charges due to its conclusions regarding the applicant's credibility.
The Authority’s conclusion that the applicant was not credible was a finding of fact for the Authority to determine: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
The first respondent submits that there is nothing apparent in the Authority's reasoning in relation to the applicant's credibility that would suggest any error in its approach: CfCQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [36] to [38] per McKerracher, Griffiths and Rangiah JJ. This instant case is not one in which the Authority made adverse credibility findings on objectively minor matters to provide the basis for rejecting the entirety of the applicant's claims: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78] per Robertson J. To the contrary, the Authority highlighted various deficiencies in the applicant's account of his claims throughout its reasons (see for example, [9], [12], [16], [22]), each of which related to core elements of the applicant's claims to fear harm.
I agree with the submissions made for the first respondent at [32] to [38] above in particular, by reference to the factual findings of the Authority which I have set out at [14] above, it is not the case that the Authority relied only on an omission from the arrival interview in the manner identified in MZZJO (supra), and I am not satisfied that there is an error of that kind. Accordingly, ground one is not made out.
Ground 2
By ground two, the applicant refers to [17] of the Authority's decision and says that it failed to properly understand his claims about his conversion to Christianity.
The submissions made by the applicant at hearing today were somewhat confusing and at odds with what the Authority did in fact find. When asked to speak to the ground, the applicant said that he had provided a letter of the pastor. In fact, he provided two and those can be found at CB 191 and 256. The applicant said he was being “absolutely honest” with the Court. He said that in the church they used to “tick” items one by one for attendance and that he was not happy with that process.[2] This was clarified to explain a process of roll-call/ attendance taking. The applicant said that he did not stay for this attendance to be taken such that his name may not have been “ticked off”, that he did not wait for that to occur because he did not like it. However, that was not a relevant finding on the part of the Authority. The Authority observed that the pastor had given evidence that the applicant had largely good attendance, however, and that was recorded also in [17] of the Authority's decision (CB 270). Rather, what the Authority based its findings in this regard on was that there were difficulties with the applicant's address history which showed that he was not resident in New South Wales at some of the relevant times and that the applicant's own evidence was that his attendance was irregular for one to two years.
[2] Transcript at T12.15 and 22
The first respondent said that there is no error in relation to how the Authority dealt with the claims in respect of the conversion to Christianity, and certainly nothing that was said from the Bar table today has persuaded me otherwise.
The Authority considered the applicant's claimed conversion to Christianity and made dispositive findings in relation thereto (CB 269 to 271 at [16] to [21]). In particular, the Authority considered the applicant's claims and evidence and found he had not genuinely converted to Christianity (at [19] to [20]), that he would not practise Christianity in Iran, nor would anyone in Iran be aware of his activities in Australia (at [20]). Further, the Authority found the applicant's conduct in Australia was engaged in for the purpose of strengthening his claim and is to be disregarded: sub-s 5J(6) of the Act (at [31]). The Authority also specifically considered the conduct that was disregarded under sub-s 5J(6) of the Act in the context of complementary protection and confirmed its previous factual findings (CB 275 at [39]). The first respondent submits that these reasons reveal an evident and intelligible justification for rejecting the applicant's claim: Li (supra) at [76] per Hayne, Kiefel and Bell JJ.
When asked if he had any submissions to make in reply, the applicant again reiterated to the Court (seemingly addressing ground 1 again) that he had been seeking to provide a historical background about himself and his family and that, in seeking assistance from a lawyer, his object was to obtain protection for himself here in Australia.
In all the circumstances of this case, and having regard to the material, which was before the Authority, I am satisfied that the findings that it made (particularly at [16] and [17] being those which the applicant sought to impugn), were open to it. I am also not satisfied that there is a legal error of the kind alleged by grounds 1 or 2 or on the basis of anything that has been said by the applicant from the Bar table today. As I explained to the applicant, absent a jurisdictional error, I am not able to remit the matter to the (now) Administrative Review Tribunal. I also explained to him specifically that I do not have power to grant much the relief that he seeks in “section 6” of his written submission, including to compel Ministerial intervention as he asks.
CONCLUSION
Absent a jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
COSTS
Consequent upon the dismissal of the application, the first respondent seeks an order that the applicant pay the Minister's cost fixed in the current scale amount. When asked whether or not costs should follow the event and if so, in what amount, the applicant said that he had no submissions to make. Having regard to the nature and duration of the proceedings, I am satisfied that costs should follow the event. I am also satisfied that the amount sought is reasonable and represents a fair indemnity of the first respondent's costs in the present circumstances.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 30 June 2025
0
8
1