Appellant WAEK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 117 (7 May 2002)

Last Updated: 10 May 2002

FEDERAL COURT OF AUSTRALIA

Appellant WAEK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 117

MIGRATION - appeal from decision of primary judge dismissing appeal from Refugee Review Tribunal - protection visa application - appellant claimed persecution from Iranian authorities because of the nature of his employment as a musician - whether error of law - whether no evidence or other material to justify the making of the decision refusing to grant the protection visa

APPELLANT WAEK OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W32 OF 2002

BRANSON, GOLDBERG & ALLSOP JJ

7 MAY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W32 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEK OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BRANSON, GOLDBERG & ALLSOP JJ
DATE OF ORDER:	7 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W32 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEK OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BRANSON, GOLDBERG & ALLSOP JJ
DATE:	7 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1 By an order dated 24 October 2001 a judge of the Court (R D Nicholson J) dismissed an application dated 12 April 2001 made by the appellant for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had on 4 April 2001 affirmed a decision of a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate") to refuse to grant the appellant a protection visa. The appellant has appealed to the Full Court from the order made by R D Nicholson J. The law to be applied on the appeal is the law in force prior to the coming into operation of the new judicial review scheme that applies to all visa-related decisions made on and from 2 October 2001 and all Court applications made on and from the same date.

2 To obtain the protection visa that he sought, the appellant was required to satisfy the Tribunal that he is a person "... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (s 36(2) of the Migration Act 1958 (Cth) ("the Act")). For the purposes of the Act, the Refugees Convention is the Convention relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol relating to the Status of Refugees 1967. The Refugees Convention as amended by the 1967 Protocol will hereafter be referred to simply as "the Convention". For present purposes the appellant is a person to whom Australia has protection obligations under the Convention if he is a person who:

"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ... ."

CLAIMS OF THE APPELLANT

3 The appellant arrived in Australia by boat on 3 November 2000. He held no visa to enter Australia. He was interviewed with the assistance of a Farsi interpreter on 13 November 2000. He said at that time that he wished to leave his country of citizenship, Iran, because of the nature of his work. He described the nature of his employment as "musician at functions with band". He claimed that playing "joyful" music is illegal in Iran and that he has been arrested a few times, and his instruments broken, because he was playing at mixed parties. He further claimed that he had been warned that if he was caught again he would be jailed and his fingers chopped off. He said that he did not wish to return to Iran because there is no freedom there.

4 A further statement was taken from the appellant with the assistance of a Farsi interpreter on 24 November 2000. That statement records the following:

"I am a member of a musical band called Bandari Arvand. Music is in my blood and I have been playing since I was 12 ...

We play at functions like celebrations, weddings, festivals and so on. It has to be semi secret because the government has banned the playing of "happy" music. This has been the situation for the whole of the time I have been playing in the band.

It is difficult to keep a band a secret so when we played at a function the host usually had to pay a bribe to the authorities so that the function was not disturbed by the Basigi. We did however have a lot of trouble with the authorities.

Three years ago we were playing at a wedding reception. ... we started to perform at 6pm but at 11pm the Basigi arrived and took us to their headquarters. They kept us there until the next morning. They smashed our musical instruments. Because I was the youngest in the band they beat me. They also beat the others but the [sic] beat me the hardest.

We had to give an undertaking not to play our music again.

...

Two months before I finished my military service (approximately April/May 2000) we were playing at another wedding reception ... . At about 10pm the Basigi arrived and took us to their headquarters. Again they smashed our musical instruments. They beat me and made us give another undertaking not to play our music. They told us that next time there would be a very heavy penalty and there would be a possibility that our fingers would be cut off. This is why I decided to leave Iran.

After I completed my military service I applied for a passport and obtained it. ... ."

5 Before the Tribunal the appellant claimed to have been flogged ninety times on two occasions for playing music. He also said that he had twice had his instruments confiscated and on a third occasion he had to escape as he was at a party at which pro-monarchist songs were performed and a videotape made of the performance.

REASONS OF TRIBUNAL

6 The Tribunal accepted that the appellant is a musician who had been playing music since he was twelve years old. It also accepted that he is a member of a band which has played music at functions like weddings and festivals and as a consequence encountered difficulties with the Basiji on two occasions when the band played "happy" music. The Tribunal found that he was detained overnight on one occasion and briefly on another occasion, that his musical instruments were confiscated and that the Basiji mistreated him. The Tribunal, however, rejected the appellant's claim that he was flogged or lashed and it rejected his claim to be at risk of having his fingers amputated. The Tribunal also rejected the appellant's claim that he had used his music as a means of political expression through pro-monarchist music.

7 The Tribunal was satisfied, on the basis of country information to which it referred, that the Iranian law which the appellant claimed to have breached was the religious law which prohibits the playing of sensuous music. It found that this law is a law of general application which was not enforced against the appellant in a discriminatory way or for a Convention related reason. The Tribunal was not satisfied that the appellant had had any relevant political opinion imputed to him by the Iranian authorities. For this reason it was not satisfied that he would be persecuted in Iran in the foreseeable future for reason of his political opinion. The Tribunal did not make a finding as to whether musicians in Iran constitute a particular social group as it was satisfied that, even if the appellant were a member of such a social group, his fear of persecution for reason of his membership of the group was not well-founded. Finally, the Tribunal was not satisfied that the appellant's sudden departure from Iran, or his lack of documentation, gave rise to a well-founded fear of persecution for a Convention reason should he return to Iran.

8 The Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Convention. It affirmed the decision of the delegate to refuse to grant him a protection visa.

REASONS FOR PRIMARY JUDGE

9 The grounds upon which the appellant sought review of the decision of the Tribunal were that:

(a) there was no evidence or other material to justify the making of the decision; and

(b) the decision involved an error of law.

10 Pro bono counsel appointed pursuant to O 80 r 4(1) of the Federal Court Rules to assist the appellant filed written submissions on his behalf but he did not appear before the learned primary judge. The written submissions contended that the Tribunal had erred in finding that the appellant had breached laws of general application and had further erred in concluding that the appellant did not have a well-founded fear of persecution for a Convention reason.

11 R D Nicholson J noted that the "no evidence" ground of review (see s 476(1)(g) of the Act) can only be made out if the requirements of either pars (a) or (b) of s 476(4) of the Act are met. Section 476(4) provides:

"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

12 The primary judge observed that the appellant had not suggested any basis upon which either pars (a) or (b) of s 476(4) was satisfied. His Honour concluded that, in any event, the Tribunal's reasons for decision clearly demonstrated that there was evidence or other material to justify the making of the Tribunal's decision.

13 All of the other submissions made to the primary judge in support of the "no evidence" ground his Honour characterised as impermissible invitations to the Court to engage in merits review.

14 As to the "error of law" ground, the primary judge concluded that the Tribunal's reasons for decision demonstrated that the Tribunal correctly interpreted the applicable law and correctly applied that law to the facts as found by it.

APPEAL TO THE FULL COURT

15 The appellant's notice of appeal from the judgment of the primary judge appears to have been drawn without legal assistance. The grounds of appeal contained in it do not seek to identify any error said to have been made by the primary judge. The purported grounds of appeal are simply a re-statement in summary form of the claims previously made by the appellant.

16 However, as the appellant did not have legal assistance in the presentation of his appeal, we have given careful attention to both the reasons for decision of the Tribunal and the reasons for judgment of the primary judge lest a legitimate ground of appeal should be available to the appellant. Having done so, we have not been able to identify any error in the approach adopted by the primary judge or in the conclusion reached by him.

17 The appellant in his submissions referred to and adopted the contents of a handwritten document which he provided to the Court prior to the hearing before the primary judge. We have ourselves considered this document. We accept his Honour's description of the document as one which addresses issues pertaining to merits review which lie beyond the jurisdiction of the Court. They do not establish any error by the Tribunal or the primary judge.

18 We do not accept, as the appellant suggested today, that the Tribunal was biased in that it sat only to reject his application. This ground was not raised in the submissions prepared on the appellant's behalf on his application to the primary judge and we find no support for it in the written reasons for decision of the Tribunal.

19 To the extent that the appellant sought by his notice of appeal to rely on events which have arisen since the decision of the Tribunal, these are not matters to which this Court is entitled to give consideration. A genuine or significant change in circumstances might in an appropriate case justify an application to the Minister. We are not in a position to conclude whether this is such a case.

CONCLUSION

20 The appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 9 May 2002

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms L B Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 2002
Date of Judgment:	7 May 2002