FEDERAL COURT OF AUSTRALIA
VFAC v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 367MIGRATION – application for protection visa – applicant converted from Islam to Christianity – Tribunal found that discreet practice of religion could prevent discovery by Iranian authorities of act of apostasy – whether applicant required or expected to modify behaviour to avoid persecutory harm
Migration Act 1958 (Cth) Pt 8
Judiciary Act 1903 (Cth) s 39BAppellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112 applied
Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 considered
SGKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 44 followedAPPLICANT VFAC OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V459 of 2002
WEINBERG J
31 MARCH 2004
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V459 OF 2002
BETWEEN:
APPLICANT VFAC OF 2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
31 MARCH 2004
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The decision of the Refugee Review Tribunal be set aside.
2.The matter be remitted to the Refugee Review Tribunal to be heard and determined according to law.
3.The applicant pay the costs of and incidental to the hearings on 21 March, 30 May and 12 December 2003.
4.The respondent pay the costs of and incidental to the hearing on 23 February 2004.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V459 OF 2002
BETWEEN:
APPLICANT VFAC OF 2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
WEINBERG J
DATE:
31 MARCH 2004
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application under Pt 8 of the Migration Act 1958 (Cth) and s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 21 June 2002. By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a Protection (Class XA) visa.
The applicant, a national of the Islamic Republic of Iran, arrived in Australia on 16 February 2001. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 16 March 2001. That application was refused on 1 November 2001. On 21 June 2002, the Tribunal affirmed the decision not to grant a protection visa.
This application has had a somewhat unusual history. Initially, the applicant was unrepresented. During the course of his oral submissions, he made a series of quite startling allegations against the Tribunal member which, if true, might well have resulted in the Tribunal’s decision being set aside on the ground of bias. I adjourned the hearing of the application to enable the applicant to receive pro bono assistance.
A later hearing was also adjourned after pro bono counsel…
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- Case
- [2004] FCA 367
- Decision Date
CaseChat Overview and Summary
The central legal issue in this case was whether the RRT had correctly applied the law in requiring the applicant to practice his Christian faith discreetly to avoid persecution. The case of S395 established that asylum seekers are not required to take reasonable steps to avoid persecution, and the applicant argued that the RRT had misapplied this principle by finding that he could avoid persecution if he remained discreet in his observance of Christianity. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA), contended that the RRT's decision was sound, and that the applicant's apostasy would not come to the attention of the Iranian authorities if he remained discreet.
The Federal Court of Australia found in favour of the applicant, holding that the RRT had erred in requiring the applicant to practice his Christian faith discreetly to avoid persecution. The Court found that S395 established that asylum seekers are not required to take reasonable steps to avoid persecution, and that the Tribunal had imposed upon the applicant an obligation that he was not required to assume. The Court held that the Tribunal had failed to address the effect that the applicant's act of apostasy might have upon him if he were required to return to Iran, and that its approach to this issue was essentially the same as that which was held to constitute jurisdictional error in S395.
The Court set aside the decision of the RRT and remitted the matter to the RRT to be heard and determined according to law. The Court also ordered that the applicant pay the costs of and incidental to the hearings on 21 March, 30 May and 12 December 2003, and that the respondent pay the costs of and incidental to the hearing on 23 February 2004.
Orders
Orders of the court
1. The decision of the Refugee Review Tribunal be set aside.
2. The matter be remitted to the Refugee Review Tribunal to be heard and determined according to law.
3. The applicant pay the costs of and incidental to the hearings on 21 March, 30 May and 12 December 2003.
4. The respondent pay the costs of and incidental to the hearing on 23 February 2004.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: WEINBERG J
Mr Tracey then noted that the Tribunal had rejected the applicant’s claim that he would feel completed to proselytise, or otherwise draw attention to himself, if he returned to Iran. He submitted that, in light of that finding, the Tribunal had been entitled to conclude that if the applicant were discreet in his observance of the tenets of Christianity, his apostasy would be unlikely to come to the attention of the Iranian authorities. He submitted that every case had to be to considered on its own peculiar facts, and that no error could be demonstrated in relation to the Tribunal’s findings.CONSIDERATION In my view, Mr Hanks’ contentions regarding the scope and effect of S395 are correct. I am unable to see any significance in the fact that the judgment in that case was delivered by a sharply divided Court. There is a clear majority view although there are subtle differences in the manner of expression in the two joint majority judgments. The unifying principle underlying those judgments can be readily discerned. Asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. Nor are they expected to live “discreetly” to avoid such harm. The very vice that was identified in the Tribunal’s reasoning in S395 is also to be found in its reasoning in the present case. The Tribunal, having found that the applicant would not engage in proselytising, or otherwise actively draw attention to himself, then concluded that it was unlikely, assuming that he kept a low profile, that the Iranian authorities would come to learn about his apostasy. It may well be that this factual finding was open, though it might be regarded by many as implausible. Nonetheless, it provides no answer to the proposition that the Tribunal has imposed upon the applicant, as an asylum seeker, an obligation that S395 holds that he is not required to assume. The country information to which the Tribunal referred, and which it appeared to regard as reliable, suggested that those who had committed apostasy could be subjected to various forms of discrimination. Although there were few recorded instances of apostates having been executed, there were many instances of lesser harm having been inflicted upon such individuals. Plainly, nothing in the country information supported the conclusion that an apostate, whose conversion became known, could not have a well-founded fear of persecution. The applicant’s case seems to me, if anything, stronger than the case of the appellant in SKGB. There, the asylum seeker did not exhibit any interest in Christianity until some time after his arrival in Australia. In the present case, however, the applicant developed links with Christianity whilst still in Iran, and underwent a formal conversion shortly after he arrived in this country. He thereby committed the crime of apostasy under Iranian law. The Tribunal, at no stage, addressed the effect that this act of apostasy might have upon the applicant if he were required to return to Iran. It avoided that issue only by finding that he could conceal his apostasy by practising his Christian faith in a discreet manner. S395 establishes that this is the very thing that the applicant is not required to do in order to avoid persecutory harm. The Tribunal’s approach to this issue is essentially the same as that which was held to constitute jurisdictional error in that case.