SUDGMENT No. 2347 2 tee ON oncecesecneeedt CATCHWORDS JUDICIAL REVIEW - Administrative law - sponsorship application - aggrieved person - taking into account irrelevant considerations - failure to consider relevant considerations - unreasonable exercise of power - power exercised in accordance with a rule or policy without regard to the merits of the case - refugees - special humanitarian program - family migration. Administrative Decisions (Judicial Review) Act 1988 Migration Act 1966 ABDUL EBRAHIMI v THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS G 486 of 1986 CORAM: EINFELD J DATE: 23 May 1988 PLACE: Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No G 486 of 1986 dd GENERAL DIVISION Re ABDUL QUDDUS EBRAHIMI Applicant And MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent CORAM Einfeld J. DATE: 23 May 1988 Sydney MINUTE OF ORDERS 1. That the matters be referred to the respondent Minister for further consideration of the orders and decisions, in accordance with reasons for judgment herein. 2. That the respondent Minister pay the costs of the applicant. NOTE: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 486 of 1986 ) GENERAL DIVISION ) Re ABDUL QUDDUS EBRAHIMI Applicant And MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent CORAM: Einfeld J. DATE: 23 May 1988 PLACE: Sydney This is an unusual matter. Abdul Quddus Ebrahimi (the applicant) arrived in Australia on 16 November 1980 with his wife and three sons. He became a naturalized Australian citizen on 18 May 1984. Also in Australia as either citizens or permanent residents are the applicant's two younger brothers who are now aged approximately 22 and 24 years. The applicant is almost 43 years of age. His wife is said to be about 28 years old and his children are said to be approximately 18, 11 and 5 years old. Whether the first child is also the child of his wife (who would on this evidence have been 10 years old at the time) is not stated. He has three cousins here - two are married and one is single. Apart from the youngest child of the applicant, who was born in Australia, all of them migrated from Afghanistan. On 27 September 1985 the applicant completed a statutory declaration sponsoring for entry into Australia for residence his sister Nafisa Saedi now living in Pakistan, her husband 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 Saedis fled Afghanistan and now live in Islamabad. A sponsorship application occurs when an Australian citizen or permanent resident is prepared to provide help and support to someone, usually a relative, settling in Australia. There are two forms of sponsorship: (a) Standard Sponsorship - when a sponsor undertakes to provide support and assistance during the early days after migration; and (b) Full Sponsorship - when a sponsor undertakes to provide full support and assistance especially accomodation and financial support for a period of at least 12 months. In March 1986 Victor Eric Baskir, a senior immigration officer with the Department of Immigration and Ethnic Affairs in Canberra (the departwent) travelled to Islamabad at the request of the then Minister for Immigration and Ethnic Affairs (the respondent) to fulfil the difficult task of investigating approximately 300 applications for migration to Australia. He interviewed Mr and Mrs Saedi at the Australian Embassy in Islamabad on 11 March 1986 through and with the assistance of an Afghan interpreter. At this time the Saedi family may have been qualified for migration under one of three categories of migration. These were: (a) as refugees; (b) on special humanitarian grounds; (c) under the family migration program. In the events which occurred, Mr Baskir, having considered the eligibility of the Saedi family under each of these headings, concluded that they did not qualify under any of them. As the delegate of the respondent, he thereupon made a decision on 11 March 1986 to that effect which he communicated to Mr Saedi by letter dated 13 April 1986. Thereafter, on 15 May 1986 Mr Philip Ruddock MP, the Federal member for Dundas, in whose constituency the applicant and his family lived, wrote to the then Minister seeking a review and reconsideration of Mr Baskir's decision. It appears that additional representations were made to the same effect by Senator Graham Richardson, a New South Wales senator, now a Government Minister. The respondent replied to Mr Ruddock on 14 July 1986 stating that the applications involving the Saedi family had been re-examined in the light of Mr Ruddock's and Senator Richardson's representations and that he had confirmed Mr Baskir's decisions. Interestingly the letter says only that the application under the refugee and special humanitarian categories had been refused but it is clear that it was refused under the family migration program as well. Mr Ruddock tried again with the respondent by letter of 18 July 1986 who replied on 12 September adhering to his previous decisions. I shall return to these letters later. The applicant seeks a review of the decisions of Mr Baskir on 11 March and of the Minister on 14 July and 12 September 1986 under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). Although there was some discussion at the hearing as to whether there really were two or even three decisions, or perhaps only one which was subsequently confirmed, it does not seem to me necessary to decide that matter in this case. In the way I see the facts, nothing at all turms on whether there was one or more than one decision. I shall be dealing in some detail with the specific terms used by Mr Baskir and his then Minister, and although there are differences with the way in which the rejection of the application by the Saedi family for entry to Australia is explained by both, I do not think it necessary for the purpose of the resolution of this case to decide or determine how many decisions have been made. It may be taken that there was at least one decision refusing entry to the Saedi family under all and any of the relevant categories. It is clear that the respondent has and takes responsibility for the decision or decisions in this matter and that the decisions are made under the Migration Act 1966 and are thus reviewable under the Judicial Review Act. However, by way of a preliminary argument, the respondent objected to the jurisdiction of this Court to hear this application for judicial review, on the grounds that: 1. it concerns a decision or decisions on sponsorship and that such a decision is not one to which the Judicial Review Act applies; and 2. that the applicant is not a person aggrieved by the decision. In my view this is not a decision on sponsorship at all but a decision to deny entry to Australia of non-citizens seeking entry on various grounds (see Mayer v The Minister for Immigration and Ethnic Affairs (1984) 55 ALR 587 at 591). Indeed in the two letters of the respondent to Mr 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. Mr Baskir in his affidavit of 30 January 1987 filed in these proceedings describes the Saedi family's application as one of "approximately 300 applications for migration to Australia". It is also obvious that he applied criteria, considerations and other approaches applicable to applications for entry to Australia. That is what this application is about. It is an application to review a decision or decisions refusing entry. Nothing was investigated or determined adverse to the sponsor or the application for sponsorship as such. The question of Mr Ebrahimi's status as "an aggrieved person" raises interesting questions. In Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493, the Comonwealth and some of its Ministers were sued for declarations, injunctions and other orders to challenge the validity of decisions relating to a proposal by a company to establish and operate ai resort and tourist area in Queensland. The defendants applied for the statement of claim to be struck out and for the action to be dismissed on the ground that the Foundation had no standing to bring such action. Gibbs CJ at 530 said of its interest or right to sue: "_.an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds, or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should he observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi." . In Onus v Alcoa of Australia (1982) 149 CLR 27 at 42, Stephen J said of "aggrieved": "... it seems rather to involve in each case a curial assesament of the importance of the concern which a plaintiff has with the particular subject matter and of the closeness of that plaintiff's relationship to that subject matter." In Ogle & Another v Strickland & Others (1987) 71 ALR 41, a decision of a Full Court of this court, Fisher J interpreted the phrase "persons aggrieved" as including people with a "special interest". His Honour interpreted Stephen J's "curial assessment" as requiring value judgments to be made, especially assessing matters of weight and proximity. Lockhart J considering the expression "person aggrieved" said that the courts construed these expressions liberally. He said at 45: " The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests." I agree with respect with these expressions and definitions. They leave no doubt that the applicant is a person aggrieved within the meaning of section 5 (1) of the Judicial Review Act for the following principal reasons: (a) (b) (ec) (d) (e) (f) He is the brother of Mrs Saedi, a relationship which formulates the basis upon which the Saedi family's application came to be considered in the first instance. The applicant has offered a full sponsorship of the Saedi family, and has been assisting them financially while they have been in Pakistan. The Saedi family has been denied entry to Australia. The application is largely based upon the desire to have his sister and members of her family with him and his family in Australia. He is an Australian citizen and a member of the Australian public who has lodged a claim which has been decided against him. The family is close, and emotionally and spiritually interdependent . When Mr Baskir was considering the Saedi family's application to enter Australia, he had regard to, considered, and obviously applied certain instructions, criteria and other considerations made available by, and the policy of, the department. These included the contents of what is known as the "Migrant Entry Handbook", the relevant parts of which for this case may be summarised as follows: 1. LITERACY (i.e. ability to read in the native language). This 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 Mr Baskir have the discretion to waive this requirement and the handbook says in this regard: "In considering whether to waive the requirement such officers should balance any compassionate factors against the effect of illiteracy on the applicant's employability and settlement prospects. Net benefit to the cammmity is to be the primary consideration." 2. GOOD CHARACTER In stating that applicants for migration must be of good character, the departmental publications indicate that this will ordinarily be determined by a consideration of three principles: (a) Whether the applicant is a risk to Australia's security, i.e. likely to engage in "espionage, sabotage, subversion or terrorism" (b) Whether the applicant has broken the law (e) Whether the applicant has a history of criminal activity or other anti-social behaviour Other matters that should be investigated are whether the applicant has been involved in organised crime, drugs, political extremism, extortion, immigration malpractice or prostitution. The relevant publication goes on: "This is not an exhaustive list. If doubts cannot be resolved, Australia's interests come first." In the course of his interview with Mr and Mrs Saedi, Mr Baskir ascertained that the family had left Afghanistan in June 1985. Mr Saedi told him that he believed he would be arrested like his colleagues, that he had assisted the Mujahideen, that he had been pressured by the Afghan authorities to conform in his views, and had been employed in a government building project. In this work he was able to use a government jeep which he was given - no doubt for work purposes - to distribute pamphlets and small weapons covertly. Mr Saedi had completed military service in 1980 and had committed no offences. He had learned from his in-laws who had followed him to Pakistan that his home had been searched by the authorities after he and his family had left and that they were being looked for. Apparently about two months before the Saedi family left Afghanistan, Mr Saedi's brother who had close connection with the Mujahideen had been arrested. On 26 June another colleague in the Mujahideen had also been arrested. Mr Saedi's departure had taken place when he was told that he was implicated in the same sort of activities as his brother and the other man and that he was wanted by the authorities. It was for that reason that he had made arrangements to leave. In his consideration of the Saedi family as possible refugees in these circumstances, Mr Baskir had regard to the definition provided by the 1951 Geneva Convention Relating to the Status of Refugees (the Geneva Convention), which Australia has ratified and defines a refugee as a person who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being Outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." The Saedi family can apparently remain indefinitely in Pakistan and has been accepted as refugees by the United Nations High Commissioner for Refugees (UNHCR) but live in extremely poor and indigent circumstances. Mrs Saedi has no education at all and is illiterate. It is not even clear whether she can really sign her own name. Both Mr and Mrs Saedi are Muslims and Mrs Saedi wears the traditional dress of a Muslim woman. Because of these matters, Mr 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 used 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 citizens or residents (and whether the applicant is being sponsored by such a person). Because of Mrs Saedi's complete lack of -ill1- education, Mr Baskir very fairly treated Mr Saedi as the principal applicant, for it is primarily the principal applicant's points' score that determines how the family rates under the system. The pass_ score, as the relevant documentation describes it, is 70 points and Mr Saedi scored 55 points. I return to aspects of this score later. Mr Baskir's evidence is that he considered the Saedi family separately under the three headings earlier referred to as folllows: 1. Refugees The conclusions formed here were: (a) Mr Saedi did not demonstrate to Mr Baskir a fear of "persecution" within the the Geneva Convention, but rather a fear of "the repercussions of carrying weapons". (b) Mr Saedi did not satisfy the good character requirements because he "secretly carried weapons". (ec) The Saedi family could "remain indefintely in Pakistan where Afghans are afforded effective protection by the authorities and are not deemed by the UNHCR to be in need of third country resettlement". (d) "Mrs Saedi's illiteracy, complete lack of education and traditional background" led Mr Baskir to believe that "she did not have personal qualities likely to facilitate successful resettlement in Australia". He said that it was departmental - 12- policy that "the lack of successful resettlement prospects in one member of the family is relevant to the assessment of the whole family". Special Humanitarian Program The Saedi family did not qualify under this heading because: (a) (b) (ec) (da) Mr Saedi did not satisfy the good character requirements because he had "secretly carried weapons"; their fear of returning to Afghanistan was not grounded in substantial discrimination or gross violations of human rights; they did not demonstrate that they had little prospect of settlement in Pakistan; Mrs Saedi did not "possess personal qualities likely to facilitate successful resettlement in Australia" for the reasons previously given. Mr Baskir said that Mrs Saedi's traditional dress was taken into account but was "not central to" his decision. Family Migration Mr Baskir decided that the Saedi family did not qualify here because of: (a) Mr Saedi's failure to meet the "good character" requirement; (bh) Mr Saedi's inability to reach the 70 points applicable to the principal applicant under the points test; and (ec) Mrs Saedi's personal qualities earlier referred to. In relation to the points test, it is noteworthy that Mr Saedi received 20 points (out of a possible 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 possible 20 points for skills. (He also received 15 points for age, the highest that can be received because he is aged between 20 and 34 years at the time of assessment). The combination of these point scores is apparently justified by Mr Baskir on the grounds that although Mr Saedi obviously has the technical capacities of an engineer, he does not speak English and his engineering qualifications in Mr Baskir's opinion would be unlikely to be fully recognised in Australia. Thus his scores under skills and employability were accordingly reduced. There is one other observation that should be made in relation to the points test. According to its explanation by the department, sponsored relatives gain 10 additional points if they are brothers or sisters of the sponsor and five additional points if they are nephews or nieces. They receive an additional 5 points if the sponsor is an Australian citizen. Because Mr Saedi was taken as the principal applicant, for the reasons earlier given, the additional concessionary points only amounted to five, presumably on the grounds that the applicant as the sponsor was an Australian citizen. This, if I may say so, appears to be an unreasonable provision. Mrs Saedi would be entitled to 10 points as the sister of the sponsor, and the three children born at the time of the application would each be entitled to 5 points as the nephews and niece of the applicant. Yet, as Mr Saedi for good reason was taken as_ the principal applicant, it is only his entitlement to concessional points that is considered. In the case of a family group seeking to migrate, it is surely quite unreasonable to limit the allowable points concessions to one member of the family, under this aspect of qualification to migrate, while including - as I will later demonstrate was done in this case - the negative features of all members on all other aspects. However, as it was the method in operation at the relevant time, there is no legal defect in Mr Baskir's or the respondent's decisions in this case on that ground. In the respondent's letter to Mr Ruddock of 14 July 1986, Mr Baskir's determinations and assessments were somewhat fleshed out. In relation to the use of a government vehicle to distribute pamphlets and small weapons on behalf of the Mujahideen, the then Minister said: "I understand the reasons for such activity but it disturbs me because in my view it constitutes action which is contrary to the principles of our humanitarian programs." It was not denied by counsel for the respondent in the course of the hearing of this matter that the Australian Government has at all relevant times shared at least the political goals of the Mujahideen towards the current Afghan regime, in that both were seeking the removal from office of the Soviet-backed government or at least its Soviet backers. When the respondent speaks of Australia's "humanitarian" programs, they would surely require some consideration to have been given to the fact that these small weapons might have been distributed to citizens who were innocently under threat from the activities of the Afghan armed forces or their Soviet allies. Some great heroes have carried ''small weapons' on behalf of groups and ideologies with whom Australia has been in close alliance in the past. I can well imagine, and the respondent did not deny it in this case, that Australia has itself when fighting enemies engaged or used local citizens to carry small weapons on its behalf for the perceived common good of both Australia and the recruited carrier. In my view, it is not possible to categorise a person as lacking good character and acting contrary to the principles of Australian humanitarianism, merely on the ascertainment of information that he carried and covertly distributed some small weapons in such circumstances. No information has been obtained as to where they were carried, how they were carried, how many were carried, what precise weapons were carried, to whom they were in fact distributed, at whose request they were distributed, in what conditions of personal danger to Mr Saedi and his family they were carried and distributed, whether they were distributed for the protection of Mr Saedi and his immediate or wider family or friends, and many other similar matters. There is no evidence that the distribution of these weapons was contrary to the law of Afghanistan at the time, nor even whether it was contrary to the interests of Australia at the time, having regard to the political and military situation that existed in Afghanistan when these weapons were apparently being carried. I can understand that the work pressures on Mr Baskir at the time no doubt limited his capacity to investigate all these matters thoroughly in every case, but the Judicial Review Act makes little allowance for such circumstances. If the case of the person concerned is not fully and fairly examined, the Act normally prescribes only one result. As to Mrs Saedi's failure to obtain a favourable assessment from Mr Baskir as to prospects of settlement in Australia. The then Minister said this: "The purpose of the settlement assessment ... is to gauge the capacity of the principal applicant and family members to settle successfully. An adult of working age who 1s not literate and has had no fommal education, such as Mrs Saedi is generally precluded from entry on settlement grounds. This assessment can flow on to the family as a whole because, in order to qualify for entry, it is expected that all family members will satisfy standard immigration requirements. The Minister continued: "I am advised that there were numerous instances of Afghan families, seen in Islamabad at the same time as the Saedis, in which the female members had completed a formal education including to tertiary level." In my opinion this is a completely unacceptable ground for the decision to refuse the Saedi family entry to Australia. On the one hand, as I have pointed out, the points test is determined on the basis of the principal applicant - and in this case the failure to take Mrs Saedi into account deprived the Saedi family of additional points for the family closeness between her and the applicant; on the other hand, the then Minister is in effect saying here that even if Mr Saedi had attained the 70 points required, the illiteracy of Mrs Saedi would have been enough to reject them as migrants - assessed 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 family 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 government, on the run from that government, and later in appallingly inadequate conditions in a foreign country? What precisely was the relevance of the sighting of other Afghan females in Islalambad who had completed tertiary education, I do not know. Perhaps they were members of the former Afghan ruling family. Perhaps they were spies for the Afghan authorities pretending to be educated to tertiary level but in fact trying to chase and identify refugees from Afghanistan. Perhaps they were wealthy Afghans who had been in Pakistan for years and had gained their tertiary education there. Perhaps they had married representatives of the UNHCR who had been in Pakistan for some time and through those liaisons had been able to gain an education in some western country. With every respect to the then Minister and to the extent to which this matter played a role at all in this decision, I consider that the actual or presumed educational qualifications of other Afghan women in Islamabad are unproved and completely irrelevant. In his letter in immediate reply to the Minister dated 18 July 1986, Mr Ruddock understandably wrote: "In the second paragraph you state that active support for the Mujahideen disturbs you and it is contrary to the principles of our humanitarian programs. Could you please as a matter of urgency elaborate?" To this seemingly reasonable request, the then Minister replied on 12 September 1986 thus: "I should make the point that this application was unsuccessful because family members were umable to demonstrate that they had a well founded reason to fear, or were the victims of, persecution or substantial discrimination. Furthermore, Nafisa Saedi received an unfavourable settlement assesssment for reasons previously outlined. The concern which I expressed in my earlier letter was that, irrespective of the merits of his cause, the fact that Nafisa's husband carried weapons for the Mujahideen does not constitute grounds for humenitarian§ resettlement in Australia. This is because the refugee and special humanitarian program is in place to assist the victims of these situations rather than the participants." Whatever else this rather confused and confusing assessment means, it seems to me to be a clear cut assertion that Mr Saedi was a participant in causing people to become refugees or suffer inhumanity. There is no evidence before me to support any such conclusion or finding. In my opinion, the decision or decisions concerning the Saedi family's qualifications as refugees call for judicial review for the following reasons: 1. It its irrelevant to the question whether a person qualifies for definition as a refugee under the Geneva Convention as _ to whether he carried weapons, secretly or at all. In other words, Mr Saedi's support for the Mujahideen is in no way inconsistent with qualification as a refugee. Indeed his support of or close association with 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". To say that Mr Saedi "feared the repercussions of carrying weapons" is to avoid completely the question which must be asked. He may well have entertained this fear but according to him, he was carrying weapons as part of the resistance of the Mujahideen to the oppressive authority of the Afghan Government. In my view the decision-makers have looked to symptoms and not to cause. According to Mr Saedi, and there is no _ contrary evidence, he carried and distributed small weapons because he was a member of a particular group which was being sought out for special persecution and ill-treatment by the government or authorities against whom it was agitating. It was to support the continuation of this agitation and to protect people from the persecution and ill-treatment that Mr. Saedi presumably carried his small weapons. Whilst I accept the evidence of Mr. Baskir that the Saedi family can remain 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 permit 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 UNHCR regards the Saedis as being refugees, Mr. Baskir in my view unacceptably skims over the provisions of the Convention by describing the Saedis as being "afforded effective protection by the authorities". By going on to talk about the UNHCR, there is a strong inference that the UNHCR is "the authorities". However 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 least not necessarily so. Left without evidence of the interest of the Pakistani Government in the well-being of the Saedi family, I am not prepared to infer that they are free from the possibility of indiscriminate 'search and destroy' missions of supporters of the Afghan regime. 4. Mrs. Saedi's illiteracy and lack of education is irrelevant in my view to a consideration of whether the Saedi family were refugees, though they may be relevant to whether, assuming that they are refugees, they ought to be included as migrants under Australia's refugee program. As Mr. Baskir concluded that the Saedis were not refugees, Mra. Saedi's personal qualities are completely irrelevant. The reliance by Mr. Baskir on Mrs. Saedi's "traditional background" in which he obviously included her Muslim dress, is also completely irrelevant to anything. Australia, according to the evidence, has no policy on refugees or anyone else which excludes Afghan or other females of Islamic persuasion wearing traditional Muslim female dress. Neither does the Geneva Convention. Hence this matter cannot be considered under the refugee program. For the reasons I have given, both Mr. Baskir's and the respondent's conclusions that the Saedi family did not qualify for the special humanitarian program because Mr. Saedi secretly carried weapons amount to an error of law. The evidence of what Mr. Saedi actually did in this regard, which Mr. Baskir and the then Minister have ascertained, does not represent any breach of the appropriate criteria as to good character. It is noteworthy that neither Mr. Baskir nor the respondent, in the language of the department's instructions or criteria, suggests that Mr. Saedi represents a risk to Australia's security as defined, that he has broken the law, or that he has a history of criminal activity or other anti-social behaviour. For what it is worth, it is my view that carrying small arms in the Mujahideen cause in Afghanistan in recent years could not, in Australian terms, be comprised in such a description. The department's counselling that information linking any applicant with, for example, political extremism is to be "thoroughly investigated" has been completely ignored in this case. On the evidence before me, the nature of Mr. Saedi's alleged involvement in such activity and his consequent failure to meet the good character requirements has not been investigated at all. Further, it is my opinion that Mra. Saedi's traditional Muslim beliefs and practices have nothing to do with basic qualification under the special humanitarian program. Once other criteria have been established under this program, her religious beliefs and practices may be considered for her assimilation or integration prospects, although I find it difficult to imagine how an otherwise qualified person could be disqualified by such a characteristic from entering Australia, where many traditionally dressed Muslim women already live. The general declaration about literacy in the department's instructions is relevant to this program but the program requires that illiteracy be subject to a discretionary waiver and be balanced against compassionate - 22 - factors. The evidence reveals no consideration having been given to waiving this requirement or to compassionate factors in the case of Mrs. Saedi. It 1s 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 Saedi family to qualify as refugees. This seems to me to have nothing whatever to do with the special humanitarian program which only arose in Mr Baskir's consideration, when the potential migrant failed to qualify as a refugee. In this regard also, Mr Baskir's statement that the Saedi family did not demonstrate that they had "little prospect of settlement in Pakistan", also has nothing to do with the special humanitarian program, nor is it for that matter relevant to a consideration of their refugee status, as previously demonstrated. Under the family migration category, Mr Baskir made in my view the same errors. He wrongly assessed Mr Saedi as failing to satisfy the character requirement; and although relying upon Mr Saedi's failure to attain the 70 points required under the points test, he also put in the adverse balance against the Saedi family, Mrs Saedi's personal qualities and Islamic faith and practices. In relation to the points test, the decision-maker's conclusion that Mr Saedi's engineering qualifications would not meet or receive Australian recognition was, in my opinion, unsupported by any evidence. In any event, the question is not limited to formal recognition. It is rather one of the extent to which his training and experience would assist his employment prospects. This would require at least some inquiries concerning what work he had done as an engineer and what experience he had gained as a result. Unfortunately no questions of Mr Saedi appear to have been directed to these matters. Quite a number of other matters were not taken into consideration at all especially in relation to Mrs 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 have been here for many years and are apparently successful migrants, the fact that this was a family application as to which there was not the slightest evidence that the Saedi family would be any less successful in accommodating and adapting to Australian life than the applicant and his family, indicate that a large number of relevant matters were not considered whereas a considerable number of irrelevant matters and arbitrary decisions were held against the Saedis. In this regard it is also important to point out that before the then Minister's reconsideration of Mr Baskir's decision, he received the 15 May 1986 letter from Mr Ruddock apparently enclosing a letter from the applicant. These letters point out that while the applicant is very well educated, he and his sister come from a very devout and religious family. Mr. Ruddock points out that it was the fact that Mrs Saedi - the youngest daughter - was not permitted by their father, a senior religious official, to undertake schooling and further education, rather than any lack of any educational commitment, achievement or success, which has brought about Mrs Saedi's illiteracy. Having in mind the emphasis the decision-maker placed upon Mrs Saedi's illiteracy and the then Minister's reference to the educational attainments of unnamed Afghan women in Pakistan, it seems to me that these are extremely relevant considerations as to which no consideration at all has ever been given. The matter was not investigated by Mr Baskir and not even adverted to by the respondent in his replies to Mr Ruddock. Mr Ruddock also points out that Mr Saedi obtained his professional engineering qualifications at Kabul University, that the applicant has supported the Saedi family overseas at considerable expense, and that therefore the attachment of the Ebrahimi and the Saedi families is obviously not only close in blood but very substantially committed financially. It is apparent that the UNHCR treats the Saedi family as refugees. Yet Mr Baskir and the respondent concluded otherwise because although they agreed that Mr Saedi had a genuine fear of persecution which was well-founded, it was not due to his membership of or support of the Mujahideen but was due to the repercussions of carrying weapons on their behalf. For the reasons I have given, this in my view is Playing with words. Counsel for the respondent explained in his most helpful and clear submissions that literacy is not applied as a test where the family of whom reunion is taking place is what might be called the immediate or narrow family. For example, if a husband is in Australia and the wife and children are wishing to migrate, there are no literacy criteria applied to the wife and children. However, where an extended family wishes to migrate to join one or more members of a wider family group, the literacy requirement is applied to all members of the joining family. The literacy referred to is in the language of the potential migrant. Proficiency in English is relevant only in the limited context of employability. The respondent's counsel pointed out that a person who is not literate because of religious or political reasons is then looked at in the - 25 - particular circumstances 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 Mrs 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 is how "the existing Australian population" is likely to assimilate with a person wearing that form of dress. It was explained that government policy gave priority to people who had the best chance of settling successfully and that the points system was really established for that purpose. It was said that dress was some indication of background and capacity for assimilation. No serious objection can be made to this definition of priorities, but how an assessment can sensibly be made of the reaction of "the existing Australian population" has not been explained. The whole population? The population of New South Wales? Those who live in Dundas? Australian Muslims or former Afghans? People who do not like Muslims or Afghans? It seems to me that if the Australian Government's policy is to admit Muslims or Afghans, however assessed, who qualify under certain objective criteria applying equally to other persons in the same categories, no such people may be rejected on the grounds that some existing Australians may not choose the new migrants as companions, or as acceptable to them. The time for the views of other Australians is before the policies are fixed, not after the fixed policies are applied on the basis of particular reactions to particular individuals. However, the respondent was unable to point to any evidence on the matters to which I have earlier referred, even for example on their status in Pakistan. The highest the submission went was that it was present policy that they be allowed to stay. On the other hand, it was said that Mr Baskir was entitled to take the view that the Saedis had not demonstrated that they had little prospect of permanent settlement; and that the Saedis' 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 submissions. This difficult case cannot be decided on a strict application of responsibilities of proof. The problems of escapees from Afghanistan living in poverty in Pakistan, or for that matter of a hard pressed Australian immigration official with a herculean task of investigation, do not admit of excessive legalism. While Mr Baskir's difficult task must certainly be considered, the situation of the Saedis calls for no less attention. How could they 'prove' much about their residential or political status? Common sense and general knowledge must surely be applied, with the Australian Government not to be taken as advocating that an avowed Mujahideen supporter who has fled Afghanistan and been in Pakistan for some time would not be likely to suffer serious personal consequences if he returned to Afghanistan. In The Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 66 ALR 299 at 309 -10, Mason J as his Honour then was said: "The Limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its ow decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednes! Corporation (1948) 1 KB 223 at 228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, 1s not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable' ." In Sean Investments Pty Limited v MacKellar (1981) 38 ALR 363, Deane J said: "The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." Applying these principles, and other well established criteria under the Judicial Review 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 without evidence and other material to justify the decision, in one case exercised his power in accordance with a rule or policy without regard to the merits of the case, acted unreasonably, and made a decision which was manifestly unreasonable having regard to the evidence that was available. There being no serious submission that if I found appropriate errors of law, I should not exercise my discretion in favour of an order of review, I grant the order sought by the applicant, refer the matter to the respondent for further consideration in accordance with law, and order the respondent to pay the applicant's costs. end aii 1 certify tact 'Ts ond the oa 7 : preceang peces cre a tru cory ~ the ; Rezsons for Jucemont here. O° 6S Fonou Mr, Justice Entel wane NE ogo Associates Dated? 23 MAY INBS Counsel and solicitors for the applicant Counsel and solicitors for the respondent Minister Dates of Hearing Date of Judgment Mr. S. Littlemore instructed by Australian Legal Aid Office Mr. G. Hosking instructed by the Australian Government Solicitor 27, 28 April 1987 23 May 1988