Ebrahimi, A.Q v The Minister for Immigration & Ethnic Affairs

[1988] FCA 234

CATCHWORDS

J U D I C m REVIEU - Administrative law - sponsorship application - aggrieved peraon - taking into account irrelennt considerations - failure to conaider relevant considerations - unreasonable exercise of

power - powr exercised in accordance with a rule or policy without

regard to the marita of the case - refugees - special humanitarian

program - family migration.

Adminlatrativa Daclsionr (Judicial ELsvieu) Act 1988

Migration Act 1966

AEIJUI,	EBEUEIIII v TEE MINISTER IDR IIUII(auTI0N L ETHNIC AE'FAIRS
G 486 of 1986
PIACE: Sydney

CORM: EIllWLDJ

E: 23 m y 1988

IN TEE m	COURT OF AUSTIULIA	1
1
NEW =E	SSbtES DISTRICT REGISTRY 1	No G 186 of 1986

1

GENERlLL D M S I O H 1

ZLBU[JL wrmus -In1

Applicant

MINISTER m R IBMIGRATION

C ETBNIC AFFAIRS

Respondent

C O W :	Einfeld J.
-	DATE:	23 m y 1988

PIACE: Sydney

1. That the matters be referred to the respondent Kinister for

further conaideration of	the ordera and decisions, in accordance
vith reasons for judgment herein.

2.       That the respondent Hlnister pay the coats of the applicant.

ISOTE:
-	Settlemmnt and entry of orders are dealt uith in accordance with
Ordmr 36 of the Federal Court  Rule..

IN TEE FEDRtAL COURT OF AUSTRALIA

HEW SOUTH SlltES DISTRICT REGISTRY ) No G 486 of 1 9 8 6

)

G m D M S I O H

AElLXIL QUDDUS EBRAEIMI

Applicant

MINISTER l33R IMMIGRATION

L ETHNIC AFE'AIRS

Respondent

C m : Einfeld J.

DATE: 23 Hay l988

-

PIACE: Sydney

This 18 WlU8mlytter. Abdul Qllddus Ebrahial (the applicant) arrived

in Austali8 on 16 Hovmmber 1980 vith his wife and three sons. He became

a naturalized Australiaa citizen on 18 )lay 1984. Also in Australia as

either citizamm o r permanent residents are the applicant's two younger

brothers who are n w aged approxlmately 22 and 24 years. The applicant

is almost 43 years of age. EIS wife is said to	be about 20 years old and
his children	are said to be approxlmately 18, 11 and 5 years old.
Whether the first child is also the child	of his wife (who would on this
evidence h a w been 10 years old	at the tlme) is not stated. Be has three

cousins here - tuo are married and one la single. Apart from the

youngest child of the applicant, who was born in Australia, all	of them
migrated from Afghanimtan.

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On 21 September 1985 the applicant completed a statutory declaration

sponaoring for entry into Australia for residence his sister Nafisa

Saedi now living in Pakiatan, her huaband Mohammed Nazif Saedi and their two children now aged 6 and 4 years respectively. Since the application

Mrs Saedi has given birth to a third child who is now almost two years

old. The Sadis fled Afghaniatan and now live in Islamabad.

A aponaorahip application occurs when an Australian citizen or permanent

resident 18 prepared to provide help and support to someone, usually	a
relative, aettling in Auatralla. There are	two forms of sponsorship:

(a) Standard Sponaorahip - when a sponsor undertakes to provide

support and aaaistance during	the early days after migration;
and

(b) Full Spon8orahip - d o n a aponaor undertakes to provide full support and aaslatance eapeclally accomodation and financial anpport for a period of at least 12 months.

In Uarch 1986 Victor Eric Baakir, a senior inmigration officer with the

Department of Imlgration and Ethnic Affair. in Canberra (the

departaont) trawlled to Islamabad at the request of the then Minister

for I.rigration and Ethnic Affairs (the respondent) to fulfil the

difficult taak of Invostlpating approximntely 300 applications for

migration to An8tralia. Ee intervieved Mr and Mrs Saedi at the

AU8trali~~l -8.y In Islamabad on l1 March 1986 through and with the

assistance of an Afghan interpreter. At thia time the Saedi family may

have been qrulifled for migration under	one of three categories	of
migration. These -re:
(a)	refugees;	as
(b)	on special  humanitarian grounds;
(C)	under the family migratlon program.

In the events vhich occurred, Ilr Baskir, having considered the

eligibility of the Saedl famlly under each of these headings, concluded

that they dld not qualify under any of them. As the delegate of the

respondent, he thereupon made	a decision on 11 March 1986 to that effect
vhich he comunicated to Ur Saedi by letter dated 13 April	1986.

Thereafter, on 15 LLy 1986 Ur Philip Ruddock MP, the Federal member for

Druuias, in uhose constituency the applicant and his family lived, wrote

to the thmn Winistor seeking a revieu and reconsideration of Ur Baskir’s

deciaion. It appoars that additional repreaentations uere made to the

same effect by Senator Graham Rlchardson, a Heu South Wales senator, now a Govmnmmt Unistar. The respondant replled to Ilr Rpddock on 14 July

1986 atating that the applications involving the Saedi family had been

re-examined in the light of Mr Ruddock’s and Senator Rlchardson’s

repreaentations and that he had confirmed Ilr Baskir’s decisions.

Interestingly tho letter says only that the application under the

refugee and spacial humanitarian categories	had been refused but	it is
clear that it	uas refused under the family migration program as	well. Mr

Ruddock tried again rith the respondent by letter of	18 July 1986 who
replied on 12 September adhering to his previous decisiona.	I shall
return to these lettmrs later.

The applicant seeks a revlou of the decisions of Ur Baskir on l1 llarch

and of the Unister on 14 July and 12 September 1986 under the

I

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Mministratiw Decisiona (Judicial Review) Act 1977 (the Judicial Review

Act). Although there waa aopo discuasion	at	the hearing as to whether
there really were two	or even three decisions, or perhaps only one	which

waa subsequently confirmed, it does not seem to	me necessary to decide
that matter in thia case. In the way I see the facts, nothing at	all
whether there vas one or more than one decision. I shall be dealing in aoma detail with the specific terms uaed by	W Baakir and his
turns	on
then Miniater, and although there are differences	with the way in which

the rejection of the application by the Saedi family €or entry to

Australia is explained by both, I do not think it neceasary for the purposo of the resolution of this case to decide or determine how many decision. have been made. It may be taken that there vas at least one

decision refusing entry to the Saedi family under all and any of the

relevant categories.	It la clear that the respondent has and takes
responsibility for the dociaion	or dmcisiona in this matter and that the

deciaions are rud. under the Nlgration Act 1966 and are thua reviewable

under the Judicial Review Act.

Eowwr, by m y of a preliminary argument, the respondent objected to

the juriadlction of this Court to hear this application for judicial

review, on the grounds that: 

1.       it concerns a dociaion or decision. on aponsorship and that such

a decision is not one to which the Judicial Review Act applies;

and

2.       that the applicant ia not a peraon aggrieved by the decision.

In my vieu thia is not a docision on sponaorahip at all but a decision

to deny ontry to Australia of non-citizens seeking entry on various

I

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grounds	(see Mayer v The Minister for Inrmigration and Ethnic Affairs
(1984) 55 A&R 587 at 591).	Indeed in the tuo letters of the respondent

to	nt	Ruddock of 14 July and 12 September 1986 to which reference has
already been made, the matter	in issue is described as	'an application

by Nafisa Saedi and her family for entry to Australia'	or similar words.
Baskir in his affidavit of	30 January 1987 filed in these proceedings

deacribea the Saedi family's application as one of

"amroxiumtely 300 applications fo r migration to Australia".

It la also obvioua that he applied criteria, considerations and other approachea applicable to applicationa for entry to Australia. That is

what thia application is about. It l a an application to review a

deCi8iO11 or dmcialona refuaing entry. Nothing n a investigated or

dotamnod adv8r.a to the 8ponsor or tbm application for sponaorrhip as

such	-
The question of Ilr Ebrabiri's status as 'an	aggrieved person' raises

interesting questions. Incorporated v Thm CoPonwalth of Australia (1980) 146 CLR In Australian Conservation Foundation

493, the

Comonwalth

and a o m of ita Kiniaters were sued for declarations,

inpmctlons and other orders to challenge the validity of decisions

relating to a propoaal by a company to establiah and operate a resort

and tourist area in Queanalancl. The defendanta applied for the statement

of claim to ground that the Foundation had no standing to bring such action. Gibbs	be 8tn1Ck out and for the action to be diamissed on the
CJ at 530 aaid of ita intereat	or right to sue:

'l. .an intersat, for p s a n t gurpoaea, doea not man a mere intellectual or (Wtionnl concern. A person is not

interested within the maning of the rule, unless he is

likely to gain smm advantage, other than the satisfaction
of fighting a wrong, upholding a principle or wlnning a
contest, if his action succeds, or to suffer s m e

disadvantage, other than a sense of grievance or a debt for

costs, if his action fails. A belief, however strongly felt,

that the l a w generally, or a particular l a w , should be

observed, or that conduct of a particular kind should be

prevented,	does not suffice to give its possessor locus
Stardi	. "

In Onus v Alcoa of Auatralia (1982) 149	CLR 27 at 12. Stephen J said of
"aggrievedm:

"... it seam rather to inwlvu in each case	a curial
assesmt of the importance of the concern	which a
plaintiff has with the	particular subject mtter and of the

closeness of that plalntiff's relationship to that subject

matter.

In Ogle L Another v Strickl8nd C Others	(1987) 71 ALR 41, a deciaion of
a	Full Cour t of this court, Fisher J Interpreted the phrase "persons
aggrievmd'	as inolrrding people d t h a "apecial Interest". Eia Eonour

interpreted Stephen J's mcurIal asaeaament" aa requiring value judgments

to be made, mmpeci8lly asseasing mattera of weight and proximity.

Lockhart J considering the expression "person aggrieved'	said that the
court. construed these expressions liberally.	Be said at 45:

The wrda 'pdrson aggrieved' are of wide import and

should not ke aubjected to a restrictive interpretation. Tlmy &I not inclub, of course, a mre busybody who 1s interfering in thlngu which do not concern him; but they do inclwb a pmon who has a gunulm grievance because an order has been mde whlch prejudicially affects his

interests. "

I agree with reapect with these expreaaiona and definitions. They	leave
no doubt that the applicant la a person aggrieved within the meaning	of

section	5	(1) of the Judicial Review Act for the following principal
reason. :

(a)	Re is the brother of lIrs Saedi, a relationship which formulates the baais upon vhich the Saedl family's application came to be considered in the firat instance.
(b)	The applicant has offered a full aponsorship of the Saedi
family, and has been asaiating them financially while they have been in Pakistan.
(C)	The Saedl family haa been denied entry to Auatralia.
(d)	The application la largely baaed upon the desire to have his
aiater and mmaberm of her family vlth hlm and his family in

Auortralia.

(e) Eo is an Australian citizen and a member of the Australian

public rho haa

him. lodged a clam vhich has been decided against

(f 1 The family la close, and emotionally and spiritually

interdependent.

When 1Ir B8orklr n a considering the Saedi family's application to enter

Australia, he had regard to. conaidered, and obviously applied certain

inatructions, criteria and other conaiderationa made available	by. and
the policy of, tho deparmnt. Theae included the contenta of what	is
known aa the "Ulgrant Entry Bandbook", the relevant parts	of which for
this caae may be aummriaed as folloua:

1. LITERACY ( i . e . ability to read in the native language)

Thia does not apply to certain types	of family migrants but in general
"illiterate people in other categories are not	to be approved". Officers

of an appropriate level including Hr Baskir have the discretion to waive

this requirement 8nd the handbook says in this regard:

"In conaidering whether to waiv8 the requirement such officera should balance any capssionate factors against the effect of illiteracy on the applicant's employability

and ssttleumnt prospects. Net benefit to the carmPrnity is

to be the priwry Consideration. "

In stating that applicants for migration mn8t be of good character, the

departmental publications indicate that this will ordinarily be

determined by a con8ideration of three principlea:

(a)	Whether the applicant is a risk to Australia's security, i.e.
likmly to engage in "espionage, sabotage, subveraion or

terrorism"

(b)	Whether the applicant h8S broken the law
(C)	Whether the applicant haa a history of criminal activity or

other anti-social behaviour

Other mattera that should be investigated are whether the applicant has

been involved in organised crime, druga, political extremism, extortion,

immigration malpractice or prostitution. The relevant publication goes

on :

"This is not an wdmustim list. If doubts cannot be

maolved, Australia's intereats cam first."

In the course of his intervieu uith Mr and Mrs Saedi, Mr Baskir aacertalned that the faally had left Afghanistan in June 1985. Mr Saedi

told him that he believed he would be arrested like his colleagues, that

he had assisted thm Nujahideen, that he had been pressured by the Afghan

authorities to conform in his vieus,	and had been employed	in a
government buildlng project.	In thia uork he was able to	use a

g o w m w n t jmmp uhich h . u s givmn - no doubt for rork purposes - to

diatributa pamphlets and anall	maponr covertly.
M Sad1 had cwlmted rllitary service in	1980 and had committed no
offences. Ee had learned from his in-laus who had followed	him to
Pakistan that his home had been searched by the authorities after	he and

hia	family had left and that they uere being looked	for. Apparently
about	tuo months before the Saedi family left Afghanistan, Mr	Saedl's

brother uho had close connection uith	the Ilujahideen had been arrested.
On 26 June another colleague in the Ilujahideen had	alao been arrested.

Ilr Saedi's doparture had taken place uhen he was told that he waa

implicated in thm aama aort of activities as hia brother and the other
m m and that he uas ranted by the authorities. It was for that reason
that he had n d m arrangemnta to leave.

In his consideration of the Saedi family as possible refugees in these

circumstances, Ilr Baakir had regard to the definition provided by the

1951 Geneva Convention Relating to	the Status of Refugees (the Geneva
Convention), uhich Australia has ratified and defines a refugee	as a
person who,

"owing to a -11-fourdui	fear of being persecuted for
reasons of race, religion, nationality,	W r s h i p of a

particular social pup or political opinion, is outside the

country of his nationality, and is unable or, owing to such
fear, is unwilling to avail hlmelf of the protection of
that country; or who, not having a nationality and being
outside the country of his former habitual residence, is

unable or,	owing to such fea, is unwilling to return to
it ."

The Sadi family can apparently ramain indefinitely in Pakistan and has

been acceptad as refugees by the United Nations Elgh Comtissioner for Refugees (UISBCII) but live in extremely poor and indigent circumstances.

I8rs Sadl has no education at all and is illiterate. It is not even

clear uhether she can really sign her own name. Both Mr and Mrs Saedi

are h a l m s and Ilrs S a d i mars the traditional dress of a Muslim woman.

Because OS these matter., Blr Baskir formed the belief that she could

find it 'most	difficult to adapt in Australia*.
Amongst other things the Saedi family were also assessed under	what is

known as the 'points test' for migrants. This is a more or less

objective test uaed by the department to assess the eligibilty of

potential migrants. The test is effectively conducted in five broad

areas - employability, skills, education, age, and relationship to

Australian citizans or residents (and whether the applicant is being

sponsored by such a person). Because of Urs Saedi'a complete lack of

education, Ilr Baskir very fairly treated M Saedi as the prlnclpal

applicant, for It	is primarily the principal applicant's points score
that determines hov the family rates under	the system. The pass score,

as the relevant documentation deacribes it, is 70 points and Mr Saedi

scored 55 points. I return to aspects of this score later.

M Baskir8a evidence la that he considered the Saedi family separately under the three headings earlier referred to as folllovs:

1. Refugees

The concluaions formed here vere:

(a) Xr Saedl did not demonatrate to M Basklr a fear of

'pormecutioa' dthin tho the Geneva Convention, but rather a

fear of 'the repercussions of carrying wapons".

(b) Ilr S a d l did not aatiafy the goad character requirements because

he 'secretly carried veapona'.

(C)	The Sa& famlly could 'remain indefintely in Pakistan where
Afghan8 are afforded effective protection by the authorities and
are not &emd by the tMliCR to be in need of third country
resettlamant".
(d)	"m8 Sadi'8 illiteracy, complete lack of education and
traditiOM1 background' led Baakir to believe that "she did
not h a w peraonal qualities likely to facilitate successful
resettlemnt in Auatralia'. Be aaid that it vas departmental
policy that "the lack of successful resettlement prospects in one member of the famlly is relevant to the assessment of the
whole famlly" .
2.	Special Iiumanitarian Program

The Saedi famlly did not qualify under this heading because:

Hr Saedi did not satisfy the good character requirements because

he had "8ecretly carried ueapons";

their fear of returning to Afghanlstan was not grounded In

sub8tantial discrimination or gross violations of human rights;

they did not damonstrata that	they had little prospect	of
settleaent in Pakl8tan;

Yr. h.di did not "pO8SeS8 perSOnal qualities likely to

facilitate 8uccessful resettlement	in Australia" for the reasons
praviously given. Ur Ba8kir said that M s	Saedl's traditional
&e88
dacl8ion.

uas taken into account but was "not central to" his

Famlly IUgration

M Baskir decided that the Saedi family did not qualify here because of:

(a)	Ur Saodi's	failure to meat the "good character' requirement;
(b)	Ilr Saedi'a	inability to reach the 70 points applicable to the

principal applicant under the points test; and

(C) Ilra Saedi'a peraonal qualities earlier referred to.

In relation to the points teat, it is noteworthy that Mr Saedi received

20 pointa (out of a poaaible 25) for education on the grounds that he had qualified as an engineer, although he received only five points out of a possible 25 points for employability and 10 points out of a posaible 20 points for akilla. (Ee alao received 15 points for age, the higheat that can be received h C 8 U . e he la aged between 20 and 34 years

at the time of asseaamant). The combination of there point scores	is
apparently justified by	Ilr Baskir on the grounds that although Mr Saedi
obviously h8s the technic81 C8p8CitieS of an engineer, he doe.	not speak

lbgliah 8nd his engineering qmlificationa in Ilr Baakir's opinion would

be unlikely to b. fully recognised in Auatralia. Thus	hla acorea under
akilla and aploy8bility w r e accordingly reduced.

There la one other obaemtion that ahould be made in relation to the pointa test. According to its explanation by the department, sponsored relatives g8.in 10 8dditional pointa if they are brothera or sisters of

the aponsor and f i w additional points if they are nephewa or niecea.

They receiva an additional 5 points if the sponsor is	an Australian
citizen. Ewc8ose	Ilr Saedi vas taken as the principal applicant, for the
reasons earlier given,	the additional concessionary pointa only amounted
to five, prea-ly	on the grounds that the applicant aa the sponsor was

an Australian citizen. Thia,	if I may aay ao, appears to	be an
unreasonable provlalon.	Ilra S a d l wuld be entitled to	10 pointa aa the

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sister of the sponsor,and the three children born at the time of the

application uould each be entitled to 5 p ints as the nephews and niece

of the applicant. Yet, as Ilr Saedi for good reason vas taken as the principal applicant, it is only his entitlement to concessional points

that 1s considered. In the ca8e of a family group seeking to migrate, it

is surely quite unreasonable to limit the allowable points concessions

to one &er of the family, under thl8 aspect of qualification to

migrate, uhile including - aa I will later demonstrate vas done in this

case - the negative features of all members	on all other aspects.
Eowever, as it was the method in operation at	the relevant time, there

is no legal defect in Ilr Baskir's	or the respondent's	decisions in this
case on that ground.
In the respondent's	letter to Hr Ruddock of	1 4 July 1986, Ilr Baskir's

deterri~tiOlh8 .Id a8808mIlt8 wre .-What fle8hed Out. In relation to

the use of a gowrmwnt vehicle to distribute pamphlets and small

ueapons on behalf of the Mujahideen, the then Rflnister said:

"I mierstard the reasons for such activity but it distwbs

m bemlw in my view it constitutes action wfiich is

cantrary to the principles of our humnltarian progmns.

It -8	not deniod by counsel for the reapondent in the course of the
hearing of this rtter that the Australian Government has	at all
relevant t-8	8hared at least the political goal8 of the Mujahideen
towards the current Afghan reglme,	in that both m r e seeking the removal

from office of the Soviet-hcked govsrnment or at least its Soviet

backers. When the re8pondent speaks of Australia's "humanitarian"

programs, they wuld surely require 8- consideration to have been

given to the fact that these small weapons might have been distributed

to citizena who were innocently under threat from the activities	of the
Afghan armed forces	or their Soviet alliea. Some great heroes have

carried *small we8pons* on behalf of groupa and ideologies with whom

Australia haa been in cloae alliance in	the past. I can well imagine,
and the reapondent did not deny it in thia case, that Australia	has
itself when fighting enemiea engaged	or used local citizens to carry

amall weapons on ita behalf for the perceived consnon good of both

Auatralia and the recruited carrier.

In my yiew, it la not poaaible to categorise a person as lacking good

character and acting contrary to the principles of Australian

hrrpanitarianin, merely on the aacertainment of information that he

carried and covertly distributed some amall weapons in such

circummtances. lo infonvtion h8s k e n obtained aa to where they were

carried, how they wre carried, how many were carried, what precise

weapons were carried, to whom they wre in fact distributed, at whose

request they uerm distributed, in uh8t conditiona of personal danger to Ur Saedl and his famlly they wre carried and distributed, whether they were distributed for the protection of Hr Saedi and hia mediate or

vider famlly or frienda, and many other aimilar matters. There is no

evidence that the distribution of these weapona was contrary to the law

of Afghaniatan at the time, nor even whether It was contrary to the

interests of Australia at the t-,	having regard to the political and
military situation that exlated	in Afghanistan when these weapons were
apparently king carried. I can understand that	the work pressures on Kr

Baakir at the t m no doubt limited hi. capacity to investigate all

these natters thoroughly in	e m r y cam, but the Judicial Review Act
makes little allowance for auch	ircmatancea. If the case of the person

concerned is not fully and fairly eramined, the Act normally prescribes

only one result.

Aa to lira Saedi’s	failure to obtain a favourable assessment from	Mr
Baskir aa to prospects of settlement	in	Auatralia. The then Minister
said this:

“The purpose of the settlmmnt assesmmt . . . is to gauge the capacity of the principal amlicant and family h r s

to settle auccoasfully. An adult of working age who is not

literate . . . I, and haa h d no fonrel education, such as Mrs Saedi

ia generally precluded from entry on aettlement grounds. This assessment
can f low on to the family as a whole because, in order to qualify for
entry. it 18 erp.ct.d th8t a11 family mmber8 will satisfy standard

imlgr8tion requlr.awnt8.

The Nlnister continued:

“I Q &viaad that them mm numrous instances of Afghan

fmlloa, in I a l w b a d at the aanm t i w as the Saedis,

in which the f-e rm~&rs had onplated a formal education

incluilng to tertiary level.”

In my opinion this 18 a completely unacceptable ground for the decision

to refn8e the S a d family entry to Australia. On the one hand, as I

h a w pointed out, the point8 test is determined on the basis of the

principal 8pplicant	- and in this case the failure to take Hra	Saedi
into accouut	depriwd tho 8aod.l family of additional points for	the

* .

family clomene88 between her and the applicant; on the other hand,	the
then Winimter is in effect saying here that even If	Wr Saedi had
attained the 70 points required, the Illiteracy	of Mrs Saedi would have

been enough to reject them as rigrants - a sessed the more adversely by reference to some scuttlebutt or superficial observations in a heavily overpopulated city swollen by large numbers of refugees.

How for example can "all famlly members" satisfy the requirement of

literacy when three of the members	of the family were young children who
had spent	all or much of their lives living in fear of a ruthless

governwnt,	on the run from that government, and later In	appallingly
inadequate conditions	in a foreign country? What precisely	vas the

relevance of the 8ighting of other Afghan females	in Islalambad who had
completed tertiary education, I	do not know. Perhap8 they were members
of the Afghan authorltle8 pretending	f o m r Ugh.n ruling f.rily. Perhap8 they were spies €or the

to be educated to tertiary level but in

fact trying to cha8e and Identify refugees from Afghanistan. Perhaps

they m r e uealthy Afghan8 uho had been in Pakistan for years and had gained their tertiary educatlon there. Perhaps they had married

representative8 of	the UMECR who had been in Pakistan for some time and
through those liai8on8 had	been able to gain an education in some

western country. With every respect to the then Wnister and to the

extent	to uhich thi8 mntter played a role at	all in thi8 decision, I
consider that	the actrul or pre8umed educational qualifications	of other

Afghan mmen In Islamabad are unproved and completely irrelevant.

In his letter In e l a t e reply to the Wnlster dated 18 July 1986, Mr

Ruddock under8tand.bly wrote:

. .

"In the reccord paragraph you state that active support for

the Majahldeen disturbs you and it is contrary to the

principles of our huranitarian programs.

Could you pleare as a matter of ugency elaborate?"

To thia aeemlngly reasonable reque8t, the then Kinister replied	on 12
September 1986 thus:

"I should make the pint that this application was

wuccorsful because fmily makers were unable to

damnstrate that they had a well formded reason to fear, or
were the victime of, persecution or substantial

discrimination. M e n m r e , Nafisa Sad received an

unfavourable settlarent assesssrant for reasons previously

outlined.

The concern aich I axpressed in my earlier letter was that,

irre~npcti~ of the rmritr of his cause, the fact that

m i ~ a ' a husband carried for the Muujahideen does not

uutrslla. This is ~ U S O the r e f w and qecial	constitute m for huranitarian resettlanent in
humnitarian pzqran is in place to arrirt the victm of
thew situations rather than the pnrticipants."

Matevmr e180 this rather confu8d and confuaing asaessment meanr,	it
seama to m to be a clear cut assertion that	Ilr Saedi war a participant

in cauaing people to becom refugeea or auffer inhumanity. There is no

evidence before	m to support any auch concluaion or finding. In my
opinion, the decision or decisions	concerning the Saedi family's
qualification# a8	refugeea call for judicial review for the following
reasona:

1. It 18 irrelevant to the queation whether a person qualifies for

definition a8 a refugee under the Geneva Convention as to

rhother he carrid ueapons, aecretly or at all. In other words,

Hr mdI'8 8upport for the Mujahideen la in no way inconsistent

uith qualification as a refugee. Indeed his support	of or close
association uith	a group who were in active and vigorous

opposition to his country's authorities may well give rise to a

well founded and genuine fear of persecution for reasons	of
'membership of a particular social group	or political opinion'.

2. To say that M Saedi 'feared the repercussions of carrying

ueapons' is to avoid completely the question which must be

asked. Be may -11	have entertained this fear but according	to
him,	he was carrying weapons as part	of the resistance of the

Hujahideen to the oppressive authority of the Afghan Government.

In my vieu the decision-pakers have looked	to	symptoms and not
to	cause. According to	M Saedi, and there is no contrary

evidence, he carried and distributed small weapons because he

uas a -r of a putlcular group uhich uas being sought out

for spcirl prsmcution	and ill-treatment by the government or
authorities against	uhom it n s agitating. It uas to support the
continuation	of this agitation and to protect people from the

persecution and ill-treatment that Hr. Saedi presumably carried

h i s small wapons.

3.       Whilst I accept the evidence of Ilr. Baskir that the Saedi family can r-in indefinitely in Pakistan (at one point he qualifies

this by the legalism that the Saedi family did not demonstrate

that they had 'little prospect of settlement in Pakistan.), the

evidence does not permlt me to accept in accordance with the

terms of the Geneva Convention that he is 'able to avail himself

of the protection of that country'. Ignoring that the UNBCR

regards the Samdls as being refugees, M. Baskir in my view

unacceptably skims over the provisions of the Convention by

. .

deacribing the Saedia as being "afforded effective protection by

the authorities'.	By going on to talk about the UNECR, there is
a atrong inference that the	UNECR is "the authorities". Eowever

that may	be, the requirement of the Convention is that	the
country of	refuge must provide the protection. There	is no

evidence that Pakistan is offering to Mr. Saedi and his family

the	protection to which the Convention refers. "Residence"	is
not 'protection'	- or at leaat not necessarily	so. Left without
evidence of	the intereat of the Pakiatani Government in	the

vell-being of	the Saedi family, I am not prepared to infer that
they are free from the poasibility of indiacrimlnate	'search and

deatroy' miasiona of supporters of the Afghan regime.

4 .               Ilra. Saedi'a illiteracy and lack of education 1s irrelevant in my view to a conaideration of vhether the Saedi family were refugee., though they may be relevant to whether, assuming that

they are refugee., they ought to be included aa migrants under

Anstralia'a refugee program. Aa Mr. Basklr concluded that the

S.edi8 mere not refugees, Urn. Saedi'a personal qualities are

completely irrelevant. The reliance by Mr. Baakir on Mrs.

Saedi'a 'traditional background" in which he obviously included

her Muslim dreaa, is alao completely irrelevant to anything.

Australia, according to the evidence, has no policy on refugees

or anyono elae vhich exclude. Afghan or other females of Islamic

permuasion waring traditional Mnalim female dress. Neither does

the Geneva Convention. Eence this matter cannot be considered

under the refugee program.

For the reaaons I have given, both Wr. Baskir's	and the	respondent's
concluaiona that	the Saedi family did not qualify	€or the special

. .

humanitarian program becauae	Ur. Saedi aecretly carried weapons amount
to an error of law. The evidence	of what Mr. Saedi actually did in this
regard, which	Hr. Baskir and the then Ulnister have ascertained, does

not reprerent any breach of the appropriate criteria as to good

character. It is noteuorthy that neither Hr. Baskir nor the respondent,

in	the language of the departpent'a	inatructions or criteria, suggests
that Hr.	Saedi representa a risk to Auatralia'a	security as defined,

that he ha8 broken the law, or that he has a history of criminal activity or other anti-social behaviour. For what it is worth, it I s my view that carrying amall arm9 in the Mujahideen cause in Afghanistan in

recent years could not, In Auatralian terms. be comprised In such a

description. The departmant*8 counselling that information linking any

applicant rith, for example, political extramlam is to be "thoroughly
inw8tlgatmP has been colpletely ignored in this cam. On the evidence

before m, tho =tun of Nr. Sadi's alleged involv-nt in such

activity .Id hi8 con8equent failure to meet the good character

raquirennt8 ha8 not been investigated at all.

Further, it 18 my opinion that Hr. Saedi'a traditional nuslim beliefs

and practices have nothing	to do with baaic qualification under the
special h m t a r i a n progru. Once other criteria have been established

under this program, her religious beliefs and practices may be

considered for her a8sirilation or integration prospects, although I

find it dlfflcult to lmmgine how an otheruiae qualified person could be

dirqurllfied by	such a characteri8tic from entering Auatralia, where
many traditioually	drea8.d ltualim woman already live.
The general declaration	.bout literacy in the department's instructions

is relevant to thi8 program but the program requirea that illiteracy be

subject to a discretion8ry waiver and be balanced against compassionate

factors. The evidence reveal. no consideration having been given to

waiving thia requirement or to compassionate factors in the case of Hrs.

Saedl. It is clear that in this case the literacy criterion was applied

without any consideration	or	regard to the particular case and	its
merits.

Another irrelevancy considered under the	special humanitarian heading
was the inability of the Sa&	family to qualify as refugees. This seems
to me to have nothing whatever to	do with the special humanitarian

program which only aroae in Hr Baskir's consideration, when the

potential aigrant failed to qualify aa a refugee. In this regard also,

Hr Baakir's statement that the Saedi family did not demonstrate that

they had 'little proapect of settlement in Pakistan", also has nothing to do uith the apecial huaanitarian program, nor is it for that matter relevant to a con8ideration of their refugee atatus, aa previously

deaonatrated.

m e r the f W l y migration cat.gory.	Nr Baakir made in my view the s-8
errora. 80 urongly a88088.d Wr Sa-	an failing to satisfy the character
requirement; and although relying upon	Ilr Saedi's failure to attain the

70 point8 r0qUir.d under the point8 teat, he also put in the adverse

balance ag8in.t the Sa- f.aily, Urs Saedi's personal qualities and

Islamic faith and pr8ctice8. In relation to the points test, the

decision-P.ker's	concluaion th8t Hr Saedi'a engineering qualifications
would not meet	or receive Australian recognition was, in my opinion,
unaupported by m y evidence. In any event, the question	is not limited
to fo-1 recognition. It la rather one of the extent to which his trainlng and experi~ce would asaist his	emplowent proapects. This

wuld require at 1m.t a- inquiriea concerning what uork he had done

as an engineer and uhat experience he had gained as a result.

. .

Unfortunately no questions of l4r Saedi appear to have been directed	to
these matter..
Quite a number of other matters were not taken into consideration	all

especially in relation to	l4rs	Saedi. The obvious closeness	of the
family,	the fact that she was not the breadwinner, the fact	that	the

children are young enough to adapt quickly in Australia, the fact that

her relatives in Australia h a w been here for many years and are

apparently succes8tul migrants, the fact that this waa a family

application as to uhich there was not the slightest evidence that the

Saedi family wuld be any less successful in accomodatlng and adapting

to Australian life than the applicant and hi8 family, indicate that a

large number of relevant matters were not considered whereas a con8iderablo nmbor of irrelevant matters and arbitrary decisions were

held against the S a d I 8 .

In this regard it is 8180 important to	point out that before the then
Illnister*8 reconmidmration of Mr EMskir's	decision, he received the 15
Hay 1986 lettor fr-	Mr Rddock agprrently enclosing a letter from the
applicant. Theso lotters point out that while	the applicant Is very well

educated, he and hi8 sister come from a very devout and religious

family. Mr. Rucklock point8 out that it was the fact that	Hrs Saedi -
the youngest daughter	- was not permitted by their father, a senior

religious official. to undertake 8chooling and further education, rather

than any lack of any educational comltment, achievement or success,

uhich has brought about Hrs Saedi's illiteracy. Eaving in mind the

emphasis the deci8ion-.uker placed upon Hrs Saedi's illiteracy and the

then Illnister's reference to the educational attainments of unnamed

Afghan in Pakistan, it soems to m@ that here are xtremely

relevant consideration8	as to which no consideration at all	has ever
.	been given. The matter m a not inveatigated by	Ur Baskir and not even
adverted to by the respondent in hi.	repliea to	Ur Ruddock.

Ur Ruddock alao pointa out that Ur Saedi obtained his professional

engineering qualifications	at Mbul University, that the applicant has
supported the Saedi family overseaa at considerable expense, and	that
therefore the attachment of the Ebrahimi and the Saedi families	is

obvioualy not only clome in blood but very substantially committed

financially. It la apparent that the m C R treats the Saedi family as

refugees. Yet M Baskir and the respondent concluded otherwise because

although they agreed that Ur S8edi had a genuine fear of peraecution

which vas well-founded, it waa not due to hia membership of or support of the Uujahideen but waa due to the repercussions of carrying weapons on their behalf. For the reaaona I have given, thia in my view is playing with words.

Counsel for the respondent explained in his most helpful and clear

arrbrissions that literacy 18 not appliod aa a test where the family of

whom reunion narrow family. For example, if a huaband la in Australia and the is taking place is what might be called the inmediate or

wife

and childron are wishing to mlgrate, there are no literacy criteria

applied to the wife and children. Eowever, where an extended family wiahoa to mlgrate to join one or pore members of a wider famlly group,

the litoracy roquir-nt is applied to all members of the joining

farily. Tho literacy referred to 18 in the language of the potential

migrant. Proficiency in Engliah la relevant only in the limited context

of aPp10yrbi1ity.

The respondent's counael pointed out that a person who is not literate

becauae of religioua or political reaaons is then looked at in the

. * - 25 -

. particular circumatancea and the decision made in the residual

discretion of the decision-maker. With obvious	and perfectly proper
passion and no doubt correctness, counsel	for the respondent submitted

that illiteracy and lack of education, and such things as the Muslim

dress of Hrs Saedi, are appropriate matters to be taken into

consideration	in	assessing capacity for successful settlement into
Australia.
In regard specifically to the question	of the dress, the respondent	put
the different viewpoint that a relevant consideration	1s how	"the

existing Australian population" la likely to assimilate with a person

wearing that fozm	of dress. It waa explained that government policy
gave priority to people uho had	the best chance of settling successfully

and that the points system uas really established for that purpose. It

was	aaid that dre8s uas s a m indication of background and capacity for
assimilation. lo serious objection can h made to this definition	of
priorities. but hou an assesnmnt can 8ensibly be made of	the reaction

of "the existing Auatralian population' has not been explained. The

whole population? The population of Heu South Wales? Those vho live in Dundas? Australian Muslims or former Afghans? People who do not like

Mualims or Afghans?

It seems to m that if the Australian Government's policy IS to admit

Muslims OK Afghans, houever assessed, who qualify under certain

objective criteria applying equally to other persons in the same

categories, no such people MY h rejected on the grounds that some

existing Australiana may not chooae the neu mlgrants as companions, or as acceptable to them. The tlma for the vieus of other Australians is before the policies are fixed, not after the fixed policies are applied

on the -81s of particular reactions to particular individuals.

- 26 -

.	Eowever, the respondent was unable to point to any evldence	on	the
mattera	to	which	I have earlier referred, even for example on their

status in Pakistan. The highest the suhlssion went was that It was

present policy that they be allowed to stay.	On the other hand, it was
said that Hr Baskir vas entitled to take the view that the Saedis	had
not demonatrated that they had little prospect	of permanent settlement;

and that the Saedia' fear of returning to Afghanistan was not shown to

be on the grounds of gross violation of human rights or substantial

discrimination.

I do not accept these auhlssions. This difficult case cannot be decided

on a atrict application of reaponslbilities of proof. The problems of

escapeea from Afghani8tan living in poverty in Pakistan, or for that

matter of a hard pre88ed Au8tralian iamigration official wlth a herculean task of inVa8tig.tion. do not admlt of excessive legalism. While Wr Ba8kir'm difficult task muat certalnly be considered, the

situation of the Sadis call8 for no leaa attention. Bow could they

'prove' much about their residential or political status? Conrmon sense and general knowledge must surely be applied, with the Australian

Government not to be taken as advocating that an avowed Mujahideen

supporter rho haa fled Afghaniatan and been in Pakistan for some time

would not ba likely	to auffer serious personal consequences	if he
returned to Afghani8tan.

In The Hini8ter for Aboriginal Affairs v Peko-Wallsend Llmited (1986) 66

m 299 at 309 -10, Ih8on .l as hi8 Eonour then vas said:

"The limited role of a court reviewing the exercise of an

adninirtratiw discretion nwt constantly be borne in mind.

It is not the function of the court to substitute its own

decision for that of the acfninistrator by exercising a

. - 21 -

. dlscretion which the legislature has vasted in the

aehLinistrator. Its role is to set llmits on the exercise of

that dlscretion,	and a decision mads within those boundaries
cannot be inpqned (wednesbury	Corporation (1948) 1 K9 223
at 228).
It follow that, in the absence of	any statutory indlcation

of the weight to be givan to various considerations, it is

generally for the decision-er	and not the court to
detennine the appropriate weight to	be given to the ratters

uhlch are rsquired to be taken into account in exercising

the statutory power . . . I say 'generally' because both

principle anl authority indicate that in	sa e circmstances
a court m y set aside M dnlstrative decision which	has

failed to gim adequate might to a relevant factor of great inportance or has giwn emessiva weight to a relevant

factor of M great inportance.	The preferred g ~ ~ u r d	on which
this	Is done, h w m r , is not the	failure to take into

account relevant considerations or the taking into account of irnlmmnt considerations, but that the decision is 'mtufestly unreasonable' ."

In Sean Investments Pty Limited	v HacXellar (1981) 38 ALR 363, Deane J
said:

"The gnnud of failure to take into account a relevant

consideration will only be umda g o d if it is shown that the
decision-r has failed to take into account a
consi&ratim which he was, in the circurutances, bound to

tab Into a c m t for them to be a valid execcise of the

pcmr to decide. "

Applying these prinoiples, and other w l l established criteria under the

Judicial Rovior Act, I am of the opinion that the respondent has here failed to take into account a series of relevant matters, took into

account a series of irrelevant matters, acted uithout evidence and	other
material t o justify the doci8ion. in one case exercised his	power In
accordance vith a rule or policy rithout regard to the merits of	the
case, actod unreasonably, and made	a decision which was manifestly
unreasonable having regard	to the evidence that was available.

v

- 28 -

There being no serious suhdssion that if I found appropriate errors of

law, I should not exercise	my diacretion in favour of an order of
review, I grant the order sought by the applicant, refer the matter	to

the respondent for further conrideration in accordance wlth	law,	and
order the reapondent o pay the applicant's costs.

Comae1 and aollcltora	Hr. S. Littlemore
for the applicant	lnatructed by Australian Legal Aid Office
Counael and aollcltora	Hr. G. Eoaklng
for the reapondent Ilinlater	lnatructed by the Australian Government Solicitor
Datsa of Bearing	27, 28 Aprll 1987
Date of Judgment	23 nay 1988