FEDERAL COURT OF AUSTRALIA

Navader v Minister for Immigration & Multicultural Affairs [2002] FCA 325

Migration - Refugee Review Tribunal -  judicial review - Iranian national - musician - operator of music shop - claimed risk of persecution for playing Western music and possession of anti-regime CDs and tapes - disbelieved by Tribunal on critical aspects of claim - no error of law or procedure disclosed - application dismissed. 

ALI NAVADER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 249 OF 2001

FRENCH J

19 MARCH 2002

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.

REASONS FOR JUDGMENT

1                     The applicant is a national of Iran.  He arrived in Australia on 22 December 2000 by boat and without any visa.  He lodged an application for a protection visa on 1 March 2001.  That application was refused on 2 April 2001.  On 6 April, he applied to the Refugee Review Tribunal ("the Tribunal") for review of the decision refusing the protection visa.  On 5 June 2001, after an oral hearing, the Tribunal affirmed the decision not to grant a protection visa.  On 22 June, the applicant filed an application in the Federal Court for review of the Tribunal's decision.

2                     The grounds of the application assert that the Tribunal failed to observe procedures required to be observed.  They also assert that the decision involved an error of law by the Tribunal and that there was no evidence or other material to justify the making of the Tribunal's decision.  The applicant asked the Court to try and arrange a lawyer to represent him on the application.  The Court issued a certificate under O 80 of the Federal Court Rules referring the matter to volunteer lawyers.  However, despite repeated attempts to obtain the services of a volunteer lawyer, none was available.  So the applicant has had to represent himself on the hearing this morning.  That makes the position very difficult from his point of view.  He is unable to get any proper advice to help him to formulate an argument about the Tribunal's reasons.  Unfortunately, that is the situation in which many applicants to the Federal Court on refugee matters find themselves.

3                     As I explained to the applicant at the beginning, if the Court itself sees an apparent error of law or breach of procedure then it will raise that with the government lawyer and, if necessary, set aside the decision.  Nevertheless, the Court must remain neutral as between the applicant and the Minister.  In this case I can see nothing on the materials before me or in the submissions made by the applicant that would lead me to believe there was any error of law or breach of procedure by the Tribunal.

4                     In its reasons for decision the Tribunal set out the applicant's claims and the evidence before it.  In summary, the applicant says he is a singer and a musician.  He performs at weddings.  He said that in March 1999 he was singing at a wedding when a number of police entered the wedding party to arrest him.  He said he escaped out the back door to a neighbour's house.  The next day he went home and was later told that the groom had been arrested.  He said that police had given a warning that the groom would be detained until the applicant presented himself to police.  He also claimed that another order had been given that he not sing elsewhere. 

5                     He said he went to the police station and the groom was released but he was detained until the New Year holiday had finished.  He said he was taken to court and was sentenced to fifty lashes and ordered to pay a fine.  He said that when he was released he began working with the Education Department teaching music and then opened a musical instrument shop.  He said intelligence officials wanted to close his shop.  This was because Khameini had said that musical playing was the cause of the young generation leaving Islam.  In the event his shop was closed.

6                     Later he was singing at another wedding party when intelligence officials entered but he managed to escape.  The following day they visited his house and there found musical equipment, tapes and CDs with antigovernment political songs on them.  They also found a letter written to a musician in the United States with a list of songs.  His brother has a friend in the military.  His friend told the brother that if he could delay his trial for ten days the applicant could escape from Iran as he was now wanted for political reasons.  His brother paid a bribe to delay the trial.  The applicant went to Tehran and then paid a people smuggler money to come to Australia. 

7                     At the hearing he told the Tribunal that if he were returned it would put the lives of four other people at risk.  He would be tortured because some of the cassettes were anti-government and anti-mullah.  He told the Tribunal he was against the regime.  Eight days before he left Iran his house was raided by officials of the security intelligence office.  His brother had a friend in the army and so he was held for only one day. He told the Tribunal that he had been asked to perform for the President and the Supreme Leader.  He sang and played at weddings and gatherings.  The authorities tried to make life difficult for him as he became better known.  He said he left Iran on his own passport and his name was not on the black list.  He provided the Tribunal with translations of some of the poems he had written for his music.  One is about demagogue mullahs.  One is against the mullahs, another one is called Uprising and a third, is called Oppression.  His adviser told the Tribunal that he had an anti-government political profile. 

8                     The Tribunal then referred to information about the attitude of authorities in Iran to music.  It referred to a country profile prepared by the Department of Foreign Affairs and Trade in March 1996.  That referred to the prohibition of what was called "sensuous" music.  Morals police could detain people who played such music.  They could be subject to penalties such as fines and floggings.  They did not suffer a prison term, although they could be held in a police lockup for a few days.  The authorities tend to turn a blind eye to private performances of music.  Such performances are common at weddings and parties.  Another report from Foreign Affairs and Trade in November 2000 said there was no evidence to suggest that western rock musicians would suffer any particular legal penalties in Iran.

9                     The Tribunal also cited a reported dated 13 January 2001 from Reuters.  According to that report, Tehran's police chief had said he would crack down on illicit alcohol, films and CDs.  Shortly before this more than 300 people had been arrested in raids in two New Year's Eve parties.  People at the party had to pay heavy fines or received lashes before being released. 

10                  An article published in the Washington Post in November 2000 was mentioned.  It stated  that Iran was loosening its cultural restrictions.  It referred to coffeehouses in Tehran which played music from the west, although such music is formally prohibited.  The managers of six such coffeehouses asked that their names not be published because they feared harassment from the authorities.  The Tribunal then referred to country information concerning leaving Iran and the effect of applying for refugee status in Australia. 

11                  In its findings and reasons the Tribunal accepted that the applicant is a singer and musician and that he has worked in that occupation since 1987.  It found that playing music and being a singer is not illegal in Iran.  The applicant's own statements about being sent students by the Education Department made that clear.  Although western music is not broadcast on radio and television, this prohibition does not cover private parties and the authorities turn a blind eye to private performances of music which is "sensuous".  The Tribunal did not believe the applicant's story of what occurred at the wedding in March 1999.  It based its disbelief on country information about the toleration of private parties.  If the authorities were really after the applicant they would have been able to find him without any difficulty as he had gone home the following day.  The Tribunal did not accept his story about the groom being held in detention.

12                  The Tribunal noted that the applicant appeared to have been playing music in Iran from 1987 until 1999 without any problems.  Having regard to his claim that he was asked to play for the new President and the Supreme Leader, it did not accept that he would be thought of as an anti-government person.  His claim of harm following the wedding in March 1999 was not related to the Refugee Convention.  On his own story he was not punished because of any political opinion or because he was a member of a particular social group.  On his own story, which the Tribunal did not believe, he was punished for playing inappropriate music.

13                  The Tribunal also found that the applicant owned a music shop in Iran.  The fact that he had such a shop indicates that they are tolerated.  If the complaint was that he was playing unsuitable music from his shop the Tribunal accepted that it was conceivable that the authorities might move to close it down.  But the applicant did not allege that anything flowed from this.  He was able to earn a living as a musician and teacher.  On his own story, the closure of his shop had not deprived him of a livelihood so that it could have been said to have amounted to persecution.

14                  The Tribunal did not accept his story that ten days before leaving Iran he had escaped from another wedding.  It did not accept that the authorities then raided his house.  If the Tribunal were wrong about this the playing of "sensuous" or Western music at a wedding did not disclose a ground of persecution relevant to the Refugee Convention.  The Tribunal acknowledged the applicant's submission that he was at risk of persecution because he had cassette tapes with anti-regime music.  It did not accept that any tapes found, if his house had been raided, were so anti-regime that he would get into trouble.  He is a musician who, the Tribunal said, had not been involved in politics.  While it was possible that his house was searched for CDs and cassettes, the Tribunal did not believe that this led to him being considered anti-regime.  It did not accept his claim that he had postponed his Court hearing for ten days while he escaped from the country.  If he had been of serious interest to the authorities it would have been easy for them to crack down on his helpers.  The Tribunal did not accept the applicant's argument that his helpers would be at risk if he were returned.  It had read his poems but still did not believe that after more than ten years as a musician and ten days before his departure, he was caught with anti-regime material. The Tribunal did not accept that the material found would lead him to be regarded as anti-regime.  In the Tribunal's opinion he could return to Iran and continue to play music.  If he plays sensuous or western music then he might be at risk of punishment but that is not persecution.  The rules about music were rules of a general kind, which meant that if the applicant were punished it would not be for a Convention reason.

15                  In the Tribunal's opinion, the applicant was not of any interest to authorities at the time he departed.  It did not accept that he had paid a bribe to leave Iran.  The Tribunal therefore rejected all his claims.  Its reasoning showed that it disbelieved critical parts of the applicant's evidence and took the view that, in any event, the restrictions on western or sensuous music did not give rise to persecution for a Convention reason. It did not accept that he would be at any risk if returned to Iran, even if he had made a refugee application here in Australia.

16                  The Court is not able to interfere with the Tribunal's findings about the facts of the case.  The Court is unable to discern any error of law or procedure on the part of the Tribunal and the applicant has not been able to point to any such error.  For these reasons the

application will be dismissed and the applicant will have to pay the respondent's costs of the application.

Associate:

Dated:              March 2002