Fard v Secretary, Department of Immigration and Border Protection

Federal Court of Australia|2016-04-26|Before: Mr J, Griffiths J

The interlocutory applications filed on 4 and 8 April 2016 be dismissed.
The amended notice of appeal be dismissed.
The applicant pay the respondent's costs, as agreed or assessed, of both the interlocutory applications and the amended notice of appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 The appellant (whom I will refer to as Ms Fard) challenges under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) a decision which was handed down by the Administrative Appeals Tribunal (AAT) on 9 October 2015 (see Shahin Dokht Nozohoor Mehrabad v Secretary, Department of Immigration and Border Protection [2015] AATA 790). Despite the different names, it was common ground that Ms Fard was the applicant in the AAT proceeding. The AAT dismissed Ms Fard's application under the Freedom of Information Act 1982 (Cth) (the FOI Act) to have amended records of the Department of Immigration and Border Protection (the Department) containing her personal information, which she claimed were incorrect. Broadly stated, the information which Ms Fard wished to have corrected was information that she had a son named Sohail Laghaifar (or variants of that spelling). In both the AAT proceeding and in previous litigation in this Court, this person was referred to as Mr Qeumars. I shall also adopt that approach. Mr Qeumars claims that he is not the son of Ms Fard but rather is the grandson of a Shah of Iran who was deposed in 1925. Mr Qeumars claims that he is the true heir to the throne of Iran. 2 As will shortly emerge, the AAT dismissed Ms Fard's application for review under s 42B(1)(b) of the AAT Act on the basis that the AAT was satisfied that the application had no reasonable prospects of success. 3 Before summarising the AAT's reasons for decision, it is convenient to outline Ms Fard's earlier unsuccessful litigation. Those proceedings concerned her application in this Court under s 39B of the Judiciary Act 1903 (Cth) for injunctive relief against the Minister for Immigration and Border Protection (the Minister). Ms Fard sought to prohibit the Minister from holding any record relating to her which recorded that she had a son identified by the name "Sohyle Lagheyefar". She also sought an injunction prohibiting the Minister from stating or demonstrating in any way that the person Sohyle Lagheyefar is the name or identity of her son. 4 A trial extending over 11 days between March 2012 and March 2013 was conducted by Gray J. The application was dismissed on the basis that Ms Fard had failed to establish any cause of action which would have entitled her to the relief she sought. His Honour also found that, in any event, Ms Fard had failed to prove the facts on which she sought to rely at trial. 5 Justice Gray described the case as "the strangest case I have encountered in almost 29 years as a judge" (Fard v Minister for Immigration and Citizenship [2013] FCA 452; 140 ALD 291 (Fard at first instance) at [1]). Those observations may in part have been directed to the submission which was put to his Honour by Ms Fard's counsel (who also appeared for Ms Fard in the AAT and represents her in this "appeal") that false information had been provided to the effect that Ms Fard had a son named Sohail Laghaifar (by whatever spelling) as part of a plan. This plan was described by his Honour at [86] as a plan involving the rescue of Mr Qeumars from imprisonment and torture in Bulgaria, bringing him to Australia without his consent and forcing upon him a false identity, in order to prevent him from ever leaving Australia. 6 After conducting a detailed review of the evidence before the Court upon which Ms Fard relied, Gray J came to the following conclusion at [95]: I have found the more probable view of the facts of this case to be that Ms Fard does have a son named Sohail Laghaifar (or some variant of that spelling). He is her eldest child and her elder son, a brother to her second son Siamak and her daughter Sohaila. It is highly probable that Mr Qeumars is the son whose true name is Sohail Laghaifar. Since he has come to Australia, and since he has married Ms Erez, that son has chosen to pass himself off as his Imperial Majesty Soltan Qeumars Shah Qajar. Whether he has done so for the purpose of improving his social status, by representing himself as a member of a royal family, or for personal gain, with a view to laying claim to some benefit that might attach to membership of that family, I cannot say. The evidence does not enable me to make a finding as to his purpose. If Mr Qeumars is to be successful in passing himself off as a royal person, it is obviously inconvenient for him to have the fact that he is the son of Ms Fard known publicly. Anyone investigating his claim to royalty and discovering that Ms Fard is his mother would be able to refute his claim easily. Mr Qeumars therefore wishes to assert that he is not Sohail Laghaifar and is not the son of Ms Fard. It is probable that Ms Fard wishes to assist him in this endeavour, and has therefore been prepared to renounce her parentage of him. 7 For reasons explained by his Honour at [97], Gray J found that Ms Fard and Mr Qeumars had lied in the course of their evidence. His Honour concluded, reluctantly, at [98] that Ms Fard and Mr Qeumars "have concocted significant parts of their evidence in this case, in order that Mr Qeumars might accomplish his aim of being accepted as the true heir to the throne of Iran." 8 Ms Fard's appeal to the Full Court from Gray J's decision was unsuccessful (see Fard v Minister for Immigration and Border Protection [2013] FCAFC 126). In dismissing the appeal, the Full Court observed at [14] that Ms Fard had not identified any cause of action which she could pursue against the Minister. The Full Court observed at [18] that, for some reason, Ms Fard had chosen not to pursue the statutory regime under Pt V of the FOI Act for correcting records which were found to be inaccurate or misleading. The Full Court also found (at [22]) that Ms Fard's challenge on appeal to the primary judge's findings of fact was "baseless". The Full Court stated at [24] that it was open to the primary judge to reject the evidence of both Ms Fard and Mr Qeumars as witnesses of truth. Their Honours added at [24]: … the trial judge found that both witnesses had concocted significant parts of their evidence in order that Mr Qeumars might accomplish his aim as being accepted as the true heir of the throne of Iran. Further, some of their evidence was inconsistent with the documentary record. 9 The Full Court also rejected Ms Fard's claim that the primary judge was biased. 10 Ms Fard's application for special leave to appeal to the High Court against the Full Court's decision was dismissed (see Fard v Minister for Immigration and Border Protection [2014] HCASL 85).

The AAT proceeding 11 Returning now to the AAT's decision and to relevant events leading up to the making of that decision, on 31 December 2013 Ms Fard applied under s 48 of the FOI Act to have the Department's records containing her personal information corrected in the manner described above. That application was refused by the Department on 30 January 2014 and, following a request by Ms Fard for internal review of that decision, on 7 May 2014 the primary decision was affirmed on internal review. Ms Fard applied to the Information Commissioner under s 54L of the FOI Act for review of the Department's decision on internal review. On 24 March 2015, the Information Commissioner's delegate decided to exercise her discretion under s 54W(b) of the FOI Act not to undertake a review of the Department's decision because it was considered desirable that the decision be considered by the AAT. 12 On or about 14 July 2015, Ms Fard filed written submissions in the AAT which were entitled "Submissions on behalf of the applicant concerning the lodgement of documents under section 37 of the Administrative Appeals Tribunal Act". The submissions referred to directions which had been made by the Tribunal on 10 June 2015, which required the Department to provide the Tribunal and Ms Fard with a copy of the second page of a facsimile dated 28 May 1993 and to advise the Tribunal and Ms Fard whether the Department agreed to provide the files of Sohyle/Sohail Lagheyefar. Ms Fard complained that the Department had not complied with these directions and that its explanation for doing so was unsatisfactory. The submission drew attention to the fact that the two travel documents which are described in [39(a)] and [39(b)] below both had the visa number K4551 notwithstanding that the first document purported to relate to a female while the second purported to relate to a male. Ms Fard drew attention to the fact that other documents which were before the AAT revealed that visa code K4551 was used on a travel document relating to her aunt, Roofia Solouki, whereas the visa code K4552 was used for her aunt's partner, Mr Farhad Mooranbakht. 13 Ms Fard asked the AAT to order the Department inter alia to: provide the full meaning and criteria of the visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive (para (a) of Ms Fard's submission dated 14 July 2015); search all relevant files, microfilm and computer records, including certain specified files, for any copies of Document for Travel to Australia 032105 and provide a copy of any such document located and details of its location (para (c) of Ms Fard's submission dated 14 July 2015); and provide a sworn affidavit from the person responsible for the provision of the information sought above, deposing as to whether or not the original Document for Travel to Australia 032105 is in his or her possession or under his or her control, and if it has passed out of their possession or control, details of how the original Document for Travel to Australia 032105 passed out of their possession or control, including details of which file it is or was contained in (para (e) of Ms Fard's submission dated 14 July 2015). 14 On 16 July 2015, the AAT Conference Registrar made directions which required the Department inter alia: (1) to give to the AAT and the applicant before 22 July 2015 a response to Ms Fard's submissions dated 14 July 2015 and, in particular, to paragraphs (a) and (e) thereof (paragraph 1 of the directions); and (2) on or before 12 August 2015, to give the Tribunal and Ms Fard an affidavit addressing paragraphs (a), (c) and (e) of Ms Fard's submissions dated 14 July 2015 (paragraph 3(a) of the directions). 15 On 22 July 2015, the Australian Government Solicitor, who acted for the Department, wrote to the AAT District Registrar and to Ms Fard in relation to the directions dated 16 July 2015. The letter confirmed that the Department was "in the process of ascertaining the details of visa codes K4551 and K4552" and stated that the Department would provide this information in affidavit form in accordance with the direction made by the AAT in paragraph 3 of the directions. The letter also summarised the history of the matter, including the previous proceeding in this Court and in the High Court. The AAT was asked to progress the matter to hearing in order to ensure that unnecessary expenditure of time and resources was avoided. 16 This letter led to further directions being made on 6 August 2015 by Dr Popple, the senior member who ultimately heard the issue whether the review application should be summarily dismissed. Under these directions, Ms Fard was required to provide submissions before 20 August 2015 on the issue whether the Tribunal was able to make the factual findings required for her to succeed in the matter, given the previous findings of Gray J in Fard at first instance. Ms Fard was also directed to provide submissions as to whether her application should be dismissed under s 42B(1)(b) of the AAT Act. The Department was required to provide submissions on these matters. 17 Following the directions made on 6 August 2015, the Department's solicitors wrote to the AAT Registry (and copied the email to Ms Fard personally) indicating that they thought it appropriate that order 3 of the directions made on 16 July 2015 should be suspended until the s 42B issue was resolved. 18 On 10 August 2015, Ms Fard responded to the Department's solicitors and stated that she did not consent to their proposal. She said that the "new evidence is something I may wish to address in submission to the Tribunal on the threshold question raised in regard to the Section 42B of the AATA". 19 Later on 10 August 2015, the Department's solicitors wrote again to the AAT Registry (and copied in Ms Fard) and attached the correspondence with Ms Fard on the question whether order 3 should be suspended. The Department's solicitors wrote: The respondent requests a staying of order 3(a) of the directions because we consider an affidavit of searches of the male and female versions of the Document for Travel to Australia 032105, as well as an affidavit explaining visa codes K4551 and K4552 do not assist in the determination of the threshold issue of whether the application should be dismissed under s 42B of the AAT Act. In the applicant's response to our request for consent, the applicant does not appear to press for the affidavits for the purposes of providing submissions on the threshold question. 20 An order was subsequently made by the senior member on 10 August 2015 in which he vacated direction 3(a) made on 16 July 2015. Accordingly, the Department was no longer required to provide an affidavit which addressed the specified parts of Ms Fard's submissions dated 14 July 2015. 21 Prior to the AAT's hearing on 24 September 2015, Ms Fard filed two affidavits in the AAT which, she said, included "fresh evidence" which was not available in the earlier proceedings in the Federal Court and which, she submitted, demonstrated that documents before the Court were fabricated. 22 The "fresh evidence" adduced by Ms Fard in the AAT comprised: a statutory declaration dated 27 January 2015 by Ms Fard's aunt (Roofia Solouki) which attached certificates and travel documents that the aunt said she discovered in an old suitcase in November 2014; a statutory declaration dated 11 February 2015 by the aunt, which attached various documents from the 1980s and asserted that she did not make, sign or post those documents; a statutory declaration dated 12 February 2015 by a woman who said that she visited Ms Fard's aunt's home in January 2015 and that she and her husband discovered some documents which were in a hidden compartment of a briefcase which the aunt showed them (the documents were annexed to the affidavit); a statutory declaration dated 12 February 2015 by that woman's husband in similar terms, with the same documents annexed; and an affidavit by Mr Qeumars which annexed copies of two travel documents, one of which was amongst the documents discovered in the hidden compartment and was also attached to Ms Fard's affidavit. 23 Ms Fard contended in the AAT that this "fresh evidence" demonstrated that some of the documents that were before Gray J had been tampered with. 24 Ms Fard also filed two separate written outlines of submissions prior to the AAT hearing on 24 September 2015. In the first, Ms Fard contended that various documents in Fard at first instance were fabricated. The second set of submissions addressed the question whether the proceeding should be dismissed under s 42B of the AAT Act. This was opposed by Ms Fard on the basis of what was submitted to be the "strength of the applicant's case based on the factual evidence, including the fresh evidence". In these submissions, the AAT was also asked to make a referral to this Court under s 45 so as to "remove any conflict and new findings and orders could be issued". The submissions did not define with any particular precision the question of law which Ms Fard asked the AAT to refer to the Court, however, the relevant part of her written submissions were as follows: A question of law remains as to whether the Fresh Evidence should be admitted into evidence and considered in the exercise of discretion by the AAT and/or the Federal Court. A question of law remains to decide if there has been a miscarriage of justice in view of the full evidence, and what the Fresh Evidence may now demonstrate. A question of law remains under Section 36D(2)(a), as to whether the respondent should disclose to the Tribunal and the applicant information and matter containing the full meaning and criteria of the Visa Codes K4551 and K4552 as they applied from 1984 to 1990 inclusive, as per the Tribunal's direction 1 of 16 July 2015. A question of law remains as to whether this matter should be referred to the Federal Court under Section 45. 25 It is convenient to set out some relevant provisions in both the FOI Act and the AAT Act before summarising the AAT's reasons for decision. 26 Section 48 of the FOI Act provided: 48 Application for amendment or annotation of personal records Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person: (a) that is incomplete, incorrect, out of date or misleading; and (b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the person may apply to the agency or Minister for: (c) an amendment; or (d) an annotation; of the record of that information kept by the agency or Minister. 27 Section 42B(1) of the AAT Act provided: 42B Power of Tribunal if a proceeding is frivolous, vexatious etc. (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application: (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) has no reasonable prospect of success; or (c) is otherwise an abuse of the process of the Tribunal … 28 Section 45 of the AAT Act provided: 45 Reference of questions of law to Federal Court of Australia (1) The Tribunal may, with the agreement of the President, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision. The Tribunal may do so on its own initiative or at the request of a party to the proceeding. Note: This Part does not apply to certain migration proceedings (see section 43C). (2) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section. (2A) If, after consulting the President, the Chief Justice of the Court considers it appropriate, that jurisdiction is to be exercised by the Court constituted as a Full Court. (2) Where a question of law arising in any proceeding has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding: (a) give a decision to which the question is relevant while the reference is pending; or (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question. 29 In his reasons for decision, the AAT senior member found that, although he was not bound to make findings of fact consistent with findings previously made by Gray J, he could take those findings into consideration. Ms Fard does not challenge this finding. 30 The senior member took into account Gray J's finding that Ms Fard and Mr Qeumars had "concocted significant parts of their evidence". The senior member concluded that it was likely that the latest "fresh evidence" had also been concocted for the purposes of the AAT review. He said that it was "highly improbable" that the documents had remained undiscovered for so long and that they were revealed only after two visitors to the aunt's home were invited to inspect the briefcase. He added that Gray J's findings of fact were made on the basis of many documents and several witnesses and that for the "fresh evidence" to cast any doubt on his Honour's findings, "it would have to be indicative of a conspiracy broader than the fabrication of documents". He described the evidence of such a conspiracy as "highly improbable" (at [30]). The senior member then added (at [31]) that, in any event, even if there was such a conspiracy and some of the documents before the Federal Court were fabricated, "that does not necessarily mean that [Ms Fard] does not have a son named Sohail Laghaifar (or some variant of that spelling)". 31 Accordingly, the AAT concluded that it could not make the factual findings required under s 48 of the FOI Act (relevantly, that the Department's records were incorrect) for Ms Fard's application to succeed and that, having regard to Gray J's findings and the evidence filed in the AAT, it was "highly probable that [Ms Fard] does have a son named Sohail Laghaifar" (at [34]). For those reasons, the application for review was dismissed on the basis that it had no reasonable prospects of success. The AAT noted that it was open to Ms Fard under s 51 of the FOI Act to provide a statement to the Department regarding the alleged errors and such a statement would be noted on the Department's records. 32 As to Ms Fard's request that the AAT refer a number of questions of law to this Court under s 45 of the AAT Act, the senior member concluded at [39] that he did not consider that there were any questions of law that were appropriate for such a referral and he observed that it was open to either party to appeal from its decision on a question of law under s 44 of the AAT Act.

The "appeal" to this Court 33 In her notice of appeal to this Court from the AAT's decision, Ms Fard identified the following purported questions of law (without alteration): Questions of law A question of law arises from the decision in this matter as to, whether; 1. the Appellant has been denied procedural fairness in the process of making the decision; 2. the decision was made in the absence of evidence that was withheld by the Respondent and Section 36D (2) (a) of the Administrative Appeals Act applied; 3. Fresh evidence was not considered, or adequately considered, in conjunction with all the evidence available to the Tribunal; 4. Fresh evidence was not considered in conjunction with evidence which the Respondent withheld from the Appellant, and the Tribunal; 5. To fulfil the Tribunal's obligations under Section 2A of the Administrative Appeals Tribunal Act the Tribunal must have referred the decision to the Federal Court under Section 45 The Administrative Appeals Act; 6. The visa for Sohyle Lagheyefar (male) born 12 December 1966, visa number V619<00309C subclass K4551, issued 11 December 1989 is false document; 7. The decision made by the Tribunal fulfilled the Tribunal's objective imposed upon it under Section 2A of the Administrative Appeals Tribunal Act. 34 In her notice of appeal, Ms Fard asked the Court to make the following findings of fact (presumably under s 44(7) of the AAT Act) (without alteration): Findings of fact that the Court is asked to make 1. That the daughter of the Appellant, Sohyle Lagheyefar did not travel to Australia on or about 27 December 1989 on visa issued to Sohyle Lagheyefar, born 12 December 1966, contained on Document for Travel to Australia 032105, and being visa number V619<00309C K4551 W303DU. 2. That Visa number V619<00309C K4551 W303DU issued to Sohyle Lagheyefar, born 12 December 1966, and contained on Document for Travel to Australia 032105, has been the subject of forgery. 3. That Visa number V619<00309C K4551 W303DU issued to Sohyle Lagheyefa born 12 December 1966, and contained on Document for Travel to Australia 032105 was invalid, for travel to Australia, or to permit entry to Australia on or about 27 December 1989. 35 The notice of appeal contained the following single ground relied on by Ms Fard (without alteration): 1. On 16 July 2015 the Tribunal made a direction to the Respondent to disclose to the Tribunal, and the Appellant , information and matter containing the full meaning and criteria of the Visa Codes K4551 and K4552 as they applied from 1984 to 1990 inclusive, and by The Respondent failing to provide such information and matter ,the decision was made without evidence that could reasonably be expected to have been directly relevant to the validity of visa number V619<00309C K4551 W303DU on or about 27 December 1989.,and as such; a. the Appellant has been denied procedural fairness within the process of making this decision ; and b. the Appellant and the Tribunal were denied relevant evidence that was likely to have affected the decision. 36 During the course of the hearing of the "appeal", Mr Wrenn, who appeared for Ms Fard, sought leave to amend the orders sought in the notice of appeal. Ms Fard no longer sought declaratory relief to the effect that Sohyle Lagheyefar was not her biological son, nor did she press her claim for an order from the Court that the Department amend its records. The orders sought in the amended notice of appeal were as follows (without alteration): 1. That the Appeal be upheld; 2. That the matter 2015/1668 subject of this appeal be remitted back to the Administrative Appeals Tribunal for further determination; 3. That the respondent provide the Tribunal and the applicant with information and matter containing the full meaning and criteria on visa codes K4551 & K4552 as they applied from 1984-1990; 4. Such other order as the Court deems fit; 5. That the respondent pay the costs of and incidental to the process. 37 The Department did not oppose leave being granted to amend the notice of appeal in this way and leave was granted. In other respects, the amended notice of appeal was in the same form as the original notice of appeal, including the specified questions of law, findings of fact which the Court was asked to make and the single ground of appeal.

Ms Fard's interlocutory applications 38 Ms Fard filed two interlocutory applications, which were heard immediately before the commencement of the substantive hearing. After hearing submissions, both interlocutory applications were dismissed, with costs. I indicated that I would give reasons for those rulings in my final reasons for judgment. It is convenient to deal with each of the interlocutory applications in turn.

(a) The first interlocutory application 39 By an interlocutory application filed on 4 April 2016 Ms Fard sought to adduce further evidence in the "appeal" to the Court. That further evidence comprised: (a) a copy of version 1 of Document for Travel to Australia 032105, visa number V619<00309C K4551 W303DU; (b) a copy of version 2 of Document for Travel to Australia 032105, visa number V619<00309C K4551 W303DU; (c) a copy of Ms Fard's written submissions dated 14 July 2015 in the AAT; (d) a copy of AAT Direction dated 16 July 2015; (e) a copy of AAT Direction dated 10 August 2015; and (f) copies of what was described as "new evidence received from Embassy of the Islamic Republic of Iran the Applicant requests the Court to receive on appeal (Rule 36.57)". 40 Ms Fard's instructing solicitor, Christopher Blishen from Arnell & Cooper Lawyers Pty Limited, swore an affidavit dated 31 March 2016 in support of the first interlocutory application. Mr Blishen deposed that, on 31 March 2016, Ms Fard provided him with copies of two email letters with attachments sent by email from the Embassy of the Islamic Republic of Iran. The materials (which are the materials referred to in [39(f)] above and were annexure "CB6" to Mr Blishen's affidavit) totalled 48 pages. The materials included a series of what purported to be original documents in Farsi and English translations thereof. 41 Shortly before the hearing of the "appeal", Mr Blishen informed both the Court Registry and the Department that his client would not press the first interlocutory application insofar as it related to the 48 pages of "new evidence" received from the Iranian Embassy ("CB6" to Mr Blishen's affidavit). This occurred after the Department had refused to admit the authenticity of those documents and had filed an affidavit which annexed correspondence from the Iranian Embassy which questioned the authenticity of the two email letters. 42 The Department opposed the first interlocutory application. 43 Ms Fard relied upon r 36.57(1) of the Federal Court Rules 2011 (the FCRs) in support of her first interlocutory application. That is misconceived. That rule relates to further evidence in the exercise of the Court's appellate jurisdiction. That is of no relevance in circumstances where Ms Fard's "appeal" under s 44 of the AAT Act is a proceeding in the Court's original jurisdiction. One relevant provision concerning further evidence in such a proceeding is r 33.29 of the FCRs, which provides: 33.29 Further evidence on appeal (1) A party may apply for the Court to receive further evidence on appeal. (2) The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following: (a) the facts relating to the grounds of the application; (b) any evidence necessary to establish the grounds of the application; (c) the evidence that the applicant wants the Court to receive; (d) why the evidence was not adduced in the Tribunal. (3) The application and the affidavit must be filed as follows: (a) if the appeal is to the Full Court - 4 copies; (b) if the appeal is to a single Judge - 2 copies. (4) Any other party to the appeal who wants to adduce evidence on the application must file an affidavit at least 14 days before the hearing of the appeal. Note The Court may receive further evidence on an appeal for the purpose of making findings of fact under section 44(7) of the AAT Act. 44 Ms Fard carries the onus of explaining why the evidence which she now seeks to adduce for the first time and rely upon was not reasonably available at the time of the AAT hearing. 45 The general approach to be adopted in considering such an application is reflected in the following observations of Dixon CJ of Greater Wollongong City Council v Cowan [1955] HCA 16; 33 CLR 435 at 444: It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial. 46 As I observed in Comcare v Martin [2015] FCA 4; 148 ALD 312 at [60], it may be that the Court's discretion is actually wider than that reflected in this passage (see Florance v Andrew (1985) 58 ALR 377 at 381 per Lockhart J). 47 Rule 33.29 is not the only source of the Court's power to admit further evidence in an "appeal" from the AAT under s 44 of the AAT Act. Sections 44(7) and (8) of the AAT Act are also relevant. Under s 44(7), the Court is empowered in its discretion to make findings of fact in an "appeal" under s 44 if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i) the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant. 48 Section 44(8) of the AAT Act provides: For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may: (a) have regard to the evidence given in the proceeding before the Tribunal; and (b) receive further evidence. 49 The interrelationship between s 27 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), ss 44(7) and (8) of the AAT Act and r 33.29 of the FCRs was discussed by Katzmann J in P v Child Support Registrar [2015] FCA 116; 324 ALR 109 at [41]-[48]. Her Honour correctly pointed out that s 27 of the FCA Act relates to the power of the Court to receive further evidence on an appeal in the Court's appellate jurisdiction, as opposed to an appeal under s 44 of the AAT Act, which is heard in the Court's original jurisdiction. Her Honour made the following relevant observations at [44]-[48]: 44 Section 27 of the FCA Act provides that the Court may receive further evidence on an appeal. But as s 27 is concerned with appeals in the appellate jurisdiction of the Court; it is to be found in Div 2 of Pt III of the Act, which is entitled "[a]ppellate and related jurisdiction (civil proceedings)". The appellate jurisdiction is defined in s 24. That definition does not include appeals from the AAT. Although this is an appeal, it is heard in the original jurisdiction of the Court. Accordingly, s 27 has no bearing on this application. 45 Rule 33.29 of the Federal Court Rules does relate to appeals from the AAT and appears in that part of the Rules which deals with matters in the original jurisdiction. Subrule 33.29(1) states that a party may apply for the Court to receive further evidence on appeal. The rest of the rule is concerned with the mechanics involved in the making of the application. In my respectful opinion, r 33.29 must be read with s 44 and is intended to apply in circumstances in which the AAT Act contemplates that further evidence could be received in an appeal. If there were any doubt about that, it seems to me that it is removed by the note to the rule, which reads: The Court may receive further evidence on an appeal for the purpose of making findings of fact under section 44(7) of the AAT Act. 46 Still, s 44(8) is not the sole source of power to admit further evidence in an AAT appeal. 47 Subsections (7) and (8) were added to s 44 by the Administrative Appeals Tribunal (Amendment) Act 2005 (Cth), which relevantly commenced on 16 May 2005. Before then, the Court had considered that further evidence could be admitted on an appeal, albeit in limited circumstances. In Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1979) 37 FLR 457 at 458-9 Franki J (Brennan J agreeing at 483) said: In general a question of law arises after the determination of any necessary facts and the nature of the question of law usually depends upon the facts as determined … it seems that only in the most unusual circumstances, if at all, would this Court be justified in admitting fresh evidence. I take this view notwithstanding that the application to his Court, although loosely called an appeal, is an application in the original jurisdiction of the court. 48 In Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 at [20] the Full Court said that there was "a limited scope for the reception of further evidence" in a s 44 appeal "where that evidence tends to prove that the specified question of law should, for a reason given in a specified ground of appeal, be answered in a way that entitles or, as the case may be, disentitles an applicant to the orders sought". The Court went on to explain: The further evidence must, as the Full Court observed in Phillips's case [Phillips v Commissioner for Superannuation [2005] FCAFC 2], have a tendency, if admitted, to demonstrate an error of law. If, for example, the power of an administrative decision-maker or the tribunal sitting in place of that person was, on the true construction of the legislation conferring that power, only exercisable if a particular jurisdictional fact existed, further evidence which showed that the fact did or did not exist might be admitted on the hearing of a s 44 appeal in the exercise of a judicial discretion … In contrast, further evidence which touched on a matter of evaluative judgment on the factual merits of a claim would not be admissible, save perhaps exceptionally for the very limited purpose of underscoring why it was that, in the event that a question of law were answered as an applicant contended, a remitter of the matter to the tribunal for rehearing would not be an exercise in futility. 50 It is important to note that the Court's power to make findings of fact under s 44(7) of the AAT Act does not extend to making findings of fact which are inconsistent with findings of fact made by the AAT, apart from findings made by the AAT as the result of an error of law. 51 Putting to one side the 48 pages of "fresh evidence" which was not pressed in the first interlocutory application, Mr Wrenn (who appeared for Ms Fard) did not dispute that the rest of the material the subject of the first interlocutory application was already included in the Part C Book in the Court proceeding. Accordingly, there was no utility in further admitting those materials into evidence. 52 For these reasons, the first interlocutory application was dismissed, with costs.

(b) The second interlocutory application 53 By an interlocutory application filed on 8 April 2016, Ms Fard sought orders which she described as "directions in relation to the management, conduct and hearing of the appeal under Rule 36.11(f)(sic) of the Federal Court Rules 2011". In particular, she sought directions that: (a) on or before 4pm on Friday, 15 April 2016 (i.e. the last business day before the proposed substantive hearing), the Department provide the Court and Ms Fard with information and matter containing the full meaning and criteria of the visa codes K4551 and K4552, as they applied from 1984 to 1990 inclusively; (b) the Court hear and determine this interlocutory application under r 36.57(1) of the FCRs; and (c) the Registrar uplift and provide 12 exhibits from Fard at first instance which are the subject of the first interlocutory application. 54 Mr Blishen swore a brief affidavit dated 8 April 2016 in support of the second interlocutory application. He submitted that the orders were necessary "for the good management, conduct and hearing of the appeal, as it will take a period of time to obtain the exhibits in the Federal Court matter VID 88/2011 from the Federal Court in Melbourne and make them available to this Court on 18 April 2016". He offered no explanation as to the belated timing of the second interlocutory application. Nor did he offer any explanation as to why Ms Fard had not retained copies of the exhibits which were adduced in Fard at first instance. 55 The Department opposed the second interlocutory application. It emphasised that the second interlocutory application and supporting affidavit which, although filed by Ms Fard on 8 April 2016, were not served on it and it only became aware of the second interlocutory application when the Registry provided it with a copy of the documents on the afternoon of Wednesday, 13 April 2016. 56 Rule 36.11(f) (sic), the rule specified in the second interlocutory application, is to be found in Pt 36 of the FCRs, which relates to appeals (being proceedings which arise in the Court's appellate jurisdiction). The Court's appellate jurisdiction is the subject of Pt III Div 2 of the FCA Act. The Court's original jurisdiction is dealt with in Pt III Div 1 of the FCA Act. Rule 36.11(1) provides that a party may apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of an appeal. Without limiting that sub-rule, r 36.11(2)(f) provides that a party may apply to the Court for an order making an interlocutory order pending, or after, the determination of an appeal to the Court. 57 These particular rules have nothing to do with this proceeding which, although described in s 44 of the AAT Act as an "appeal", is a proceeding which arises in the Court's original jurisdiction. That is not to deny the Court has the power, in an appropriate case, to make the orders or directions sought by Ms Fard in the second interlocutory application. It plainly does. The Court's power to make directions in matters arising in its original jurisdiction, as opposed to its appellate jurisdiction, are to be found in Pt 5 of the FCRs. Rule 5.04 empowers the Court to make directions for the management, conduct and hearing of the proceeding. Rule 5.07 requires a party who wants to obtain an interlocutory order to make an application in accordance with r 17.01. Pt 17 of the FCRs deal with interlocutory applications generally. 58 The information and evidence the subject of Ms Fard's second interlocutory application was not in evidence before the AAT. 59 It was evident that Ms Fard's objective in seeking the Court to make the orders set out in her second interlocutory application was to provide an evidentiary foundation for the Court to make the findings of fact under s 44(7) of the AAT Act which were set out in the amended notice of appeal (see [34] above). As emphasised above, the Court's power to make such findings in an "appeal" under s 44 does not extend to making findings which are inconsistent with findings of fact made by the AAT (apart from findings made by the AAT as the result of an error of law). I was not persuaded that Ms Fard had demonstrated that the exception to the Court's limited power to make inconsistent findings of fact applied in this case (see further below concerning Ms Fard's substantive "appeal"). 60 As noted above, the second interlocutory application also sought an order compelling the Court Registrar to uplift and provide various exhibits which were before the Court in Fard at first instance but were not before the AAT. Mr Wrenn confirmed that he intended to tender that material in support of Ms Fard's appeal. No satisfactory explanation was provided as to why these materials were not put in evidence in the AAT below. Plainly they were available at that time because they had been admitted into evidence in the earlier proceeding in Fard at first instance. Furthermore, Ms Fard's intention was to have the Court rely upon this evidence in making the findings of fact sought by her which are inconsistent with the findings of fact in the AAT. As noted above, this is impermissible unless Ms Fard is able to demonstrate that the finding of facts by the Tribunal resulted from an error of law, which she failed to do. As the High Court observed in Osland v Secretary of Justice (No 2) [2010] HCA 24; 241 CLR 320 at [19] in relation to s 148 of the Victorian Civil and Administrative Appeals Tribunal Act 1998 (Vic): The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise. That feature of s 148 resembles s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the Commonwealth AAT Act'), which defines the analogous jurisdiction of the Federal Court to hear appeals on questions of law against decisions of the Administrative Appeals Tribunal (AAT). Under s 44(4) of the Commonwealth AAT Act, the Federal Court, in determining an appeal, may "make such order as it thinks appropriate by reason of its decision". But wide as that power may be, the Court "should not usurp the fact-finding function of the AAT". Those observations turn upon the text of s 44. They do not depend upon the separation of judicial and executive powers, which limits the functions that can be conferred upon federal courts. They have application to the jurisdiction conferred upon the Court of Appeal by s 148 of the VCAT Act, which is, in concept and in terms, modelled on, although not identical to, s 44. 61 Allowance must be made for the express terms of s 44(7) of the AAT Act, but, as I have explained above, this provision did not assist Ms Fard's attempt to have the exhibits in the previous proceeding in the Federal Court adduced in evidence in this proceeding. Accordingly, this material was rejected. 62 For these reasons, the second interlocutory application was dismissed, with costs.

(a) Ms Fard's submissions outlined 63 In her outline of written submissions, Ms Fard submitted that, despite the wording of the questions of law in the notice of appeal, her essential case was that she was denied procedural fairness. She placed reliance on the fact that the AAT had made a direction on 16 July 2015 requiring the Department to disclose to the AAT and to her "information and matter containing the full meaning and criteria of the Visa Codes K4551 and K4552 as they applied from 1984 to 1990 inclusive" and this did not occur, resulting in the AAT dismissing the application without that evidence. She explained that the information related to the validity of the travel document to Australia issued on 11 December 1989 which contained visa number V619<00309C K4551 W303DU. She submitted that a question of law remained as to whether the Department should disclose to the Tribunal/Court and to her that information as directed on 16 July 2015. It was also submitted that the Tribunal's analysis of the "fresh evidence" was flawed because no consideration was given to the information the subject of the AAT's direction. 64 Ms Fard also contended that the AAT should have referred the decision under review to the Court under s 45 of the AAT Act or, alternatively, proceeded to a full hearing of the matter and not dismiss the case summarily. 65 In his oral submissions, Mr Wrenn clarified that Ms Fard's complaint concerning the Department's non-compliance with the directions made on 16 July 2015 related to its failure to provide a "response" as referred to in paragraph 1 of those directions. He said that the complaint did not relate to paragraph 3(a), which he acknowledged was subsequently vacated.

(b) Department's submissions summarised 66 The Department contended that the "questions of law" set out in the notice of appeal could not support Ms Fard's claim for relief. It might be noted that the Department did not press a notice of objection to competency dated 27 November 2015 which asserted that Ms Fard's notice of appeal did not properly articulate the precise questions of law arising from the AAT's decision as required by r 33.12(2)(b) of the FCRs. The Department explained that it did not press the matter in the light of the Full Court's decision in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315. 67 In response to Ms Fard's reliance upon the AAT's direction dated 16 July 2015, the Department emphasised that insofar as those directions required the Department to file an affidavit which addressed the visa codes, this particular direction was vacated on 10 August 2015. As to the alleged non-compliance with paragraph 1 of those directions, Mr Davidson (who appeared for the Department) submitted that the Department's email dated 22 July 2015 (see [15] above), constituted that "response". 68 The Department submitted that Ms Fard had been given an appropriate opportunity to be heard not only in respect of the various directions made by the AAT, but also specifically on the question whether her application for review should be dismissed summarily under s 42B of the AAT Act. Accordingly, there was no denial of procedural fairness. 69 The Department also submitted that there was no substance in any of the other "questions of law" in the original notice of appeal. 70 As to Ms Fard's third question of law, the Department said that it was baseless because the AAT did give adequate consideration to the "fresh evidence" which was before the AAT and any attempt to place that material before this Court would amount to an impermissible merits review of the AAT's decision. 71 On the issue whether the AAT erred in not referring a question of law to the Court, the Department contended that there was no obligation to do so and the AAT's decision not to refer a question was defensible and was accompanied by an intelligible justification.

Consideration 72 As was emphasised in the written outline of submissions which was prepared on Ms Fard's behalf and confirmed by Mr Wrenn in his oral submissions, Ms Fard's fundamental complaint was that she was denied procedural fairness in the process of the AAT making its decision and that there had been a "miscarriage of justice as a consequence". Ms Fard relied upon the "totality" of the errors identified in the various questions of law set out in the notice of appeal in support of her claims of procedural unfairness. For the following reasons, I am not persuaded that there was any procedural unfairness, nor has Ms Fard made good any of the other so-called "questions of law" (as set out in [33] above) in the amended notice of appeal. 73 First, the Department's failure to provide information or material concerning the meaning of visa codes K4551 and K4552 did not give rise to procedural unfairness. That is because: (a) I am not satisfied that the Department failed to comply with paragraph 1 of the directions made on 16 July 2015, which direction formed the basis for Ms Fard's complaint of procedural unfairness relating to the visa codes. I accept the Department's submission that its letter dated 22 July 2015 (see [15] above) constituted a "response" within the meaning of that direction. That response included a statement that the Department would provide information regarding the details of the relevant visa codes in an affidavit consistently with paragraph 3 of the 16 July 2015 directions. This particular direction was subsequently vacated by the senior member on 10 August 2015, which relieved the Department of the requirement to provide such an affidavit. Ms Fard was given an appropriate opportunity to be heard on these matters. Her opposition to vacating paragraph 3 of the directions made on 16 July 2015 was brought to the attention of the AAT prior to the senior member deciding on 10 August 2015 to vacate the direction. (b) As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]: … Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Emphasis added) No practical injustice has been established. The meaning of the relevant visa codes remains unclear but it was open to Ms Fard to take other steps to ascertain that meaning prior to the AAT hearing on 24 September 2015. For example, she could have sought to summons the relevant material in the six week period after the AAT vacated the direction on 10 August 2015. Alternatively, if she was concerned that the AAT may not have regarded such a summons to be relevant, it was open to her to make a request to the Department for that information to be provided to her under relevant provisions of the FOI Act. She did neither of these things. Nor did she seek to challenge the senior member's decision on 10 August 2015 to vacate the earlier direction, as she could have done in this "appeal". 74 The second question of law in the revised notice of appeal states that the AAT's decision was made in the absence of evidence that was withheld by the Department and s 36D(2)(a) of the AAT Act applied. There are two reasons why this claim must be rejected: (a) the reference to the Department withholding evidence is presumably a reference to its failure to explain the visa codes, however, for reasons given above, there was no legal obligation on the Department to do so having regard to the events that occurred and the senior member's decision on 10 August 2015 to vacate paragraph 3(a) of the 16 July 2015 orders; and (b) the reference to s 36D(2)(a) is misconceived. That provision applies where there is a claim of public interest immunity, which is not the case here. The Department declined to provide the explanation because it provided a response on 22 July 2015 as required by paragraph 1 in the directions of 16 July 2015 and its stated intention to provide an affidavit explaining the codes was subsequently overtaken by the AAT's decision on 10 August 2015 to vacate the earlier relevant direction. 75 The third question of law is directed to whether the AAT considered, or adequately considered, the "fresh evidence" put before it by Ms Fard, in conjunction with all the other material before it. This claim is without foundation. Putting to one side the question whether it is appropriate on a s 44 appeal for the Court to consider whether the AAT has given "adequate consideration" to relevant material (which appears to involve a question of fact rather than one of law), it is evident that the senior member did take into account the "fresh evidence" which was annexed to Ms Fard's affidavit dated 21 September 2015. That evidence was described by the senior member in [23] of his reasons for decision. He then explained in [24]-[32] why he was not satisfied that he could make the factual findings required for Ms Fard's application to succeed. Those reasons included the senior member's concerns regarding the provenance of the "fresh evidence", taking into account Gray J's findings in Fard at first instance relating to the fabrication of other documents and his Honour's finding that Ms Fard and Mr Quemars had concocted significant parts of their evidence. Moreover, the senior member found at [30] that, even if the provenance of the "fresh evidence" was "less dubious", for the "fresh evidence" to cast any doubt on the findings of Gray J which resulted from his Honour's review of many documents and several witnesses, he would need to be persuaded that the "fresh evidence" was "indicative of a conspiracy broader that the fabrication of documents". The senior member said that the existence of such a conspiracy was "highly improbable". Furthermore, the senior member reasoned in [31] that, even if there was such a conspiracy and it was demonstrated that some of the documents before the Court were fabricated, "that does not necessarily mean that [Ms Fard] does not have a son named Sohail Lagharifar (or some variant of that spelling)". 76 I am not satisfied that Ms Fard has established any reviewable error in the senior member's reasoning on these matters which would justify this Court's intervention under s 44 of the AAT Act. It is pure speculation as to whether those findings would have been different if information concerning the meaning of the visa codes was before the AAT. I consider that the senior member's conclusions were well open to be made on the basis of the materials before him, including Ms Fard's "fresh evidence". Moreover, Ms Fard has failed to establish any reviewable error relating to the circumstances surrounding the Department's failure to provide information relating to the visa codes. 77 In his oral submissions, Mr Wrenn contended that a power of summary dismissal, such as that contained in s 42B of the AAT Act, needs to be exercised cautiously. He was unable to point to any relevant authority. In the absence of detailed submissions, it is unnecessary to go further than accept Mr Wrenn's contention as expressed by him. Moreover, having regard to the particular terms of s 42B and the fact that the power of summary dismissal is conferred upon a tribunal and not a court of law it is unnecessary to determine the extent to which the High Court's decision in Spencer v The Commonwealth of Australia [2010] HCA 28; 241 CLR 118 applies to s 42B of the AAT Act. Even accepting, however, that the power needs to be exercised cautiously, I am not satisfied that the senior member acted inconsistently with that requirement. 78 The fourth question of law raises similar issues to those concerning the third question of law. It should also be rejected for the reasons given above in respect of third question of law. 79 Ms Fard's fifth question of law claims that the AAT should have referred "the decision" to this Court under s 45 of the AAT Act in order for it to fulfil its obligations under s 2A of the AAT Act. Section 2A provided: 2A Tribunal's objective In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision‑making of the Tribunal. 80 In my view, this provision is properly regarded as aspirational or exhortatory in nature, rather than as a source of directly enforceable rights and obligations. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611, Gummow J at [108] made the following pertinent observations concerning a similar but not identically worded provision in s 420 of the Migration Act 1958 (Cth) with respect to the Refugee Review Tribunal: With respect to the interrelation between s 420 and the statutory ground of review in par (a) of s 476(1), Lindgren J in Sun concluded that the better view was that s 420 did not establish procedures of the kind identified in the later provision. His Honour described s 420 as containing "general exhortatory provisions, the terms of which do not conform to the common understanding of a 'procedure'". This, to his Honour, signified "the steps, more or less precisely identified, which are or may be involved in particular proceedings". In particular, the direction in s 420(1) that the Tribunal pursue the objective of "providing a mechanism of review that is fair, just, economical, informal and quick" did not amount to a requirement that the Tribunal observe a procedure in connection with the making of a particular decision for the purposes of par (a) of s 476(1). 81 The sixth question of law simply asserts that the visa issued on 11 December 1989 in respect of the male Sohyle Lagheyefar is a "false document". On its face, this is not a question of law but rather involves an assertion of fact. The Court has no jurisdiction in respect of such a claim in circumstances where no error of law was identified in respect of the AAT's findings and observations. 82 Finally, the seventh question of law also relies upon an alleged failure by the AAT to fulfil the objective set out in s 2A of the AAT Act. It overlaps with the fifth question of law. I consider that it should be rejected for the reasons I have given above in respect of that earlier question of law. 83 That brings me to Ms Fard's complaint that the AAT erred in not referring a question of law to the Court. There are several reasons why this claim must be rejected. The first is that it is not raised in the amended notice of appeal. It is true that the matter is briefly mentioned in the outline of written submissions dated 22 March 2016 which were filed on Ms Fard's behalf, but the claim was not addressed or developed at all in Mr Wrenn's oral submissions. 84 Secondly, the question of law which it is claimed ought to have been referred to this Court was never adequately or meaningfully identified. 85 Thirdly, and perhaps most important of all, it is plain that s 45 confers a discretion on the AAT whether or not to refer a question of law to the Court. The senior member stated in [39] of his reasons for decision that he did not think that "any questions of law arise in this review that are appropriate to refer to the Federal Court". Ms Fard has failed to identify any reviewable error in the senior member's decision not to exercise the discretion under s 45 of the AAT Act.

Conclusion 86 For these reasons, the amended notice of appeal should be dismissed and Ms Fard ordered to pay the Department's costs. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Victorian Civil and Administrative Appeals Tribunal Act 1998(Vic)

Administrative Appeals Tribunal (Amendment) Act 2005(Cth)

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