VFAC v MIMIA

In the case of VFAC v MIMIA, the applicant, an Iranian national, sought refugee status in Australia due to the risk of persecution he would face if returned to Iran on account of his conversion to Christianity. The Refugee Review Tribunal (RRT) denied his application, finding that the applicant could avoid persecution by practising his Christian faith discreetly. The applicant sought judicial review of this decision in the Federal Court of Australia, arguing that the RRT had erred in imposing a requirement upon him to avoid detection of his apostasy.

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.