Mossavian v Minister for Immigration and Multicultural Affairs
[2001] FCA 1488
•24 OCTOBER 2001
FEDERAL COURT OF AUSTRALIA
Mossavian v Minister for Immigration & Multicultural Affairs [2001] FCA 1488
Migration Act 1958 (Cth) ss 476, 476(1)(e), 476(1)(g), 476(4)
SIAVASH MOSSAVIAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W122 of 2001RD NICHOLSON J
24 OCTOBER 2001
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W122 of 2001
BETWEEN:
SIAVASH MOSSAVIAN
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
RD NICHOLSON J
DATE OF ORDER:
24 OCTOBER 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W122 of 2001
BETWEEN:
SIAVASH MOSSAVIAN
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
24 OCTOBER 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant, a citizen of Iran, arrived in Australia illegally and undocumented by boat on 3 November 2000. He lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs (“DIMA”) under the Migration Act 1958 (Cth) (“the Act”) on 24 November 2000. Visa class XA includes two subclasses: 785 (Temporary protection) and 866 (Protection).
A delegate of the Minister refused to grant a protection (class XA) visa to the applicant on 22 December 2000.
The applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 29 December 2000. The Tribunal affirmed the decision not to grant a protection visa on 5 March 2001.
The applicant now applies to this Court under s 476 of the Act to review the decision of the Tribunal. Although the Act has recently been extensively amended, it is accepted for the respondent that none of the amendments has any application here.
The relevant legislative provisions
Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” 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 expression “Convention” will be used to mean the Convention as amended by the Protocol.
Article 1a(2) of the Convention defines a “refugee” to be any 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
Tribunal’s findings of fact
The Tribunal determined the following in relation to the applicant’s circumstances:
He was born in Ahwaz, in Iran. He is a musician who has been playing music since he was 12 years old. He was a member of a musical band and likes to play the music of the people of the coastal areas of Iran. He has played such music at functions and celebrations like weddings and festivals. However there are restrictions on the playing of certain types of music in public and private in some circumstances in Iran. As a result he has encountered difficulty from the Basiji on two occasions when playing “happy” music, as part of a band. He was detained overnight on one occasion and briefly on another occasion. His musical instruments were confiscated and Basiji mistreated him.
The principal findings and conclusions of the Tribunal were:
“(i)The Tribunal accepted that the Applicant is a musician and is a member of a musical band and likes to play the music of the people of the coastal areas of Iran. The Tribunal accepted that the Applicant has played such music at functions and celebrations like weddings and festivals, and accepted that there are restrictions on the playing of certain types of music in public and in private in some circumstances in Iran. (at pp. 106-107)
(ii)The Tribunal did not believe that the Applicant was lashed and did not accept that the Applicant was lashed for a first or second offence in the circumstances which he described. (at p. 107)
(iii)The Tribunal rejected the Applicant’s claim that on the last occasion he played music he had to escape from a party where he had performed pro-monarchist songs for a person who was about to leave for Canada. The Tribunal also rejected the Applicant’s claim that his mother had told him that police had arrested a person with the film of the Applicant playing the pro-monarchist songs. (at p. 107)
(iv)The Tribunal accepted that the Applicant had encountered difficulty from the Basiji on two occasions when he was playing “happy” music, and accepted that he was detained overnight on one occasion and briefly on another occasion, and that his musical instruments were confiscated and that the Basiji had mistreated him. (at p. 108)
(v)The Tribunal rejected the Applicant’s claim that he is at risk of forcible amputation for playing music. (at p. 108)
(vi)The Tribunal was satisfied based upon country information that the law that the Applicant claimed he had breached (by playing “happy” music) is a law of general application, and the Tribunal was not satisfied that the real purpose of the law was to persecute for a Convention reason. (at p. 110)
(vii)The Tribunal was satisfied that the brief detention undergone by the Applicant was in conformity with the general law in Iran, and was not satisfied that the law was applied to the Applicant in a discriminatory manner or for a Convention related reason. (at p. 110)
(viii)The Tribunal could not be satisfied that the Applicant had been imputed with a political opinion in the past or that he had been persecuted in the past for reason of his imputed political opinion. The Tribunal was not satisfied that the Applicant would be persecuted in Iran in the foreseeable future for reason of his political opinion. (at p. 110)
(ix)The Tribunal was satisfied that any difficulties the Applicant encountered were because by playing music at parties he was contravening the Islamic code, and the treatment he encountered was therefore the application of a generally applicable criminal law. (at p.111)
(x)The Tribunal was satisfied that the Applicant was targeted because he was breaking the Islamic code by playing music at parties contrary to the law, and not because he is a musician. (at p. 111)
(xi)The Tribunal was satisfied that the Applicant’s fear of persecution for reason of his membership of a particular social group of musicians was not well-founded. (at p. 111)
(xii)The Tribunal did not accept that the Applicant’s fear of persecution was well-founded simply because he is a musician who wishes to play modern music. (at p. 111)
(xiii)The Tribunal did not accept that the Applicant’s inability to play his music publicly contrary to current law in Iran was tantamount to preventing him from working. (at pp. 111 – 112)
(xiv)The Tribunal was not satisfied that the Applicant’s claims to have departed Iran suddenly, or that his lack of documentation would make him subject to persecution upon return to Iran, gave rise to a well-founded fear of being persecuted within the meaning of the Convention. (at p. 113)
(xv)While recognising that the Applicant may fear persecution for more than one reason, and having considered each of the Applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the Applicant has a well-founded fear of persecution upon return to Iran. (at p. 113)
Grounds of review
The grounds in the applicant’s application appear to follow a standard form used by persons in detention awaiting determination of their claim for a protection visa. The grounds relied upon are that there was no evidence or other material to justify the making of the decision that the applicant did not have a well founded fear of persecution by reason of political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future. The second ground is that the decision involved an error of law being an applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.
Pro bono counsel appointed to assist the applicant pursuant to O 80 subr 4(1) chose to file written submissions but not to appear for the applicant. In those written submissions two grounds are relied upon. The first was that the Tribunal erred in finding that the applicant had breached laws which were laws of general application. The second was that the Tribunal erred in finding that the applicant did not have a well-founded fear of persecution for a Convention reason. This second ground may be considered to follow the terms of the first ground in the written application for review.
Whether no evidence or other material to justify the finding of absence of well founded fear
The first ground of review reflects s 476(1)(g) of the Act. However, that ground of review can only be made out if an applicant establishes the requirements of either pars (a) or (b) of s 476(4) of the Act. The applicant has not suggested any basis upon which either pars (a) or (b) of s 476(4) is applicable.
Further, and in any event, even if the applicant could establish the requirements of either pars (a) or (b) of s 476(4) of the Act, he would still have to establish that there was no evidence or other material to justify the making of the Tribunal’s decision. The Tribunal’s reasons for decision clearly demonstrate that it could not be said that there was “no evidence or other material” to justify the making of its decision.
In the written submissions this ground was further supported by submissions to the following effect:
“The Tribunal erred in finding that it could not be satisfied that the applicant had been imputed with a political opinion given that the Tribunal found that the applicant’s detention and mistreatment was for non-adherence to the Islamic Code.
Given that religion, politics and law are interwoven in Iran, it could not be said that the applicant’s inability to live according to the tenets espoused by the Islamic regime could not impute to him an anti-political, anti-government or even an anti-religious opinion.
These submissions are to be considered in the context of findings (vi), (vii) and (viii) above. The submissions do not support a finding of any error of law within s 476(1)(e) of the Act. Rather these submissions invite the Court to engage in merits review in remaking these findings of the Tribunal. That course is not open to it.
It is submitted for the applicant:
“…it could not be said that the law was one of general application when the country information says that the enforcement of bans against playing music appears to be arbitrary, varying widely depending on the circumstances under which the violators were arrested, the political, economic and social situation of the people arrested and the personality of the people in charge of each specific case who determine the penalty for the respective violators and when the penalties for breach of such bans can range from a fine to a lashing or imprisonment.”
This submission seeks for the Court to re-examine the evidence before the Tribunal and to make a fresh finding of fact. That lies beyond the jurisdiction of the Court. The Tribunal findings of fact that the laws which were breached were laws of general application.
It is also submitted:
“The Tribunal erred in finding that the applicant’s fear of persecution for reason of his membership of a particular social group, namely musicians, was not well-founded given that it found that the difficulties the applicant encountered were because he played a particular style of music. To draw a distinction between the playing of music and contravention of the Islamic code is artificial.”
This submission is to be considered in the context of findings (x), (xi) and (xii) above. Those findings show that the Tribunal did not in its findings dispute the membership by the applicant of musicians as a particular social group. Rather it approached the matter on the basis that even if that was the case he had no basis for a well-founded Convention fear. The consequence was, as the Tribunal found, that any basis of the applicant’s fear was his breach of the Islamic code. The submission in essence invites the Court to impermissibly review the merits of the Tribunal’s findings on these matters.
The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal
The Tribunal’s reasons for decision demonstrate that the Tribunal correctly interpreted the applicable law. Further, given the Tribunal’s findings and conclusions, the Tribunal did not incorrectly apply the law to the facts as found by it.
The applicant’s handwritten submissions to the Court also address issues pertaining to merits review which lie beyond the jurisdiction of the Court. They recount his view of life which would face him back in Iran and address findings of the Tribunal in the context that he should be believed to the contrary on certain facts. These submissions do not establish any error of law on the part of the Tribunal.
Conclusion
The applicant is a young man with an evident interest in and capacity for playing music. His inability to find expression for his personality and that interest in the context of his country could indeed engage the sympathy of anyone called upon to judge his case. However, those considerations cannot weigh with this Court, the function of which is to determine whether or not there is any error of law in the decision of the Tribunal within the terms permitted by s 476 of the Act.
For these reasons I consider that no such case has been made out.
I certify that the preceding twenty – two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.
Associate:
Dated: 24 October 2001
The applicant represented himself
Counsel for the Respondent:
Mr P Macliver
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
22 October 2001
Date of Judgment:
24 October 2001
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