FEDERAL COURT OF AUSTRALIA

Giloni v Minister for Immigration and Multicultural Affairs [2002] FCA 327

MIGRATION – application for review – whether Tribunal erred in not inquiring as to whether Iranian authorities would check the applicant’s Military Service card if returned to his home country – inquiries by Tribunal

Migration Act 1987 (Cth) s 430

G v Minister for Immigration and Multicultural Affairs (2000) FCA 1595 distinguished

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

IROJ GILONI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W430 OF 2001

TAMBERLIN J

SYDNEY

13 MARCH 2002

THE COURT ORDERS THAT:

1.         The application for review is dismissed.

2.         The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter the applicant, an Iranian citizen, seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) given on 5 September 2001, affirming a delegate's decision refusing a protection visa on the basis of his claim and that of his wife and children to be refugees.  The applicant and his family arrived in Australia on 27 August 2000.  The applicant does not have any travel documents in the nature of a passport or other document.  This has either expired, has been destroyed or lost in some way.   The specific details as to fate of the travel documents that he may have had are not of critical importance in this application.

2                     It was accepted by the Tribunal that the applicant and his family are of the Sabian Madaen faith, which is a small minority faith in Iran.  The applicant claims that he and his family were in danger or faced a real risk of persecution if returned to Iran by reason of his membership of this faith and that of his family and particularly because of the military service which he undertook in the three month period in 1988.  He claimed that he served in the Iranian army and this was forbidden to non-Muslims.  He is concerned and fears that his service may be discovered and that as a consequence he will be persecuted.

3                     Accordingly, it is said that the persecution is directed to the basis of his faith as the criterion of persecution and that therefore he is within the Refugees Convention.  A number of matters are raised in the written submissions on behalf of the applicant and in the application for review, but during the hearing before me only one matter was pressed which related to what should have been considered by the Tribunal in relation to the return or possible return of the applicant and his family to Iran.

4                     The Tribunal found that he was of the faith which he claimed and so was his family but it did not find his other claims to be credible.  It also found that, in relation to his protection visa application and his claims to the Tribunal, the applicant had perpetrated acts of deceit and untruths and he could not be found to be anything other than totally lacking in credibility.  There is no challenge to these findings and indeed they are questions of fact.  The challenge which is made is that the Tribunal failed to inquire into or consider the fate or the possible risk to the applicant and his family if returned to Iran without travel documents.

5                     The only document it is said which the applicant could produce would be a military card testifying as to his military service and this contains false information.  It is submitted that the Tribunal ought to have inquired as to whether if returned there was a real risk that the authorities would check the details on the applicant’s military card and discover that the applicant had either forged the card or had carried out military service contrary to what is accepted in the Tribunal’s decision as being Iranian law namely that a non-Muslim could not serve in the army.

6                     As a consequence of not having travel documents it is submitted that it is logical to accept that the applicant and his family would be subjected to a greater degree of scrutiny than would otherwise normally be applicable.  Accordingly it is said if this possibility exists  as a real chance, then this is a matter which the Tribunal did not deal with and which it ought to have dealt with.  It is submitted that inquiries ought to have been made as to what might occur if the applicant returned and the likely dangers that he would face, but no such inquiries were made.

7                     It is said that this is a fundamental error law, sufficient to warrant the setting aside of the decision of the Tribunal.  There are several difficulties with this submission.  The first is that no claim for protection as a result of the making available of information in connection with the present application was made to the Tribunal.  It is a function of this Court on judicial review to examine what was before the Tribunal and the claims which were made to the Tribunal in order to determine whether there has been error of a reviewable kind.

8                     If no submission was made to the Tribunal then the application must be on the basis that the facts gave rise to a necessity to make an inquiry.  I am not satisfied in the present case that the facts did give rise to the need to make such an inquiry.  The matters which have been mentioned as possibilities are purely matters of speculation and there is no evidence to indicate what Iranian authorities would do in relation to the return of the applicant with the only document in his possession being the military service card to indicate his status.

9                     The circumstances before me are to be contrasted with a decision of French J in the case of G v Minister for Immigration and Multicultural Affairs (2000) FCA 1595 at [31] through to [35].  In that case the submission, that the application for the protection visa itself gave rise to a risk of persecution based upon imputed political opposition to the Iraqi regime, was in fact before the Tribunal.  This is to be contrasted with the present case.  There was also evidence before the Tribunal in that case, which was referred to by his Honour, to the effect that although the Tribunal had not adverted specifically to the material, there was material before it in that case that the monitoring of Iraqi refugee claimants occurs within Australia.  There is no such evidence in this case to which I have been referred to indicate in any way that Iranian authorities are carrying out a similar exercise.  For these reasons the present case is distinguishable from the case of G.

10                  In addition, however, the decision in G was delivered on 9 November 2000 which was prior to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  In Yusuf it was made clear that there was no necessity under s 430 of the Migration Act 1958 (Cth) to make a finding which would give rise to a reviewable ground.  The Court held in that case that it was for the Court to look at the findings which in fact had been made and not at the findings which might otherwise have been made.  For this reason the decision in G is not in point in the present case.  However, it was relied on to indicate that it was appropriate or could be considered appropriate to make investigations.

11                  The making of investigations requires some basis on which investigations might be made and so far as I can determine there was nothing before the Tribunal specifically to indicate what would happen if the applicant were returned to Iran or what policies the Iranian Government or authorities would apply in considering the application or re-entry of a national to the country.  Accordingly, I am not satisfied that the ground raised in the submissions and argued before me which is the only ground on which the matter was addressed, has been made out and accordingly I would dismiss the application for review.

12                  I order that the applicant should pay the respondent's costs.

Associate:

Dated:              10 April 2002