Qajar v Australian Human Rights Commission

BACKGROUND

1. The applicant claims to be the sovereign king of Iran, kidnapped in 1987 and brought to Australia against his will in 1989. He also claims that the identity of a man who he does not know and to whom he has no known connection, a "Sohyle Lagheyefar'" or "Sohail Laghaifar", has been imposed on him. As a result, the applicant considers that he does not hold Australian citizenship and has no visa or travel document to authorise him to enter or remain in Australia. He therefore contends that he is an unlawful non-citizen without liberty to travel, perform work, hold a driver's licence, access benefits, open a bank account, or register a tax file number. He claims that he has been unlawfully and arbitrarily detained since his arrival in 1989 (but does not contend that he is immigration detention) and that he has never applied for Australian citizenship.
2. The second and third respondents, however, contend that the applicant is instead a person by the name of 'Sohail Laghaifar'. On 11 December 1989, a travel document in the name of 'Sohyle Lagheyefar' was issued in Sofia, Bulgaria by Mr Joseph Petyanszki, who was then employed by the second respondent as the Second Secretary (Immigration) in Belgrade. The second and third respondents contend that the applicant then entered Australia using that travel document under a permanent resident visa. On 28 January 1992, preferring the spelling 'Sohail Laghaifar', the applicant purportedly applied for Australian citizenship, which was granted on 19 November 1993. The second and third respondents contend that the applicant currently resides without constraint in Queensland and is not in immigration detention.
3. The procedural history of this matter centres on the applicant's claim that he is an unlawful non-citizen. That claim, in turn,is tied to his assertion that his identity is other than that which is represented on the documentary record. On 9 July 2020, the applicant lodged a complaint with the Australian Human Rights Commission (AHRC) that his rights under art 12 of the International Covenant on Civil and Political Rights had been infringed. On 11 August 2021, a delegate of the President of the AHRC decided not to continue to inquire into the applicant's complaint under s 20(2)(c)(iib) of the Australian Human Rights Commission Act 1986 (Cth), on the basis that the decision-maker was satisfied "that there is no reasonable prospect of the matter being settled by conciliation". [CB72 [1]]
4. On 20 October 2021, the applicant lodged an amended originating application seeking judicial review of the delegate's decision. The applicant also sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth) including a declaration that he is an unlawful non-citizen under the Migration Act 1958 (Cth) (Migration Act) and seeking his release from detention by providing a certificate of identity.
5. The applicant sought leave to issue subpoenas to the second and third respondents in relation to the travel document identifying him as 'Sohyle Lagheyefar' dated 11 December 1989. On 7 March 2022, Thomas J refused leave to issue subpoenas in the substantive hearing and set aside a notice to produce: Qajar v Australian Human Rights Commission [2022] FCA 189. The applicant's application for leave to appeal that decision was dismissed on 11 November 2022: Qajar v Australian Human Rights Commission [2022] FCA 1339. The matter was relisted for a substantive hearing.
6. On 7 February 2023, the applicant lodged two further subpoena requests in relation to the travel document and application for Australian citizenship. These are the requests with which the present appeal is concerned.
7. The first subpoena request was for Mr Petyanszki to give evidence in connection with the issue of the travel document in 1989 on which Mr Petyanszki's name appears. The second subpoena request was directed to the second respondent to produce a range of documents in relation to the applicant's application for Australian citizenship and the grant of citizenship in 1993 (the citizenship documents).
8. The primary judge rejected the subpoena request for filing pursuant to rule 2.27 of the Federal Court Rules 2011 (Cth). A decision of this nature is not susceptible to appeal. However, on 15 February 2023, the applicant was mistakenly advised that the primary judge had "refused leave to issue the requested subpoenas" (emphasis added). On 2 March 2023, the applicant (understandably) sought leave to appeal from the "decision" to reject the filing of the subpoenas, under the misapprehension that the primary judge had in fact refused leave to issue the subpoenas.
9. On 13 March 2023, the applicant lodged an interlocutory application seeking the staying of the substantive proceeding until the determination of the appeal, and an order granting leave to file and serve his application for leave to appeal and supporting affidavit. The primary judge treated the interlocutory application as an application by the applicant for leave to issue the subpoenas and on 6 April 2023 refused leave for the subpoenas to be issued.

LEAVE TO APPEAL: RELEVANT PRINCIPLES

1. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), an appeal cannot be brought from a judgment in s 24(1) that is an interlocutory judgment "unless the Court or a Judge gives leave to appeal". The decision over which leave is sought in the present case is such a judgment.
2. The principles which govern the exercise of discretion to grant leave to appeal are well settled: see e.g. Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ); see also e.g. Ashby v Slipper [2016] FCAFC 63; (2016) 241 FCR 55 at [41] (Mansfield, Siopis and Gilmour JJ)). Relevant considerations include:
3. whether in all the circumstances the decision is attended by sufficient doubt to warrant its reconsideration; and
4. whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
5. As the second and third respondents submit, these considerations "are not in separate compartments, but are cumulative and also bear on each other, so that the degree of doubt which is sufficient in one case may be different from that required in another": Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 at [5] (Bromwich J). As such, the principles in Décor are not rigid, and do not detract from the "unfettered discretion" granted by s 24(1A) of the FCA Act: SZVMQ v Minister for Immigration and Border Protection [2016] FCA 558 at [15] (Katzmann J). They are "not to be applied inflexibly": Ortiz v Minister for Immigration and Border Protection [2015] FCA 427; (2015) 150 ALD 334 at [11] (White J). Other considerations may be relevant. For example, leave to appeal may more readily be granted if "the practical effect of the primary judge's decision is to finally determine the applicant's substantive rights": SZVMQ at [15] (Katzmann J).
6. Finally, in considering whether an appeal would have sufficient merit, it will often be appropriate to consider the proposed grounds of appeal at a "reasonably impressionistic level": see, by analogy, Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [16]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). However, there are other cases in which a closer examination of the merits is appropriate: Tu'uta Katoa at [18]. In this matter, the applicant's proposed grounds of appeal lack any merit on their face, as I explain below. This is not a case where there is a reason to examine the merits of the proposed grounds other than at a reasonably impressionistic level.

1. First, the primary judge refused leave to issue the subpoenas on the ground that the evidence lacked any apparent potential relevance to the orders and declarations sought by the applicant. It was rightly not suggested that the primary judge erred in setting out the test of potential relevance. To the contrary, it is well established that the documents or evidence sought by way of the issue of a subpoena "must have at least some apparent potential relevance to the matters in issue in the litigation": Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 at [8] (French J).
2. Rather, the applicant wishes to contend on appeal that, contrary to the primary judge's decision, the evidence and documents sought by the subpoena requests have apparent potential relevance to the orders and declarations that he seeks, because they have the potential to prove or disprove whether he is an unlawful non-citizen. The applicant further contends that the question of his identity is decisive in his substantive application, including in the orders he seeks pursuant to s 39B of the Judiciary Act.
3. In response, the second and third respondents submit that the primary judge was plainly correct in holding that the question of the applicant's identity has no relevance to the applicant's judicial review application or to the relief he seeks under s 39B of the Judiciary Act and any appeal would therefore lack any reasonable prospects of success. For the reasons set out below, I agree with the second and third respondents and leave to appeal must be refused.
4. First, as the primary judge held (at [33]), the judicial review claim pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) simply turned upon whether the AHRC made a reviewable error in deciding not to continue inquiring into the applicant's complaint under s 20(2)(c)(iib). The statutory question in s 20(2)(c)(iib) is whether the AHRC is satisfied that there is no reasonable prospect of a settlement by conciliation. That question manifestly does not require any determination of substantive issues, such as the applicant's identity.
5. Further, the delegate's state of satisfaction that there was no "reasonable prospect" of a settlement by conciliation was formed on the basis of material that was before the delegate at the time. The evidence sought by the subpoena requests cannot logically bear on whether that state of satisfaction was properly formed by the delegate because it was not before the delegate.
6. Secondly, nor does the evidence sought by the subpoena requests have any apparent potential relevance to the claim for relief under s 39B of the Judiciary Act, which turns on whether the applicant is or is not arbitrarily and unlawfully detained. The applicant claims that he is arbitrarily and unlawfully detained because he is not the Australian citizen by the name of 'Sohail Laghaifar', but instead an unlawful non-citizen. However, regardless of how the applicant identifies himself and what status he considers he has under the Migration Act, on his own case he is not in fact detained, having resided without constraint in Queensland for many years. Further, the second and third respondents accept (contrary to his claims) that he is a citizen and therefore that he is not liable to be placed in immigration detention under the Migration Act and deported. Neither the evidence of Mr Petyanszki nor the citizenship documents which the applicant seeks could therefore logically bear upon that issue.
7. Thirdly, there being no apparent merit in the proposed grounds of appeal, it is clear that the applicant would not suffer substantial injustice if leave were refused. As the second and third respondents submit: There is nothing in the evidence that could be given by a former employee of the second respondent with a tenuous (at best) connection with a single travel document provided over 30 years ago and where there is likely, in the circumstances, to be little if any recollection of other events in relation to that travel document. The citizenship documents have no bearing on whether the applicant is being unlawfully detained [as he alleges].
8. I also note the irony of the declaration which the applicant wishes to pursue on an appeal that he is an unlawful non-citizen, which would, if accepted, mean that, far from being released from (non-existent) detention, there would be a duty under the Migration Act to take him into immigration detention pending his removal.

The request for the second and third respondents to file an affidavit

1. In his submissions, the applicant also sought an order that the second and third respondents show cause by filing an affidavit deposing to the ground or grounds for the detention of the applicant as an unlawful non-citizen in Australia since December 1989. This was not before the primary judge and cannot form part of any appeal.

CONCLUSION

1. For the reasons explained above, the decision of the primary judge is not attended by sufficient doubt to warrant its being reconsidered, and no substantial injustice would result if leave were refused. The application for leave to appeal should therefore be dismissed. The applicant having been wholly unsuccessful in this application, there is no reason why the applicant should not pay the costs of the second and third respondents as agreed or assessed and an order to that effect is therefore appropriate. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.