WAEK v MIMA

[2003] HCATrans 268

[2003] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P49 of 2002

B e t w e e n -

WAEK

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 11.23 AM

Copyright in the High Court of Australia

MR G.M.G. McINTYRE, SC:   Your Honours, I appear for the applicant.  (instructed by the applicant)

MS L.B. PRICE:   If the Court pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

GUMMOW J:   Yes, Mr McIntyre.

MR McINTYRE:   Your Honours, there is a brief outline of argument in this matter.  It raises a jurisdictional error and the nature of the point is that the Tribunal has fallen into error in categorising the basis for the well‑founded fear of persecution.  We put it on two bases.  One is that they have either incorrectly categorised the particular social group or, secondly, that they have erred in finding a social group and failing to look to the political opinion of this applicant which may in fact be the more proper basis or finding the well-founded fear of persecution.

KIRBY J:   What is your best attempt at defining the social group?

MR McINTYRE:   We would say that the social group is the group who supports ‑ ‑ ‑

GUMMOW J:   Plays sensuous music.

MR McINTYRE:   Yes, play or, indeed, it may extend to those who participate in hearing it as well because it would appear that if a person either is found to be at a venue where sensuous music is being played, they fall into the category which may be the subject of the law.

HEYDON J:   But where is the persecution, though?  The Tribunal rejected the applicant’s contentions about the drastic consequences that would flow.  

MR McINTYRE:   They only did so because of ‑ ‑ ‑

HEYDON J:   Page 21 I am thinking of.

MR McINTYRE:   They said that forcible amputation would not apply, but that is a very drastic consequence.  They did not reject the notion that there would be a punishment which would follow from the participation in sensuous music.  What they did say perhaps at lines 20 to 25 of page 21 is that they might not be targeted unless they were performing in public.  We would point that if the person chooses to limit the way in which they express themselves by playing sensuous music, that is not a proper basis for reaching the conclusion that there is no risk of persecution on that basis.  If

a person is entitled to express themselves – and we put the argument that it is a political expression‑ ‑ ‑

HEYDON J:   What about people who like to play noisy music?  Is there a law against noisy music?  Would that be persecution for a Convention reason?

MR McINTYRE:   No, because this is a matter of political opinion, ultimately, political/religious opinion.  The issue is one of moral belief and of exercise of power in relation to that moral belief.

HEYDON J:   The applicant said he used his music as a means of political expression through pro-monarchist music, but the Tribunal rejected that.

MR McINTYRE:   Yes, that is so.  What we say is that it is not necessary that the music be pro-monarchist.  The music, we suggest, is music which is of a kind which the Islamic religion finds morally reprehensible and the State endorses, being an Islamic State.

KIRBY J:   But all of this is merits argument.  It is really not a matter that would warrant the intervention of the Federal Court, let alone this Court.  I mean, I can understand the feelings of the applicant and we take for granted the diversity of music and expression and opinion, but these are matters that have to be weighed in the Tribunal.  Already this has been through four levels of decision making.

MR McINTYRE:   Yes, and obviously I am seeking to characterise it as the application of the tests which are under the Refugee Convention.  The test as to what constitutes a social group, firstly, we say that they have cast the net too widely in defining the social group, and that that is the legal test, if you like, of the application of the Refugee Convention.  We say that to conclude that the group is all musicians and then to say that the law applies generally fails to recognise that there is a group of people who are socially connected by their adherence to the view that they ought to be entitled to play sensuous music.  That group is the subject of discrimination by the State law which abides by the Islamic tradition that sensuous music should not be played.  That is a particular religious and political point of view. 

This group hold a different religious and political point of view and take the view that they ought to be entitled to express that point of view by playing sensuous music, that the Tribunal has applied the wrong test to whether or not this person fits within a category which is Convention related.  So that is the argument, your Honours.

GUMMOW J:   Yes, thank you.  We do not need to call on you, Ms Price.

The applicant has not shown error on the part of the Full Court of the Federal Court of Australia.  There are no prospects of success in this case, having regard to the limited role for judicial review afforded under the Migration Act 1958 (Cth). Special leave is refused and must be refused with costs.

AT 11.31 AM THE MATTER WAS CONCLUDED