Nozohoor Mehrabad and Secretary, Department of Immigration and Border Protection (Freedom of information)
[2015] AATA 790
•9 October 2015
Nozohoor Mehrabad and Secretary, Department of Immigration and Border Protection (Freedom of information) [2015] AATA 790 (9 October 2015)
Division
GENERAL DIVISION
File number
2015/1668
Shahin Dokht Nozohoor Mehrabad
APPLICANT
And
Secretary, Department of Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member
Date 9 October 2015 Place Canberra The application is dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.
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James Popple, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE — whether application has reasonable prospect of success — whether Tribunal bound by findings of Federal Court — whether issue estoppel prevents findings contrary to Federal Court — “fresh evidence” filed by Applicant — whether Tribunal could make findings required for Applicant to succeed — application for review dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2A(c), 33(1)(b), (c), 42B(1)(b), 44(1), 45
Freedom of Information Act 1982, ss 48, 50(1)(b), 51, 61(1)(b)
CASES
Blair v Curran (1939) 62 CLR 464
Commonwealth v Sciacca (1988) 17 FCR 476
Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291
Fard v Minister for Immigration and Border Protection [2013] FCAFC 126
Fard v Minister for Immigration and Border Protection [2014] HCASL 85
Lombardo v Stuart Bros Pty Ltd [1967] 2 NSWR 39
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Proctor and Federal Commissioner of Taxation (2005) 87 ALD 247
Quinn and Australian Postal Corporation (1992) 15 AAR 519
Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300
REASONS FOR DECISION
Dr James Popple, Senior Member
9 October 2015
Summary
The applicant seeks amendment, under the Freedom of Information Act 1982 (the FOI Act), of records of the Department of Immigration and Border Protection (the Department) containing her personal information. She says that that information is incorrect. In separate proceedings, the Federal Court previously made findings of fact about the applicant. A corollary of those findings is that the information in the Department’s records is correct.
Having regard to the Federal Court’s findings and the evidence filed in this review—including “fresh evidence” from the applicant—I dismiss the application for review under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) as it has no reasonable prospect of success.
Background
On 31 December 2013, Ms Shahin Dokht Nozohoor Mehrabad applied to the Department under s 48 of the FOI Act. She sought the amendment of records of the Department containing her personal information.
On 30 January 2014, the Department refused Ms Nozohoor Mehrabad’s request. On 2 March 2014, she sought internal review of that decision. On 7 May 2014, the Department affirmed its earlier decision.
On 2 March 2014, Ms Nozohoor Mehrabad also applied to the Information Commissioner under s 54L of the FOI Act for review of the Department’s decision. On 26 February 2015, the Information Commissioner decided, under s 54W(b), not to undertake that review on the basis that the interests of the administration of the FOI Act made it desirable that the decision be considered by the Tribunal.
On 9 April 2015, Ms Nozohoor Mehrabad applied to the Tribunal, under s 57A(1)(b) of the FOI Act, for review of that decision.
Decision under review
The decision under review is the Department’s internal review decision on 7 May 2014, refusing Ms Nozohoor Mehrabad’s request that it amend its records.
Issues
On 6 August 2015, I conducted a directions hearing in this matter. I directed that both parties file submissions about two issues:
·whether, given the findings of the Federal Court in Fard v Minister for Immigration and Citizenship,[1] upheld by the Full Court in Fard v Minister for Immigration and Border Protection,[2] the Tribunal is able to make the factual findings required for Ms Nozohoor Mehrabad to succeed in this matter; and
·whether the application should be dismissed under s 42B(1)(b) of the AAT Act.
[1] (2013) 140 ALD 291 per Gray J.
[2] [2013] FCAFC 126 per Marshall, Tracey and Murphy JJ.
The parties filed submissions addressing those issues. Ms Nozohoor Mehrabad also filed two affidavits.[3] On 24 September 2015, I conducted a hearing in this matter at which oral submissions were put by each party. Ms Nozohoor Mehrabad asserted that the affidavits included “fresh evidence”, which was not available to the Federal Court, and which demonstrates that documents before the Federal Court were fabricated. At the hearing, I directed that she file further submissions, identifying those parts of the affidavit evidence that, she says, demonstrate that fabrication. She did so on 1 and 2 October 2015. The Department was given the opportunity to file further submissions in response by 6 October 2015. It chose not to.
[3] See [22]–[23] below.
Ms Nozohoor Mehrabad’s application for amendment
Section 48 of the FOI Act provides for the making of applications for amendment. The documents that Ms Nozohoor Mehrabad requested that the Department amend are:
File number [number specified], and any other files in the possession of the Department of Immigration and Border Protection that contain details recording that the Applicant has a son Sohail Laghaifar, born [day month] 1968, or by any other spelling of this name or date of birth, and who subsequently became subject of Australian Citizenship [number specified].[4]
In applying to have the documents amended, she asserted that:
The applicant does not have a son Sohail Laghaifar, born [day month] 1968, and who subsequently became subject of Australian Citizenship [the same number as specified above]. The information is incorrect.
[4] I have redacted some identifying information from quotations in these reasons for decision. That information is not relevant to these reasons.
Section 50 provides that an agency or Minister may amend a record containing personal information if (amongst other requirements) “the information is incomplete, incorrect, out of date or misleading” (s 50(1)(b)). The Department decided that the information in its records about Ms Nozohoor Mehrabad was correct, and refused to amend it.
The Federal Court’s factual findings
In proceedings in the Federal Court, Ms Nozohoor Mehrabad was known as Shahin Dokht Modarreszadeh Esfahani Fard.[5] In Fard v Minister for Immigration and Citizenship, Gray J said:
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.[6]
He added:
Reluctantly, I find 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.[7]
Gray J made his decision on 16 May 2013. On 14 November 2013, that decision was upheld by the Full Court of the Federal Court in Fard v Minister for Immigration and Border Protection.[8] On 13 May 2014, the High Court refused Ms Nozohoor Mehrabad special leave to appeal from the Full Court’s decision.[9]
[5] In her application to the Department on 31 December 2013, Ms Nozohoor Mehrabad gave her name as “Shahin Dokht Modarreszadeh Esfahani Fard” and gave “Shahin Dokht Nozohoor Mehrabad” as another name by which she has been known.
[6] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 318 [95] per Gray J.
[7] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 319 [98] per Gray J.
[8] [2013] FCAFC 126 per Marshall, Tracey and Murphy JJ.
[9] Fard v Minister for Immigration and Border Protection [2014] HCASL 85 per Bell and Gageler JJ. The High Court said (at [5]) that Ms Nozohoor Mehrabad’s submissions “fail to identify any reason to doubt the correctness of the decision of the Full Federal Court” and that “[a]n appeal to this Court would have no prospects of success”.
The Federal Court has found that Ms Nozohoor Mehrabad does have a son named Sohail Laghaifar (or some variant of that spelling). If I am bound to make findings of fact consistent with Gray J’s findings—or if I am not bound, but nonetheless make such findings—then the information in the Department’s records is correct and s 50(1)(b) of the FOI Act does not apply.
Is the Tribunal bound to make findings of fact consistent with the Federal Court’s findings?
I am not bound to make findings of fact consistent with findings previously made by the Tribunal.[10] But, am I bound to make findings of fact consistent with findings previously made by the Federal Court?
[10] Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300 at 305 [27]–[28] per Marshall, Tracey and Flick JJ. See also Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526 per O’Connor P and Barbour SM.
In Blair v Curran, Dixon J of the High Court explained:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion …[11]
He distinguished between res judicata and issue estoppel, and explained that, in the latter:
… for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived.[12]
[11] (1939) 62 CLR 464 at 531 per Dixon J.
[12] (1939) 62 CLR 464 at 532 per Dixon J.
There is some doubt about whether issue estoppel applies to proceedings of the Tribunal.[13] In Minister for Immigration and Ethnic Affairs v Daniele, a majority of the Full Court of the Federal Court said:
Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act. Sub-section 33(1)(b) directing that proceedings should be conducted as far as possible with little formality and technicality and sub-s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine.[14]
[13] See Proctor and Federal Commissioner of Taxation (2005) 87 ALD 247 at 254 [81] per Forgie DP.
[14] (1981) 5 ALD 135 at 139 per Fisher and Lockhart JJ
In Commonwealth v Sciacca, the Full Court of the Federal Court said that what “may now be the more acceptable view” is that issue estoppel is a rule of law, not a rule of evidence. But, the Court said, “that would not conclude the matter … because of the administrative nature of the Tribunal and the provisions of s 33(1)(b)” of the AAT Act.[15]
[15] (1988) 17 FCR 476 at 480 per Bowen CJ, Sheppard and Morling JJ.
The Court held that the respondent in that case was “not precluded by the rule relating to issue estoppel from contending to the contrary of any finding made by [a judge of the Supreme Court of the Australian Capital Territory] on the question of damages”.[16] However, that was because no issue estoppel arose from the judge’s findings.
What he said in his judgment on the question of damages was no more than the expression of opinions for the benefit of an appellate court, should an appeal against his finding on liability succeed. His Honour’s particular findings, if they be described as such, on questions of damage were not relevant, let alone fundamental, to the only issue which he decided. In no sense were they findings in relation to “facts fundamental” to [the judge’s] decision (cf Lombardo [v Stuart Bros Pty Ltd][17]), nor were they findings which his decision “necessarily established as the legal foundation or justification” of his conclusion (cf Blair v Curran …).[18]
[16] (1988) 17 FCR 476 at 480 per Bowen CJ, Sheppard and Morling JJ.
[17] [1967] 2 NSWR 39 at 40 per Walsh JA.
[18] (1988) 17 FCR 476 at 478–479 per Bowen CJ, Sheppard and Morling JJ.
The same is true in this review. Gray J’s findings about Ms Nozohoor Mehrabad’s son were not fundamental to the issue that he decided. He concluded that Ms Nozohoor Mehrabad had no cause of action entitling her to the orders that she sought, but he proceeded to make findings of fact “[i]n case there is some undiscovered basis for the proceeding”.[19] Those findings of fact were not the justification for his conclusion that Ms Nozohoor Mehrabad had no cause of action.
[19] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 294 [12] per Gray J.
So, in my view, the Tribunal is not bound to make findings of fact in this review consistent with Gray J’s finding that Ms Nozohoor Mehrabad has a son named Sohail Laghaifar.
Can the Tribunal make the factual findings required for Ms Nozohoor Mehrabad to succeed?
For Ms Nozohoor Mehrabad’s application for review to succeed, the Tribunal must find that the information in the Department’s records is incomplete, incorrect, out of date or misleading. That would require the Tribunal to find that Ms Nozohoor Mehrabad does not have a son named Sohail Laghaifar.
Ms Nozohoor Mehrabad says that the Tribunal should make such a finding on the basis of “fresh evidence”, which was not available to the Federal Court. She provided this evidence as annexures to an affidavit of hers, dated and filed on 21 September 2015. On that same day, she also filed an affidavit, dated 18 September 2015, of a man who calls himself “the Sovereign Soltan Qeumars Shah Qajar”. I will refer to him as Mr Qeumars, as Gray J did in his reasons for decision.[20] Gray J found that “[i]t is highly probable that Mr Qeumars is the son”—that is, Ms Nozohoor Mehrabad’s son—“whose true name is Sohail Laghaifar”.[21]
[20] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 292 [2] per Gray J.
[21] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 318 [95] per Gray J. See [12] above.
The “fresh evidence” is:
·a statutory declaration dated 27 January 2015 of Ms Nozohoor Mehrabad’s aunt, attaching certificates and travel documents that the aunt says she discovered in an old suitcase in November 2014;
·a statutory declaration dated 11 February 2015 of Ms Nozohoor Mehrabad’s aunt, attaching various documents from the 1980s and asserting that she did not make, sign or post those documents;
·a statutory declaration dated 12 February 2015 of a woman who says that she visited Ms Nozohoor Mehrabad’s aunt’s home in January 2015, and that she and her husband discovered some documents (which are annexed to the affidavit) in a hidden compartment of a briefcase that the aunt showed them;
·a statutory declaration dated 12 February 2015 of that woman’s husband in similar terms, with the same documents annexed; and
·Mr Qeumars’s affidavit, annexing copies of two travel documents, one of which was amongst the documents discovered in the hidden compartment and is also attached to Ms Nozohoor Mehrabad’s affidavit.[22]
Ms Nozohoor Mehrabad says that this evidence demonstrates that some of the documents that were before the Federal Court were tampered with.
[22] There are other annexures to Mr Qeumars’s affidavit: US Government documents from the 1950s, and a “sovereign birth certificate” dated 20 January 1975. I do not think that Ms Nozohoor Mehrabad asserts that they are fresh evidence.
Ms Nozohoor Mehrabad and Mr Qeumars each gave evidence in the Federal Court proceedings. That evidence is summarised at length in Gray J’s reasons for decision. It involves claims of assassination, abduction, death threats, and the fabrication of documents. His Honour commented that “[t]his is the strangest case I have encountered in almost 29 years as a judge”.[23] As he explained, Ms Nozohoor Mehrabad tendered Departmental documents:
… along with evidence intended to demonstrate the falsity of the documents to the extent that they represent that [Ms Nozohoor Mehrabad] has a son who bears the name in question (and sometimes in other respects). The case put on behalf of [Ms Nozohoor Mehrabad] appears to be that documents were falsified deliberately, in order that Mr Qeumars could be brought to Australia, given a false identity, and kept here.[24]
[23] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 292 [1] per Gray J.
[24] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 292 [3] per Gray J.
Ms Nozohoor Mehrabad says that the “fresh evidence” demonstrates that some of the documents that Gray J relied upon were tampered with. She says that, because the Federal Court relied on fabricated documents in making its findings, the Tribunal can and should make different findings: specifically, a finding that Ms Nozohoor Mehrabad does not have a son named Sohail Laghaifar.
In response to my direction,[25] Ms Nozohoor Mehrabad filed submissions identifying those parts of the affidavit evidence that, she says, demonstrate that documents before the Federal Court were fabricated. For example, she says that a travel document found amongst the “fresh evidence” is identical to a document before the Federal Court, except that the photographs attached to each document are of a different person. And she says that a copy of an application form for her husband to migrate to Australia, found amongst the “fresh evidence”, shows signs of having been tampered with because the page of the form giving family details has fax details at the top, with a date of transmission after the date that the form was signed.
[25] See [9] above.
Because of s 33(1)(c) of the AAT Act, I am not bound by the rules of evidence but may inform myself on any matter in such manner as I think appropriate. I am not bound to make findings of fact in this review consistent with Gray J’s findings. Nonetheless, I can take those findings into consideration in this review.
Ms Nozohoor Mehrabad has not had the opportunity to bring witnesses in support of the assertions made in the two affidavits. She argues that the strength of her argument cannot be assessed without a full hearing. However, even if I were to accept the “fresh evidence”, at its highest it could only be said to demonstrate that there exist documents that are similar to documents that were before the Federal Court, and that those documents or the documents before the Court (or both) may have been tampered with.
Noting Gray J’s finding that “[Ms Nozohoor Mehrabad] and Mr Qeumars have concocted significant parts of their evidence” before the Federal Court,[26] I think it likely that the “fresh evidence” has also been concocted for the purposes of this review. I think it highly improbable that for years, and unknown to Ms Nozohoor Mehrabad or her aunt, these documents were in an old case[27] in the aunt’s possession. I think it especially improbable that the documents in the hidden compartment were discovered only after two visitors to the aunt’s home were invited to inspect the case.
[26] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 319 [98] per Gray J. See [12] above.
[27] It is not clear whether there were two cases (a suitcase and a briefcase with a hidden compartment) or one case (with a hidden compartment). Nothing turns on this.
Even if the provenance of the “fresh evidence” were less dubious, I note that Gray J made his findings on the basis of many documents, and the evidence of several witnesses, after 11 days of hearing. For the “fresh evidence” to cast any doubt on those findings, it would have to be indicative of a conspiracy broader than the fabrication of documents. The existence of such a conspiracy is highly improbable.
And, even if there were such a conspiracy, and some of the documents before the Federal Court were fabricated, that does not necessarily mean that Ms Nozohoor Mehrabad does not have a son named Sohail Laghaifar (or some variant of that spelling).
It follows that I do not think that the Tribunal could make the factual findings required for Ms Nozohoor Mehrabad’s application for review to succeed. I have come to that conclusion noting that, because of s 61(1)(b) of the FOI Act, the Department has the onus of establishing that its decision was justified. I have also had regard to the requirement, in s 2A(c) of the AAT Act, that the Tribunal pursue the objective of providing a mechanism of review that is proportionate to the importance and complexity of the matter.
Should the application be dismissed under s 42B(1)(b) of the AAT Act?
Section 42B(1)(b) of the AAT Act provides that 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 has no reasonable prospect of success.
I have already concluded that the Tribunal could not make the factual findings required for Ms Nozohoor Mehrabad’s application to succeed. Furthermore, having regard to Gray J’s findings and the evidence that Ms Nozohoor Mehrabad has filed in this review, I think it highly probable that Ms Nozohoor Mehrabad does have a son named Sohail Laghaifar.
It follows that the Department’s records are not incomplete, incorrect, out of date or misleading. Section 50(1)(b) of the FOI Act does not apply to those records. The Department was entitled to refuse Ms Nozohoor Mehrabad’s request that it amend its records. I am satisfied that Ms Nozohoor Mehrabad’s application for review of that decision has no reasonable prospect of success. Ms Nozohoor Mehrabad’s application should be dismissed.
Annotation of the Department’s records
I note that sections 51(1) and (2) of the FOI Act provide:
51 Annotations of records etc. following unsuccessful applications for amendments of records
(1)Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c) [which is about applications for annotation]; and
(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2)Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
In its reasons for its internal review decision on 7 May 2014, the Department confirmed to Ms Nozohoor Mehrabad that her “claimed family composition” had been noted on its records. If Ms Nozohoor Mehrabad is not satisfied with that annotation, it is open to her to provide a statement to the Department that could be used as an alternative annotation.
Referral of a question of law
In her submissions, Ms Nozohoor Mehrabad requested that the Tribunal refer a number of questions of law to the Federal Court. Those questions include whether the “fresh evidence” should be admitted, and whether it should be reviewed by the Court.
Under s 45 of the AAT Act, I may, with the agreement of the President of the Tribunal, refer a question of law arising in a proceeding before the Tribunal to the Federal Court for decision. I do not think any questions of law arise in this review that are appropriate to refer to the Federal Court. I note that, under s 44(1), either party to this review may appeal to the Federal Court, on a question of law, from this decision.
Mr Qeumars’s application to be made a party
In his affidavit and in correspondence after the hearing, Mr Qeumars applied to be made a party to these proceedings under s 30(1A) of the AAT Act.[28] If, as Gray J thought highly probable, Mr Qeumars is Sohail Laghaifar and Ms Nozohoor Mehrabad’s son,[29] then he is a person whose interests are affected by the reviewable decision. However, as I have decided to dismiss Ms Nozohoor Mehrabad’s application, I do not need to consider whether to exercise my discretion under s 30(1A) and make Mr Qeumars a party to this review.
[28] See also FOI Act, s 60(3).
[29] Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 at 318 [95] per Gray J. See [12] above.
Conclusion
The Tribunal is not bound to make findings of fact in this review consistent with findings made by the Federal Court. Nonetheless, I can take the Court’s findings into consideration.
For Ms Nozohoor Mehrabad’s application for review to succeed, the Tribunal would have to find that she does not have a son named Sohail Laghaifar. Having regard to Gray J’s findings and the evidence filed in this review—and even if the “fresh evidence” were accepted—it is highly probable that Ms Nozohoor Mehrabad does have a son named Sohail Laghaifar.
So, the Tribunal could not find that the Department’s records are incomplete, incorrect, out of date or misleading. Ms Nozohoor Mehrabad’s application has no reasonable prospect of success. Her application should be dismissed.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple ...............................[sgd].........................................
Associate
Dated 9 October 2015
Date of hearing 24 September 2015 Date final submissions received 6 October 2015 Counsel for the Applicant Mr Andrew Wrenn Counsel for the Respondent Ms Elena Arduca Solicitors for the Respondent Australian Government Solicitor
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