Qajar v Australian Human Rights Commission

That amended originating application sought judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA) and, alternatively, pursuant to s 39B of the Judiciary Act 1903 (Cth) of the decision to cease inquiries into a complaint made by the applicant to the Australian Human Rights Commission as per s 20(2)(c)(iib) of the Australian Human Rights Commission Act 1986 (Cth).

The amended originating application included the following grounds of the application:

On 23 November 2021, the Commission filed a submitting notice in this matter.

By way of the applicant’s draft further amended originating application (Draft Further Amended Originating Application), he seeks to include a ground additional to those above, and which itself contains five further propositions, as follows:

At the hearing, the applicant raised two new questions, namely:

As the Ministers submitted orally, these issues had not been raised prior to the hearing, and therefore they had had no notice of them. On that basis, the applicant was not granted leave to raise them at the hearing. However, I observe that had leave been granted, the evidence before the Court does not prove the allegations on which these new issues are based.

Though the matter has been on foot since September 2021, the final hearing of the matter has been substantially delayed in view of the following:

On 1 July 2025 the applicant filed a notice of a constitutional matter under s 78B of the Judiciary Act and then on 8 August 2025 he filed a draft amended notice of a constitutional matter (Draft Amended Constitutional Notice). The Draft Amended Constitutional Notice was said to raise the following questions “under the Constitution, its interpretation and laws made by the Parliament”, which mirrored those in the Draft Further Amended Originating Application (above at [7]):

The draft amended Notice of a Constitutional Matter also raised the following further question:

None of the Attorneys-General sought to intervene.

The applicant is a litigant in person. Throughout the course of this matter, it has become clear that the applicant has struggled to understand various aspects of the proceeding, despite the Court’s repeated explanations to him. Additionally, the Court has received medical certificates which refer to the potential difficulties that the applicant may have in conducting the proceeding. They refer to the applicant having been diagnosed with Bell’s Palsy which affects his hearing and his ability to enunciate words, as well as him being unable to see well and experiencing a lack of concentration.

The Court has assisted the applicant by:

This included the following measures taken at the final hearing of this matter:

At the final hearing of this matter, the applicant also appeared to be confused about how his affidavit material would come before the Court. The applicant appeared to think that the material contained in his affidavits “ha[d] not been admitted to the Court” because he had not “take[n] the stand in the witness box”. Further, he considered that this would enable the “respondents [to] have any questions that want to be clarified to the Court”. I explained to the applicant that he did not need to “go into the witness box to get that evidence … admitted into Court”, but that he did need to inform the Court which affidavits he was relying on. In response, the applicant stated that the “rel[ied] on all his affidavits”. Further, for the applicant’s benefit I noted that the second respondent had not made any application to cross-examine the applicant, which the second respondent’s counsel confirmed at the hearing.

The applicant also appeared to take issue with the fact that the second and third respondents had “not provided any evidence to the Court”, despite them making submissions in this proceeding. The applicant asserted that the respondents made “a serious accusation against [him] to override [his] right”, and could not do so without evidence, implying that the respondents were required to “rely on evidence” in the event that they made submissions in this proceeding. In that context he accused the Ministers of creating a false identity which they ascribed to him without any evidential foundation. I explained to the applicant that as this proceeding was his application, he was required to “convince [the Court] of the matters … raised in [the] originating application”. I also explained that his affidavits were to be “read”, so the issue in relation to the evidence in the proceeding was as to the weight that I decided should be attached to the contents of these affidavits.

The applicant listed the following affidavits and submissions as those he relied on:

For completeness, I note that the Court has had regard to the following additional material which may be relevant to the present issues, but to which the applicant may have omitted to refer:

It is also worth noting that the material relied on by the applicant was somewhat prolix, and it was unclear how portions of the material related to the issues agitated in this proceeding. The applicant’s affidavits and submissions demonstrated that the applicant did not appreciate the distinction between evidence and submissions. Given the applicant’s difficulties, as referred to above, I have considered his material fully without relying on technical distinctions for example where submissions have been contained in affidavits.

The applicant asserted that:

In view of the above, the applicant requested the following:

The “Islamic Court Order” was contained in a document lodged with the Court on 28 October 2025 as a “Draft Document”, which I gave the applicant leave to file at the hearing. The “Islamic Court Order” provided as follows:

The applicant made similar oral submissions, with no evidential basis, relating to the Ministers “deceiving the Court”. He referred to “the mastermind to what they created”, presumably in reference to the dispute about the applicant’s true identity.

The applicant made no specific applications in relation to the Ministers’ counsel or solicitors either before or during the final hearing of this matter. The applicant’s position in that regard was that he could not make what he described as a “hearsay application”; he had put the Ministers’ representatives on notice, and they had failed to provide a written response. On that basis the issues referred to in paragraphs [21] – [25] were not pressed further.

In light of the assertions made by the applicant, I record that there was absolutely nothing before the Court suggestive of any impropriety whatsoever by the Ministers, or their counsel or solicitors.

The applicant states that he is the Sovereign Soltan Qeumars Shah Qajar, the Sovereign King of Iran. He was born on 1 January 1969 in Iran. According to the applicant, his coronation occurred in Iran on 20 January 1975. He has, at various times, claimed descent from the following:

The applicant alleges, by way of his affidavit dated 3 September 2021 (the applicant’s first affidavit), that he was “unlawfully brought to Australia” without his consent. He deposes that prior to his arrival in Australia in December 1989, he “was kidnapped, [and] kept for two years in solitary confinement (underground cell (lab))” in an unknown location. He claims to have sustained a variety of injuries, including:

The applicant also deposes that he was “placed under total legal incapacity … until 20 June 2003” as a result of the injuries sustained on 9 January 1993. He states that his capacity was restored after 20 June 2004 on the basis of a medical certificate which was issued on 23 June 2003.

The applicant also deposes in his first affidavit that he “could not read, write or understand English” and learned English “in captivity in Australia”.

The applicant deposes to the following:

The applicant made a complaint to the Commission dated 29 July 2019 (first complaint), in which he alleged that he had been discriminated against on the basis of race, and that his human rights had been breached by a Commonwealth government body.

The Commission responded to the applicant’s first complaint by way of a letter dated 12 August 2019. The Commission did not take action with respect to the applicant’s first complaint because it did not comply with s 46P of the Act: see Qajar v Australian Human Rights Commission [2020] FCCA 356 at [24] – [28].

On 8 April 2020, the Commission informed the applicant that he had provided insufficient detail and that the documents provided were not considered to meet the requirements for making a valid complaint of unlawful discrimination. The applicant sent further documents to the Commission on the same day, which the Commission treated as documents constituting his first complaint and considered as a “purported complaint” together with the documents sent on 29 July 2019.

By letter dated 5 May 2020, the Commission informed the applicant of the difficulties with respect to the discrimination claim, namely that the “‘purported complaint of racial discrimination under the [Racial Discrimination Act 1975 (Cth) (RDA)]’ does not meet the requirements for making a valid complaint under section 46P of the [Act]”. The Commission considered that the applicant had “not provided sufficient details of acts or practices that the Commonwealth [had] engaged in that could reasonably arguably constitute unlawful discrimination” to meet the requirements set out in s 46P of the Act, or under the RDA. The Commission stated that even if the applicant’s complaints are taken at their highest, it was difficult to see how it could be argued that the Commonwealth had engaged in unlawful racial discrimination. In relation to his claims of “unlawful abduction, torture, kidnapping and being held hostage in Australia”, there was “no information to support any involvement by the Commonwealth”. The Commission further considered that his difficulties “experienced obtaining documents to leave Australia and accessing Medicare and other support” related to their being “different views” regarding his visa, residency and citizenship status, as well as government records not matching who the applicant said he was, rather than being grounds of racial discrimination under the RDA.

The Commission concluded that the applicant had not met the requirements of s 46P of the Act, and that it would “not be taking any action” in relation to the purported complaint of racial discrimination.

The applicant filed another complaint (second complaint) with the Commission on 9 July 2020. The second complaint maintained a claim against the Department of Home Affairs, and its predecessors, for alleged breaches of human rights and “discriminat[ion] against me because of my descent”. Relevantly, the applicant’s second complaint states:

The applicant sought the following relief in his second complaint:

The applicant also provided particulars with respect to his claimed loss of income and calculations of that loss which amounted to over one billion dollars.

On 14 August 2020, the Commission accepted the applicant’s second complaint as a “claim alleging a breach of human rights” as per the International Covenant on Civil and Political Rights (ICCPR). However, the delegate also advised the applicant of the following:

The applicant maintained his claims by way of a letter dated 26 August 2020.

A delegate of the President of the Commission made a decision with respect to the applicant’s second complaint on 1 October 2020. The delegate decided that the applicant had failed to meet the requirements for a valid discrimination claim as per s 46P of the Act.

The applicant did not challenge the decision of 1 October 2020.

After continued correspondence between the applicant and the Commission, the Commission sent an email dated 23 November 2020 to the applicant which confirmed that the complaint had been provided to the second respondent and further information had been sought from the second respondent.

The Department of Home Affairs responded to the Commission on 27 January 2021 in the following terms:

The applicant was provided a copy of the above response on 24 February 2021 in an email from the Commission. The applicant sent an email to the Commission on 25 February 2021 in which the applicant claimed that the response contained “false and misleading statements”, concealed “corrupt conduct” and included concealing the location of an underground cell where the applicant claimed he was “held and imprisoned for two years” before being brought to Australia”.

On 18 March 2021, the Commission informed the applicant by email that it intended to make a decision in regards to the second complaint and invited the applicant to, within 14 days, make any further submissions.

The applicant provided to the Minister for the Department of Home Affairs a suite of further documents and answers to questions posed by the delegate in a series of emails dated 31 March 2021 and 1 April 2021.

On 11 August 2021, the delegate of the President of the Commission made the relevant decision. That decision reads as follows:

Section 11 of the Act sets out the functions of the Commission. It relevantly states:

Under s 20(1)(b) of the Act, the Commission is to undertake the functions referred to in s 11(1)(f) when “a complaint is made in writing to the Commission, by or on behalf of one or more persons aggrieved by an act or practice, alleging that the act or practice is inconsistent with or contrary to any human right”.

Under s 20(2) of the Act, “[t]he Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice” if any one of the subparagraphs of s 20(2) is applicable. This includes, under s 20(2)(c)(iib) of the Act where “the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation”. Section 20(2)(c)(iib) was inserted into the Act by the Human Rights Legislation Amendment Act 2017 (Cth) (Amending Act), with the purpose of permitting the Commission to “expeditiously dispose of human rights complaints, including those … where there is no reasonable prospect of the complaint being successfully resolved”: Explanatory Memorandum to the Amending Act at [40].

Although not precisely identified by the applicant in his Draft Further Amended Originating Application, it appears from his written submissions that he seeks judicial review under ss 3 and 5 of the ADJRA and s 39B of the Judiciary Act.

The scope of review of a decision made pursuant to a discretionary power exercised upon a state of satisfaction being reached by the decision-maker is subject to limitations. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [21], Allsop CJ, Besanko and O’Callaghan JJ stated:

In the absence of dishonesty, caprice or arbitrariness on the part of the decision-maker, it is often the case that where a decision-maker has acted upon circumstances which provide the foundation for a rational belief such that a state of satisfaction is reached, even where reasonable minds may differ, it will be difficult to demonstrate that the decision was reached unreasonably: Djokovic at [22] – [27]. See also R v Connell; Ex Parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; 69 CLR 407 at 430 – 431; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118–119; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]–[137]; Federal Commissioner of Taxation v Brian Hatch Timber Co. (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57.

With respect to the legal reasonableness of the decision, the following principles are useful:

There are two issues which this Court must determine:

As noted above at [17], the applicant appeared to rely on all his affidavit material filed in this proceeding. The applicant also relies upon:

The Ministers rely upon their written submissions dated 2 February 2022 and 1 September 2025.

The Court’s power to grant leave to amend is contained in r 8.21(1)(g)(i) of the Federal Court Rules 2011 (Cth) as follows:

Consideration of whether to grant leave to amend an originating application must be undertaken in the context of s 37M of the Federal Court of Australia Act 1976 (Cth): Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 at [125] (Gleeson J). Section 37M(1) provides:

At [127] of Tamaya Resources, Gleeson J summarised the relevant principles set out by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 when considering a grant of leave to amend, as follows:

The onus lies with the party seeking leave to amend: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

The Ministers rely upon [21] – [22] of Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; 176 FCR 66, in which Kenny J made the following observations with respect to an analogue of the relevant rules:

They also cite Medich v Bentley-Smythe Pty Ltd [2010] FCA 494, again with respect to a previous version of the Rules. The statements of Stone J at [7] – [8] are useful:

The Ministers point to Research in Motion and Medich as supporting their proposition that “[w]hile leave to amend should generally be granted, it should not be granted if the proposed amendment is futile, such that the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action”.

In his written submissions dated 6 August 2025, the applicant does not specifically address the relevant legal principles with respect to circumstances in which a party seeks leave to amend their originating application. Instead, the applicant makes a variety of submissions with respect to s 20(2)(c)(iib) of the Act, namely that it:

The applicant in those submissions also raises a “separate question involving interpretation of the Constitution”, and a further question as to whether s 38(a) of the Judiciary Act “excludes the jurisdiction of the Federal Court of Australia in this proceeding on the basis that it involves the Treaty”, presumably referring to the ICCPR. This mirrors the questions raised in the applicant’s constitutional notice (see above at [11] – [12]).

The Ministers oppose leave being granted for the applicant to rely upon his Draft Further Amended Originating Application. They do so on the basis that:

I accept the Ministers’ contention that there has been significant and unexplained delay on the part of the applicant in raising the amendments contained within his Draft Further Amended Originating Application. These proceedings were commenced in 2021 and, save for the applicant’s application to the High Court for removal of these proceedings to that Court, the new grounds upon which the applicant seeks to rely have not previously been raised.

I also accept the Ministers’ contentions that the additional grounds contained within the applicant’s Draft Further Amended Originating Application are substantially without merit.

With respect to the applicant’s submission that s 38(a) of the Judiciary Act precludes the Court from deciding this proceeding, insofar as the matter involves the ICCPR, the applicant has proceeded on a misapprehension of the law. Section 38 of the Judiciary Act identifies the jurisdiction of State Courts and the High Court. Section 39B of the Judiciary Act governs the jurisdiction of this Court and confers upon the Federal Court the jurisdiction conferred on the High Court under ss 75(v) or 76(ii) of the Constitution. The Court by this section is empowered to engage in judicial review either by the grant of prerogative writs, or by way of jurisdiction arising under any law made by the Federal Parliament, such as the ADJRA. Consequently, it is clear that this Court has the relevant jurisdiction to determine this matter. The applicant’s argument, therefore, has no merit.

The applicant’s submission that s 20(2)(c)(iib) of the Act is invalid because it is beyond the legislative power of the Commonwealth has no basis in the material before this Court.

The Ministers direct the Court to the Commonwealth’s well-established power under section 51(xxix) to make laws implementing the Commonwealth’s obligations under international treaties. The Ministers refer, inter alia, to Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 at 486 – 487 (Industrial Relations Act Case) in support of the proposition that, by virtue of section 51(xxix), the Commonwealth Parliament may “make a law implementing (whether directly or otherwise) Australia’s obligations under a treaty”. In the Ministers’ submission, section 51(xxix) permits the Commonwealth Parliament “to give effect to Australia’s international obligations under treaties to which Australia is a party where the measure is reasonably capable of being considered appropriate and adapted to fulfilling the obligations (including reasonably apprehended obligations) and benefits of the treaty”.

Section 20(2)(c)(iib) of the Act confers on the Australian Human Rights Commission the power to decide not to continue to inquire into an act or practice if “the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation”. In this context, the Australian Human Rights Commission’s inquiry is directed at an “act or practice that may be inconsistent with or contrary to any human right”: s 11(1)(f) of the Act. “[H]uman rights” is defined to mean “the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised or declared by any relevant international instrument”: s 3 of the Act.

Section 20(2)(c)(iib) of the Act supports the implementation of the Commonwealth’s obligations under the ICCPR, to which it is a signatory, by conferring upon the Commission powers of inquiry, conciliation and reporting in respect of acts or practices that may be inconsistent with any human right. The conferral of these powers under s 11(1)(f) of the Act and related provisions are supported by the Commonwealth’s legislative power under s 51(xxix) of the Constitution.

Section 20(2) of the Act sets out the circumstances in which the Commission may decide not to continue to inquire into the relevant act or practice and, as the Ministers submit, reflects “a legislative judgment as to an appropriate means of giving effect to the ICCPR in domestic law”.

As the Ministers submit, “it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end”: Industrial Relations Act Case at 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Section 20(2)(c)(iib) of the Act clearly reflects the Commonwealth Parliament’s judgment as to how its obligations under the ICCPR are to be implemented.

The applicant’s submission regarding invalidity on the basis that s 20(2)(c)(iib) of the Act is beyond the legislative power of the Commonwealth fails.

The applicant further submits that s 20(2)(c)(iib) conflicts with ss 10A, 11(1)(f), (k), (n) and (p), 20A, 28 and 29(2) of the Act, and serves no purpose in the performance of the Commission’s duties, powers and functions in ss 10A, 11(1)(k), (n) and (p), 20A, 28 and 29(2) of the Act.

The Ministers refer this Court to the judgments of Gordon J in Brown v Tasmania [2017] HCA 43; 261 CLR 328 at [449] and Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; 274 CLR 325 at [18], among other authorities, in support of their submission that “[i]nconsistency between provisions within legislation does not result in the invalidity of one or other of those provisions; it involves a question of construction as to the statutory meaning”. Although partially in dissent in Sunland, the statement of principle articulated by Gordon J was not in doubt.

The Ministers also rightly direct this Court to Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414 as authority for the proposition that “a Court should not readily determine that a provision ‘serves no purpose’” (emphasis omitted). In Baume, Griffith CJ at 414 set out the well-established rule of statutory construction that courts should strive to interpret a statute such that “no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.

As these cases make clear the mere posited uncertainty of s 20(2)(c)(iib) or inconsistency between it and other provisions of the Act, which the applicant has not particularised, does not render the section invalid. On this basis alone, the applicant’s submission fails.

Additionally, even if inconsistency or uncertainty spelled legal invalidity, the applicant’s submission would fail because s 20(2)(c)(iib) is not inconsistent with the balance of the Act. Since its enactment, the Act has empowered the Commission to cease an inquiry. As set out above, s 20(2)(c)(iib) was introduced by the Amending Act to permit the Commission to dispose of human rights complaints where there is no reasonable prospect of success: Explanatory Memorandum to the Amending Act at [38] – [40].

In that regard the Commission’s power to decide not to continue an inquiry is in harmony with its functions of making inquiries, making reports and preparing guidelines in relation to any act or practice that may be inconsistent with or contrary to any human right. The text of the Act demonstrates that the Commission’s role is to effect the outcomes contemplated by ss 20A, 28 and 29(2), or exercise its functions under s 11, if such an outcome is feasible. However, the fact that s 20(2)(c)(iib) contemplates that futile cases will render such outcomes pointless does not mean that s 20(2)(c)(iib) is inconsistent with the above-mentioned provisions.

Therefore the applicant’s submission referred to in [82] is also rejected.

The applicant further submits that s 20(2)(c)(iib) “is a legislative and executive usurpation of Commonwealth judicial power that provides for a quasi-judicial function”. The applicant does not particularise this submission beyond an assertion that s 20(2)(c)(iib) allows “a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth) [to] be dismissed without the essential requirements of the curial process and the obligation to act judicially, and offends the Doctrine of Separation of Powers designated by s.71 Chapter III of the Constitution”.

The Ministers rightly refer this Court to Griffith CJ’s statement of principle in Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330 at 357:

I accept the Ministers’ submission that the Commission “was performing an inquiry function in the present case, which is non-judicial in character”. This submission is supported by the text of the Act, which confers on the Commission powers to make reports to the relevant Minister and to make recommendations in relation to acts or practices which, in the Commission’s view, are inconsistent with or contrary to any human right: see ss 20A, 29(2) of the Act. The Ministers rightly point out that the Commission has no power to make binding determinations, and that its power is limited to making recommendations. In these circumstances, the power which the Commission exercises under s 20(2)(c)(iib) is not a “power to give a binding and authoritative decision”: Huddart Parker at 357.

The applicant has not shown how s 20(2)(c)(iib) involves an exercise of judicial power, and his submission fails.

With respect to the applicant’s submission that s 20(2)(c)(iib) “is ultra vires to the Treaty on International Covenant on Civil and Political Rights, Part II Article 2”, the Ministers refer to Minogue v Williams [2000] FCA 125; 60 ALD 366 at [25], in which a Full Court of the Federal Court affirmed the primary judge’s rejection of a submission that “the ICCPR has been incorporated into or has become part of Australian domestic law by reason of its reproduction as a schedule” to the Act, then known as the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

I accept the Ministers’ submission that “the provisions in the ICCPR have not been incorporated into or become part of domestic law by reason of their reproduction in the Act”. The ICCPR does not create justiciable rights for individuals, and there is therefore no basis for the applicant’s submission about purported inconsistency between s 20(2)(c)(iib) and Part II, Article 2 of the ICCPR.

In regard to the applicant’s submission that s 20(2)(c)(iib) is ultra vires “to the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth)”, any alleged inconsistency between s 20(2)(c)(iib) and other parts of the Act is dealt with at [86] – [88].

The applicant’s submission is rejected.

For the reasons that (1) there have been significant unexplained delays by the applicant in seeking to further amend his amended originating application, and (2) the amendments have no reasonable prospect of success, the applicant’s application to further amend his amended originating application is dismissed.

The applicant seeks review of the decision referred to at [1] above pursuant to the ADJRA and, alternatively, to s 39B of the Judiciary Act.

As noted above at [55], the applicant does not appear to identify the precise grounds upon which he seeks judicial review. However, it appears that the applicant relies upon at least ss 5(1)(c), (d), (e), (f), (h), 5(2)(b), and 7(1) of the ADJRA, because he raises, inter alia, the following grounds in his amended originating application:

The applicant’s substantive submissions can be broadly summarised as follows:

As already noted above at [17], the applicant appeared at the final hearing on the assumptions that (1) his evidence was not before the Court if he did not “take the stand in the witness box” and effectively swear to his evidence in open Court, and (2) the respondents were required to disprove his allegations or provide an alternative case or narrative.

Additionally, the applicant’s arguments often went squarely to the merits of the decision before the Commission. The applicant did not appear to understand that judicial review, whether under the ADJRA or the Judiciary Act, is targeted purely at whether the administrative decision-maker has made an error of law. A Court undertaking judicial review cannot remedy a decision simply because it considers the decision to be wrong or flawed, though this may be the indirect effect of a successful application for judicial review. A helpful explanation of this distinction is given by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35 – 36.

The Ministers’ submissions dated 9 February 2022 do not address each of the applicant’s grounds of review in detail. Instead, the Ministers confine their submissions to the issue in this matter, namely the state of satisfaction required by s 20(2)(c)(iib) of the Act that there is “no reasonable prospect” of a matter being settled by conciliation, which is the precondition to the exercise of the discretion contained in that section.

The legal principles relevant to reviewing the reasonableness of the exercise of a discretion conditioned on the decision-maker having reached a state of satisfaction are set out above at [58]. In particular, as the Ministers point out, the “test for unreasonableness is necessarily stringent”: SZVFW at [11]. Legal unreasonableness will not arise “[i]n circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes”: Stretton at [92].

The material before the delegate of the Commission indicated that:

The state of satisfaction required by s 20(2)(c)(iib) of the Act is that there is “no reasonable prospect of the matter being settled by conciliation”. Section 20(2)(c)(iib) of the Act does not require the Commission to determine the underlying issues; rather, it requires the Commission to assess whether, in the context of the parties’ respective positions, there is a reasonable prospect of agreement or settlement. The Commission is not required by s 20(2)(c)(iib) to take into account the applicant’s evidence of his substantive complaints, except insofar as this provides an indication of the parties’ respective positions. Further, as the Ministers submit and the above-cited authorities bear out, the Court cannot purport to review legal unreasonableness so as to descend into the merits of the Commission’s decision.

In these circumstances, the applicant’s arguments in his affidavits and written and oral submissions regarding the alleged factual and evidential bases for his complaint to the Commission, and his legal status as an unlawful non-citizen, are not to the point.

What is relevant is that the applicant and the Ministers held diametrically opposed views regarding the facts supporting the applicant’s complaint. In this context, the Commission’s decision not to make further inquiries into the applicant’s complaint could not be said to be legally unreasonable. Adopting the words of Wigney J in Stretton at [92], the Commission’s decision was “within the range of legally and factually justifiable outcomes”. It was clearly open on the evidence before the delegate of the Commission to conclude that there was no reasonable prospect of a settlement being reached between the applicant and the Ministers.

In this context, the preconditions to the exercise of the discretion under s 20(2)(c)(iib) existed at the time that the Commission made its decision. The exercise of the discretion to cease to inquire into an act or practice necessarily contemplates that the Commission would not consider the applicant’s substantive claims. This would put an end to whatever opportunity the applicant might assert he should have been granted “to have the substantive complaint and supporting evidence brought to the attention of the Minister” under ss 11(1)(k), 20A and 29(2) of the Act, and then subsequently tabled in Parliament under s 46 of the Act.

As noted already, the applicant’s submissions regarding the evidentiary bases of his substantive claims are not relevant to judicial review of the Commission’s decision under s 20(2)(iib), except insofar as his evidence provides an indication of the parties’ respective positions and thus goes to the question of whether the Commission’s that there is “no reasonable prospect of the matter being settled by conciliation” was within the bounds of legal reasonableness.

The applicant’s application for judicial review under the ADJRA fails.

The applicant additionally submits at various points that the respondents have interfered with his rights under the ICCPR and the Act. This also appears to be the basis of the ground of his amended originating application extracted above at [5]1.2. As noted above at [93] – [94], neither the ratification of the ICCPR nor its inclusion as a schedule to the Act have the effect of incorporating the ICCPR into domestic law: Minogue at [25]. The result is that neither the ICCPR nor the Act grants justiciable rights to the applicant permitting him to bring proceedings in this Court for alleged breaches.

Therefore, the applicant’s submissions to the effect that the Ministers’ acts or practices are “inconsistent with”, and “continue to offend against”, the rights and protections contained in the ICCPR, do not advance the applicant’s case.

The applicant additionally applies for review under s 39B of the Judiciary Act and r 31.01 of the Rules regarding matters “which arise out of, relate to or are connected with the same subject matter relevant to the review” sought under the ADJRA. The thrust of the application appears to be that the applicant is being unlawfully detained in Australia, and that the Ministers are required to state the basis for this detention.

As the Ministers rightly submit, the relief sought by the applicant in respect of his alleged unlawful detention and his status as an unlawful non-citizen have nothing to do with the Commission’s decision not to inquire further under s 20(2)(c)(iib) of the Act, and therefore the requirements of rule 31.01 of the Rules are not met.

Further, as the Ministers submit, the orders which the applicant invites this Court to make with respect to his alleged unlawful detention are beyond the Court’s power. I accept the Ministers’ submission that decisions regarding the applicant’s status as an unlawful non-citizen, and the provision of visa and travel documentation, are administrative acts, and “the Court cannot exercise administrative power or undertake merits review”.

Finally, in any event, and even assuming that the applicant has sought relief which is within the Court’s power to grant, the applicant has not provided any evidence that he is currently being detained. The applicant is an Australian citizen and is free to apply for travel documentation. On his own evidence, he has resided in Queensland for many years without constraint. The evidential basis for the applicant’s application for review under s 39B of the Judiciary Act is not established.

For the reasons given above, the applicant’s application for judicial review and his application to further amend his amended originating application should be dismissed with costs.