Amanyar v Minister for Immigration and Ethnic Affairs
[1995] FCA 1050
•22 DECEMBER 1995
CATCHWORDS
Immigration - Visa - Application made before but decided after amendments effected by Migration Reform Act 1992 - Decision not "a judicially-reviewable decision" within Part 8 of the Migration Act 1958 as so amended.
Immigration - Meaning of "discrimination" in Regulation 103 of the Migration Regulations.
Immigration - Meaning of "persecution" in Regulation 102 of the Migration Regulations.
Migration Act 1958 Part 8
Migration Reform Act 1992 s40
Migration Reform (Transitional Provisions) Regulations (S.R. No. 261 of 1994) reg22
NOORIA AMANYAR and AMINULLAH SAADAT v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG425 of 1994
Jenkinson J.
Melbourne
22 December, 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG425 of 1994
GENERAL DIVISION )
BETWEEN:NOORIA AMANYAR
Firstnamed Applicant
AND: AMINULLAH SAADAT
Secondnamed Applicant
AND:THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 22 December, 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
Pursuant to section 11 of the Administrative Decisions (Judicial Review) Act 1997 the time within which the originating application shall be lodged with a Registry be extended until 1 December 1994.
The proceeding be dismissed.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG425 of 1994
GENERAL DIVISION )
BETWEEN:NOORIA AMANYAR
Firstnamed Applicant
AND: AMINULLAH SAADAT
Secondnamed Applicant
AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: Jenkinson J.
PLACE; Melbourne
DATE: 22 December, 1995
REASONS FOR JUDGMENT
Application for an order of review in respect of decisions that the applicant Nooria Amanyar be refused a visa under the Migration Act 1958.
Mrs. Amanyar made application for a visa in the approved form dated 21 August 1992 at Islamabad in Pakistan. The classes of visa the subjects of the application were that called a global special humanitarian program visa and that called a refugee visa. Certain criteria were prescribed by the Migration Regulations as "additional criteria" in relation to each of those classes, in Regulations 100, 101 and 103, which then provided:
"100 (1) For the purposes of this Division, a person:
(a) who is a non-citizen; and
(b) whose permanent settlement in Australia would be consistent with the regional and global priorities of the Commonwealth in relation to the permanent settlement of persons in Australia on humanitarian grounds;
is to be taken to be a person subject to persecution if the Minister, having regard to:
(c) the degree of persecution experienced by the person:
(i)in the country of which the person is a citizen; or
(ii)if the person is not usually a resident of that country - in the person's usual country of residence; and
(d) the extent of the person's connection with Australia; and
(e) whether or not there is any suitable country available, other than Australia, which can provide for the person settlement and protection from persecution; and
(f) the capacity of the Australian community to provide for the permanent settlement of such persons in Australia;
is satisfied that there are compelling reasons for giving special consideration to granting to the person a permanent entry visa or a permanent entry permit.
(2) For the purposes of this Division, a person:
(a) who is a non-citizen; and
(b) whose permanent settlement in Australia would be consistent with the regional and global priorities of the Commonwealth in relation to the permanent settlement of persons
in Australia on humanitarian grounds;is to be taken to be a person subject to discrimination if the Minister, having regard to:
(c) the degree of discrimination experienced by the person:
(i)in the country of which the person is a citizen; or
(ii)if the person is not usually a resident of that country - in the person's usual country of residence; and
(d) the extent of the person's connection with Australia; and
(e) whether or not there is any suitable country available, other than Australia, which can provide for the person settlement and protection from discrimination; and
(f) the capacity of the Australian community to provide for the permanent settlement of such persons in Australia;
is satisfied that there are compelling reasons for giving special consideration to granting to the person a permanent entry visa or a permanent entry permit.
101 The additional criteria in relation to a refugee visa are the following criteria:
(a) the applicant is a person subject to persecution;
(b) the applicant is living:
(i)outside the country of which the person is a citizen; or
(ii)if the person is not usually a resident of that country - outside the person's usual country of residence; and
(c) the Minister is satisfied that:
(i)permanent settlement in
Australia is the appropriate course for the applicant; and(ii)such settlement would not be contrary to the interests of Australia.
........ ........ ........ ........ ........ .......
103 The additional criteria in relation to a global special humanitarian programme visa are the following criteria:
(a) the applicant is subject to substantial discrimination amounting to gross violation of human rights;
(b) the applicant is living:
(i)outside the country of which the applicant is a citizen; or
(ii)if the person is not usually a resident of that country - outside his or her usual country of residence;
(c) the Minister is satisfied that:
(i)permanent settlement in Australia is the appropriate course for the applicant; and
(ii)such settlement would not be contrary to the interests of Australia."
The applicant Aminullah Saadat is Mrs. Amanyar's father. He sponsored her application. He was until 1989, as Mrs. Amanyar still is, a citizen of Afganistan. Having settled in this country with his wife and five other children, he became an Australian citizen in 1989.
The application was refused in September 1993. In a proceeding in this court the decision to refuse the application was set aside by consent of the respondent
Minister and the application was remitted to the respondent for reconsideration according to law. A delegate of the respondent, Dr. David Crawford, undertook that consideration of the application at Islamabad, where he interviewed Mrs. Amanyar and her husband and received a letter from her Australian lawyer which included submissions in support of her application. By a letter dated 27 September 1994, and addressed to Mrs. Amanyar at the refugee camp in Pakistan where she lived, Dr. Crawford notified his decision that the application be refused. The originating application in the present proceeding for an order of review in respect of that decision was filed in this court on 30 November 1994. That filing was not within the period prescribed by s.11 of the Administrative Decisions (Judicial Review) Act 1977. But until 1 September 1994 that section would have empowered this court to allow further time within which such an application could have been made. And until that date s.39B of the Judiciary Act 1903 would have enabled this court to hear and determine this application.
By amendment of the Migration Act 1958 the Migration Reform Act 1992 brought into force on 1 September 1994 provisions which, after subsequent re-numbering of the sections of the Migration Act 1958, are found in Part 8 of that Act, the presently relevant provisions of which are:
"PART 8 - REVIEW OF DECISIONS BY FEDERAL COURT
Division 1 - Interpretation
Interpretation
474. In this Part:
`judicially-reviewable decision' has the meaning given by section 475.
Division 2 - Review of decisions by Federal Court
Decisions reviewable by Federal Court
475. (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a) decisions of the Immigration Review Tribunal;
(b) decisions of the Refugee Review Tribunal;
(c) other decisions made under this Act, or the regulations, relating to visas.
........ ........ ........ ........ ........ .......
476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that 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 person who made the decision, whether or not the error appears on the record of the decision;(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b) an exercise of a personal discretionary power at the direction or behest of another person; and
(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d) taking an irrelevant consideration into account in the exercise of a power; or
(e) failing to take a relevant consideration into account in the exercise of a power; or
(f) an exercise of a discretionary power in bad faith; or
(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).
(4) 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.
........ ........ ........ ........ ........ .......
478.(1) An application under section 476 or 477 must:
(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.
(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).
........ ........ ........ ........ ........ .......
485. (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475 (2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
(2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.
(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.
486. The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution."
However, s.40 of the Migration Reform Act 1992 ("the Reform Act") provided:
"(1) In this section:
`amended Act class' means a class of visas that is provided for by, or by regulations under, the Principal Act as amended by this Act;
`Principal Act class' means a class of visas or permits that is provided for by regulations under the Principal Act;
`specified persons' includes:
(a)persons in a specified class; and
(b)persons in specified circumstances; and
(c)persons in a specified class in specified circumstances.
(2) The regulations may provide that a specified provision of the Principal Act repealed or amended by this Act is to continue to apply:
(a)to specified persons; or
(b)in specified circumstances; or
(c)in relation to visas in a specified amended Act class.
(3) The regulations may provide that a specified provision of the amended Act is not to apply:
(a)to specified persons; or
(b)in specified circumstances.
(4) Regulations under subsection (2) or (3) providing that a provision is to apply or not apply may provide that the provision is to apply or not apply:
(a)to a specified extent; or
(b)with specified modifications, not being the modification of a penalty; or
(c)as if a specified status or specified situation were another specified status or specified situation; or
(d)without limiting paragraph (c), as if a person who had a specified status, specified visa or specified permit had another specified status, specified visa or specified permit.
(5) The regulations may provide that, from 1 November 1993, visas or permits in a specified Principal Act class and held by specified persons immediately before that date are to continue in force as visas in a specified amended Act class.
(6) The regulations may provide that, from 1 November 1993, specified persons are to be taken to have been granted visas in a specified amended Act class.
(7) The regulations may provide that, from 1 November 1993, applications made after a specified date, or other specified applications, for visas or permits in a specified Principal Act class are to be taken to be applications for visas in a specified amended Act class.
(8) The regulations may provide that, despite the amendments of the Principal Act made by this Act:
(a)applications made before a specified date or other specified applications for visas in a specified Principal Act class may continue to be dealt with as if that Section had not been enacted; and
(b)visas or permits in a specified Principal Act class granted because of paragraph (a) are to be taken to be visas in a specified amended Act class.
(9) A regulation allowed by this Section ceases to have effect at the end of 90 sitting days of either House of the Parliament after the regulation commences."
In exercise of power so conferred Regulation 22 of the Migration Reform (Transitional Provisions) Regulations (S.R. No. 261 of 1994) was made. It included the following:
"22(1) Subject to this Part, Division 2 of Part 2 of the old Act, and Regulations made for the purposes of that Division, continue to apply to a primary application for a visa made on or after 19 December 1989 and before 1 September 1994.
........ ........ ........ ........ ........ .......
(7) Subdivision AB of Division 3 of Part 2 of the amended Act:
(a)does not apply to an application referred to in this regulation; and
(b)applies under section 342 of the amended Act to an application for review of a primary decision in respect of an application referred to in this regulation only if the review application is made on or after 1 September 1994."
The Migration Act 1958 as in force immediately before 1 September was the defined meaning of the expression "the old Act". Similar provisions, in Regulation 23, were made in respect of applications for entry permits made during that period and not finally determined before 1 September 1994. Subdivision AB of Division 3 of Part 2 of the amended Act provided a procedural code regulating the consideration of applications for visas. The Minister's speech on the motion for the second reading in the House of Representatives of the Bill subsequently enacted as the Reform Act (Hansard 4 November 1992, pp. 2620-2623) asserted that the "fair and certain process" ordained in that Subdivision AB would "replace the somewhat open-ended doctrines of natural justice and unreasonableness", and that the availability of that process justified the enactment of the provisions of Part 8 of the Migration Act 1958 which I have set out above. But the process ordained in that Subdivision AB would not be available to those applicants for a visa whose applications were of the description contained in Regulation 22(1). It was submitted by counsel for both parties that decisions about applications of that description did not fall within the meaning of the words of paragraph 475(1)(c), on the proper construction of the Migration Act 1958.
It was submitted that before 1 September 1994 Mrs. Amanyar had, not only a right to have her application for visas considered and determined by the respondent in accordance with the relevant substantive law applicable to
such an application and in conformity with the principles of administrative law the infringements of which are summarised in ss. 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977, but also a right to invoke the jurisdiction which before 1 September 1994 this court had from that Act to review and correct any departure by the respondent from observance of those principles. According to the submission, if the decisions relating to those visas were "judicially- reviewable decisions" within the meaning of that expression in Part 8 of the Migration Act 1958, the enactment of ss. 476, 485 and 486 of that Act had deprived Mrs. Amanyar of the protection which some of those principles of administrative law would have afforded her and the enactment s.278(2) had wholly deprived her of the right she would have had to invoke an exercise of this court's power to extend the time for filing an application under the Administrative Decisions (Judicial Review) Act 1977. The legislature could not, it was submitted, have intended to deny the enjoyment of those rights to persons who had not the benefit of that "fair and certain process" ordained in Subdivision AB, the enactment of which was said by the Minister to justify the enactment of ss. 475, 476, 478, 485 and 486.
In support of the submissions that justified a conclusion that Dr. Crawford's decisions were not "judicially - reviewable decisions" reliance was placed on the common law rule that an amending enactment, other than one of a procedural character, is prima facie to be construed as having
only a prospective operation, it being contended that the rights here in question were substantive and not merely procedural. And reliance was placed on the principle that a statutory provision will be interpreted to diminish the jurisdiction of a superior court only so far as the intention to diminish the jurisdiction appears clearly and unmistakably.
With those submissions in mind I turn to the construction of s.475(1)(c) of the Migration Act 1958. In my opinion the decisions by Mr. Crawford were not "made under this Act". The expression "this Act" in s.475(1)(c) signified, in September 1994 when the decisions were made, the Migration Act 1958 as it had been in force on and after 1 September 1994 after amendment by the Reform Act. The authority to make the decisions was conferred, not by the Migration Act 1958, but by s.40 of the Reform Act and the Migration Reform (Transitional Provisions) Regulations. Division 2 of Part 2 of "the old Act" had been repealed by the Reform Act. Provisions of that Division had until its repeal conferred on the Minister the power to grant or refuse applications for visas and had ordained the classifications of visa with which this proceeding is concerned. No such provisions were contained in the Migration Act 1958 as in force in September 1994 with respect to applications pending immediately before 1 September 1994. The authority to decide whether or not to grant such applications on and after 1 September 1994 derived from s.40 of the Reform Act and not at all from the Migration Act 1958 as in force on and after that date. Dr. Crawford's decisions were not "decisions made under" that latter Act, in my opinion.
I turn to consider whether Dr. Crawford's decisions were "decisions made under .... the regulations", within the meaning of those words in s.475(1)(c). It is provided by s.17 of the Acts Interpretation Act 1901 that "[i]n any Act, unless the contrary intention appears .... `Regulations' means Regulations under the Act". The Migration Reform (Transitional Provisions) Regulations are stated in the statutory rule (No. 261 of 1994) to be made "under the Migration Act 1958 and the Migration Reform Act 1992". At no time did any provision of the Reform Act expressly confer on the Governor-General a power to make any regulation. The Reform Act did by amendment of the section of the Migration Act 1958 which conferred on the Governor-General such powers bring about the result that certain powers were added and others were withdrawn. The formula "The regulations may provide", repeatedly employed in s.40 of the Reform Act, might be understood as an unusual mode of amendment of that section of the Migration Act 1958 (s.181 on 1 September 1994, re-numbered as s.504). But the verbal formula in which that latter section is expressed will not easily accommodate such amendments:
"(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:"
Then follow particular grants of power. Regulations of the kind contemplated by sub-sections 40(2) and 40(8) of the Reform Act will not prescribe matters which by the Migration Act 1958 as in force on and after 1 September 1994 are required or permitted to be prescribed, nor will such regulations prescribe matters which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act 1958 as in force on and after 1 September 1994. Such regulations will however prescribe matters which by s.40 of the Reform Act are permitted to be prescribed. The preferable construction of the formula "The Regulations may prescribe" in s.40 is to understand it as conferring on the Governor-General power to make regulations of the description which in each case follows the formula. If that be the correct construction of s.40, neither Regulation 22(1) nor Regulation 22(7)(a) of the Migration Reform (Transitional Provisions) Regulations is within the meaning of the words "the regulations" in s.475(1)(c) because they were not regulations under the Migration Act 1958, but regulations under the Reform Act, and Dr. Crawford's decisions are not "judicially - reviewable decisions".
In case I should fail to reach that conclusion, the parties advanced submissions based on s.8 of the Acts Interpretation Act 1901. I prefer to express no opinion about those submissions.
Mr. McLeish of counsel for the respondent did not oppose the extension of time, sought under s.11 of the Administrative Decisions (Judicial Review) Act 1977, for lodging of the application for an order of review. The extension will be granted.
The application for visas by Mrs. Amanyar on an approved form included answers to questions on the printed form. Some of the questions and the handwritten answers were in these terms:
"67. How did you depart your home country?
Because of the heavy fighting between different groups near our house, one of the group intered into our house and forced us to leave house, so in the middle of the night we left our house and walked till next morning to a save place. After couple of days, finally by the help of local residents we abled to escape to Pakistan.
Day Month Year
When did you depart your home country 01 / 08 / 1992
What do you think will happen to you if you have to go back to your home country?
In Afghanistan the war is going on among the different Islamic functions, as we are not belongs to any of them, so, there is no security for us. Our life will be in danger. We already have lost everythings including our house and there is no where fo us to live.
Do you or any member of your close or dependent family claim to have suffered persecution, discrimination or denial of basic human rights?
No Go to Question 70
Yes Please show reasons, tick appropriate box(es)
Race Religion Nationality Membership of a Social Group
Political Opinion Other (specify)
If you ticked this box, describe your political activities and affiliations
including membership of any legal or illegal organisations
The present regime in Afghanistan is a dictatorship regim. They oppose democracy and we believe on self determination and democratic election.
Describe in detail the nature, source and extent of your persecution, discrimination or denial of rights (if applicable)
Those groups who are in power in Afghanistan are fanatic Shiat Muslems or fanatic suni Muslims. They are against all well educated, moderate and intellectuals Muslems.
Were you ever arrested, detained, imprisoned, interrogated or mistreated (physically or mentally) in your home country?
No Go to Question 73 Yes Please give details
Did you ever have your property confiscated or damaged in your home country?
Yes.
When the conflict started between the fundamentalist Islamic groups (Shiat and Suni) near our house, they exchanged rockets and later we found big part of our house damaged and destried and all house hold were looted.
The form discloses that a person named Mujtaba assisted Mrs. Amanyar to make answer to the questions. In addition to the form a typed statement was attached, in these terms:
TO WHOM IT MAY CONCERN
I am writing to explain why we (my husband, four children and me) left Afghanistan and became refugees in Pakistan. I was born in Kabul, completed a Diploma in education and worked as a teacher in Kabul. My husband was born in Kabul, a graduate of the University of Kabul (agricultural science), who lost his professional employment when the communist took over. Then he worked for a private company. At the early stage of the communist rule, due to its oppression and threat, my parents, in order to save their life left Afghanistan.
As you are aware, since the communist take over, 14 years ago, the war has been continuing and despite the hardship we remained in Kabul hoping that the unpopular regime would collapse and peace, security would return. Unfortunately with the collapse of Najib's regime and the formation of the Islamic government, the situation did not improve but rather deteriorated. Tension based on religious, language differences and personal rivalry resulted in armed clashes between antagonistic faction that left hundreds deads and properties destroyed by rockets. The intensity and continuity of the war restricted people to their houses and the situation became so bad that some people had to bury their dead in their houses. Moreover there is no central authority, various parts of the city are controlled by various armed groups. The government has failed to restore law and order and as a result there have been widespread looting and kidnapping.
At one stage of the war, armed men entered in to our house and forced us to leave and used our house as a base for their fighting. We, in order to save our life and avoid our children being kidnapped left our country.
Now we are living in Pakistan as refugees. My parents, two brothers, three sisters, two uncles with their families are have been living in Melbourne for the past 6 years. I am the last member of the family, therefore I kindly ask the Australian government to let us join our families and resume a normal life. My children will have the opportunity to complete their education. Furthermore my parents and the rest of our families are all prepared and willing to help us in any way.
Yours sincerely
Nooria Amanyar"
The application failed because Dr. Crawford considered that Mrs. Amanyar had not been "subject to substantial discrimination" within the meaning of that phrase in Regulation 103 of the Migration Regulations and had not been "subject to persecution", within the meaning of that phrase in Regulation 101. He prepared and signed a document entitled "Decision Record" which was in evidence and which reads:
"1Primary Applicant's full name:
AMANYAR NOORIA
2Migration Class considered under:
202 GLOBAL SPECIAL HUMANITARIAN PROGRAM
3Requirements not met:
4Minimum points required for further processing:
Not Applicable
5Actual points scored:
Not Applicable
6Breakdown of score:
Not Applicable
7Appraisal of other factors not previously taken into account, including information advanced directly by or on behalf of the applicant, and changes in immigration policy:
This application has previously been decided. That decision was set aside by the Federal Court of Australia. I have interviewed the applicants and I have also taken account of information in the application file, including information supplied since the earlier decision was made.
I am conscious that there were administrative errors in handling of the application in 1993 and I am aware of and regret the strains that these incidents would have placed on the applicants and their relatives in Australia.
I am basing my decision in this application on information contained in file number 92049984, provisions of
Australian migration law, including the Migration Regulations[MR], and guidance provided to decision-makers in the Procedures Advice Manual.One criterion is that the applicant(s) be subject to substantial discrimination amounting to gross violation of human rights [reg.103(a), MR]. In this instance the applicants claim in a document accompanying the original application that a rocket destroyed their house and that they were forced to leave the house by armed men.
On the application form the applicants state, in response to the question about the extent of persecution, discrimination or denial of rights, that groups who are in power are `fanatic...Muslims' who are against moderate Muslims. There was no entry against the question asking if they had been imprisoned, detained, imprisoned, interrogated or mistreated.
According to notes taken at the time of the interview held in 1993 the family left Afghanistan because of fighting and because their house had been destroyed. The interviewer records no claims of discrimination.
Submissions on behalf of the applicant argue that the discrimination suffered by the applicant is enough to satisfy the MR.
At an interview held on 14 September 1994 the applicant stated that they had left Afghanistan because of fighting between warring factions and that they left their house after Mujihadeen had entered and used it.
I am not satisfied that there is information which establishes that the applicants have been subject to substantial discrimination amounting to gross violation of human rights. The problems cited by the applicants relate to indiscriminate incidents and, although clearly they were unfortunate, they do not constitute persecution or substantial discrimination.
The applicant's spouse also referred to being forced to leave a job in 1979. His explanation of this changed when asked for details and he ultimately stated that he left the position and that this was not directly related to his decision to refuse to become a member of the communist party.As he remained employed as a marketing director from 1979 until 1992 and was not required to join the military I do not believe that the loss of his job in 1979 satisfies reg. 101(1)(a).
The principal applicant also advised that apart from being asked to join the communist party she suffered no discrimination prior to the fall of the communist government. Neither nominated any other incidents of persecution/discrimination/harassment after the fall of the Najibullah government.
Having considered these matters I similarly find in terms of these events the applicants have not suffered persecution or substantial discrimination.
I recognise that the applicants have close family connections with Australia [see reg.100(1)(d)]. I also recognise that members of the family would dearly want this application to be approved. But these considerations are not in themselves enough, in terms of Australian migration law, to establish that resettlement is appropriate. Nor are claims of financial difficulty while living in Pakistan.
I find that a mandatory condition of grant of a permanent entry visa for which the applicants have applied has not been met. As a result, the application is refused."
Mr. Maher of counsel for the applicants submitted that Dr. Crawford had erred in law by failing to appreciate that the driving of a family away from the family home was discrimination. Mrs. Amanyar and her family were subject to that gross ill-treatment while other households in the neighbourhood were not subjected to that ill-treatment and thereby she and her family were subject to discrimination, it was submitted.
The context in which the word"discrimination" is used in Regulations 100(2) and 103 compels the conclusion that it has there the meaning "being discriminated against", and therefore being treated differently from others in a way which is adverse to the person who is subject to the treatment. Thus far Mrs. Amanyar's claim to have been subjected to discrimination is seen to be supported by the assertions of historical fact she has made. If an "armed group" seized her house and forced her and her husband and children to leave it, the members of the group treated her in a way which was certainly adverse to her. If, as seems likely, Dr. Crawford had been prepared to find that not every householder in Kabul, probably not every householder in the quarter of Kabul in which Mrs. Amanyar's house stood, was treated in that way, the elements I have stated of the conception of discrimination, in the sense in which that word is used in Regulation 103, would have been seen to have been present. But the question is whether there is a further element. In the Oxford English Dictionary (2nd ed.) examples of modern usage of "discriminate" and "discrimination" disclose, more clearly that the definitional statements, that further element : that the different and adverse treatment is accorded because of some characteristic, such as ethnic origin, or some conduct, such as membership of a religious or political group, of the person subjected to the treatment. The requirement that the discrimination should amount to a violation of human rights does not assist in determining whether in Regulation 103 that further element is part of the meaning of the word. The damaging of Mrs. Amanyar's house by unlawful warfare was no doubt a gross violation of her human rights, but it was not done, so far as appears, because of any characteristic or conduct of hers. But the general legislative context points to the conclusion that that further element is part of the meaning of the word. One of the objectives sought to be attained by grant of the visa is "protection from discrimination" : so much is to be inferred from the terms of Regulation 100(2)(e). The draftsman is looking to the future and the possibility of future discrimination, that is, to the possibility of future adverse, different treatment. Prediction of such a possibility is likely to be dependent on identifying a characteristic or conduct likely to result in treatment of that kind. More important in leading to the conclusion that that further element is part of the meaning of the word is the circumstance that common parlance in this country at this time has that element as part of the meaning of "discrimination", when the word is used in description of adverse, different treatment of human beings. Common parlance in this country has gone further in incorporating that element than one might appreciate on a reading of dictionaries, as I find.
On the evidence before me the material before Dr. Crawford justified findings that the damaging of Mrs. Amanyar's house, the entry of armed men into occupation of the house and the expulsion by those men of Mrs. Amanyar and her family were acts done, not because of any characteristic or conduct of Mrs. Amanyar or of any of her family, but because in the course of armed conflict it suited the combatants to do those acts in order to advance their military objectives.
The evidence tendered to this court as to what the evidentiary material was on which Dr. Crawford made his findings was conflicting. Dr. Crawford, who was in September 1994 the Principal Migration Officer at the Australian High Commission in Islamabad, deposed that he had made notes of the interviews he had with Mrs. Amanyar and her husband on 14 September 1994. The notes were in evidence before me. Both the notes and Dr. Crawford's affidavit verifying their contents are consistent with, and justify, the findings which I have stated to be justified. Obaidullah Saadat, a brother of Mrs. Amanyar, deposed to his receipt in September 1994 of a letter from her husband which narrated questions asked by Dr. Crawford of Mr. and Mrs. Amanyar and the answers given at the interview. According to the English translation of the letter, both of which are annexed to Mr. Obaidullah Saadat's affidavit, it was made quite clear to Dr. Crawford by Mrs. Amanyar that her house was occupied by Shiite Muslims and she and her family were expelled from the house because they were Sunni Muslims and because their language was Pushton. According to Dr. Crawford's affidavit each of Mr. and Mrs. Amanyar was interviewed through an interpreter, while the other was not present, but their four children, the eldest of whom was then 15 years old, were present. Paragraphs 17 and 18 of Dr. Crawford's affidavit read:
"17.Moreover, there are significant inconsistencies between my notes and those in the annexure. First, the notes in the annexure assert that Mrs Amanyar claimed that her family had left their house because they were targeted and threatened by the militia on the basis of being Sunni and Muslims or Pushtons, rather than simply being the victims of indiscriminate warring factions. The notes also say that Mrs. Amanyar stated that the militia were beating and killing Sunni Muslims in the area where the family lived, and that the militia had entered their house and threatened to kill them. I would certainly have recorded these claims if they had been made, especially since no such claim had previously been made in the course of the application. I would also have drawn this fact to Mrs Amanyar's attention and sought an explanation. I recall no such claim, and made no note of any. I believe that none was made.
18.Mr Amanyar at one stage in the interview suggested that the house might have been taken because the militia may have known that he was sunni. He claimed further that he might have been killed. I advised him that he had earlier stated only that the family had been told they should leave their house for their own safety. He then said that it was difficult to recall the incident as it had happened 2 years ago. He did not state that the Shia militia targeted Sunni Muslims or Pushtons in general."
Mr. and Mrs. Amanyar and their children were in Pakistan when this proceeding was heard. At that time Dr. Crawford was, it may be inferred, in South Africa, where he swore his affidavit a month before the hearing while serving as the Principal Migration Officer at the Australian High Commission in Pretoria. No application was made to me that viva voce evidence by any of those persons be adduced. The relevant parts of Dr. Crawford's notes of the interviews read:
"Mrs Amanyar:
Departure: Left A [Afghanistan] 5/8/92 and came to Pakistan. Left because when Mujihadeen came there was fighting between the factions. Their house was hit by a rocket. Later Muj. took over their house to use it. Claims her mother-in-law died in Afgh - found this out when she arrived in Pakistan. Her mother-in-law had decided to stay in Kabul - mother-in-law stayed in the same house.
No other discrimination/harassment. Claims that she had been asked the PDPA but she refused. No other coercion. Repeated no other discrimination/harassment."
........ ........ ........ ........ ........ .......
"Mr Amanyar
Departure: Left Afgh 1/8/92 and got to Pakistan 5/8/92. Claims left because of fighting between the groups - thought it was dangerous - his home taken by Shiats who wanted to fight from home - dangerous - they were told by Muj. to leave to go somewhere safe - his mother stayed - when they got to Pak they heard that mother had died.
Claims he faced no other problems in A except he did not have a good job. He refused to join the PDPA. Now states he left a job because of PDPA - advised his wife stated no coercion - he now states he was not forced to leave job. Left this job in 1979.
Claims that when house taken it was to use as a base. Now claims maybe they knew a/n was Sunni and therefore taken house for this reason. Now claims he could have been killed. I advised of earlier statement that he had been told to leave - now states that it is hard to remember -2 years ago."
I have treated Dr. Crawford's notes as admissible because his affidavit verifies them. They would, I consider, have been admissible under ss. 64, 170 and 171 of the Evidence Act 1975. The letter from Mr. Amanyar I treated as admissible under ss. 63, 170 and 171 of that Act.
I am not persuaded that the evidentiary material before Dr. Crawford included an assertion by Mrs. Amanyar or Mr. Amanyar contradictory of the findings which I have stated in paragraph 17 to have been justified by that material. And I am satisfied that those findings were made by Dr. Crawford. His reference in the statement of his reasons for the decisions to "indiscriminate incidents", considered in the context which those reasons and the evidentiary material before him supplies, is clearly, in my opinion, a statement of a conclusion that what had happened - the damaging of the house, the entry of the armed men into the house and the expulsion of Mrs. Amanyar and her family from the house - did not amount to "discrimination" because those acts were not done because of any characteristic or conduct of any member of that family.
It was submitted for the applicants that Mrs. Amanyar was subject to discrimination in that, as one of a class of persons defined by their unwillingness to take sides - or to take part - in the violent conflict between the armed factions in Kabul, she suffered, at the hands of members of
one (or more : the source of the rocket which damaged the house was not identified) of those factions, adverse treatment. But the evidentiary material before Dr. Crawford did not show that the adverse treatment was inflicted because Mrs. Amanyar and her family were non-combatants or because they were not members of a faction.
Dr. Crawford wrongly thought that Mrs. Amanyar's application was only for a global special humanitarian programme visa, but he did consider whether the additional criteria in relation to a refugee visa were satisfied, as his letter to Mrs. Amanyar informing her of his decision, read with the statement of his reasons for his decision, indicates. He concluded that she had not been "a person subject to persecution". The ordinary meaning of the word "persecution" limits its application to adverse treatment motivated - or at least attended - by enmity or malignancy to the subject of the treatment on the part of those who inflict the adverse treatment. They must act out of ill-will towards the subject of the treatment or, at least, with the desire to inflict on the subject injury or suffering. (See Oxford English Dictionary (2nd ed.)). On the evidentiary material before Dr. Crawford the conclusion was open that none of those who damaged the house or seized possession of the house or expelled Mrs. Amanyar and her family from it had been shown to have been animated by ill-will towards any member of the family or by a desire to inflict on any of them an injury or suffering. The material before Dr. Crawford was consistent with the hypothesis that all of those who did those acts were motivated solely by the desire to attain their military objectives. And that in my opinion is the conclusion Dr. Crawford was expressing in the statement of his reasons for decision.
It might be thought that the meaning of the word "persecution" in Regulation 101(a) ought to be ascertained by reference to judicial exposition of the meaning of the word "persecuted" in the definition of "refugee" in Article 1 of the Convention relating to the Status of Refugees. But adoption of the meaning assigned to "persecuted" in that definition would not lead to a different conclusion : see Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 C.L.R. 379 at 385, 389-390, 399-400, 415-416, 429-430; Damouni v. Minister for Immigration, Local Government and Ethnic Affairs 1989) 97 A.L.R. 97 at 101-102.
It was a ground of the application for an order of review that procedural fairness had not been accorded Mrs. Amanyar. It was submitted that he had failed to make clear to Mrs. Amanyar his conception of the meaning of discrimination, so as to enable her to make to him any assertions of historical fact concerning her treatment which might fall within that conception. But the evidence before me does not persuade me that Dr. Crawford did fail to make clear that conception. That evidence does not purport to give any account of whatever Dr. Crawford may have said during the interview which was not a question. And what his questions were can only be inferred from his notes.
The particulars of the allegation that procedural fairness was not accorded Mrs. Amanyar are given in the originating application. These were derived from some of the observations in the statement of reasons for decision and from omission of reference to some factual assertions made to him by Mrs. Amanyar, which were said to indicate rejection by Dr. Crawford of a number of factual assertions by her, and thus an indication of his failure to indicate at the interview that he was not minded to accept those assertions. But the reasons are directed to the two questions : had she been subject to discrimination and had she been subject to persecution. Much material which threw no light on either question was ignored in the statement of reasons and those observations in the statement of reasons which were said to indicate rejection of factual assertions did not in my opinion provide any such an indication.
The other grounds of the application, specified in the originating application for an order of review, are in my opinion without substance. The application must be refused.
I certify that this and the 30 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 22 December, 1995
No. VG425 of 1994
Counsel for the Applicants : Mr. Laurence Maher
Solicitors for the Applicants : Baker & Armstrong
Counsel for the Respondent : Mr. S.G.E. McLeish
Solicitors for the Respondent : Australian Government Solicitor
Dates of Hearing : 23 and 24 October, 1995
Date of Judgment : 22 December, 1995
2
0
0