Qajar v Australian Human Rights Commission
[2020] FCCA 356
•20 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QAJAR v AUSTRALIAN HUMAN RIGHTS COMMISSION | [2020] FCCA 356 |
| Catchwords: HUMAN RIGHTS – Application for summary dismissal – whether reasonable prospects of success. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.3, 46P, 46PD, 46PF, 46PO, 46PP Federal Circuit Court Rules 2001 (Cth), rr.11.01, 13.10(a) Racial Discrimination Act 1975 (Cth), s.9(1) |
| Cases cited: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584 |
| Applicant: | THE SOVEREIGN SOLTAN QEUMARS SHAH QAJAR |
| Respondent: | AUSTRALIAN HUMAN RIGHTS COMMISSION |
| File Number: | BRG 791 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 17 January 2020 |
| Date of Last Submission: | 17 January 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 20 February 2020 |
REPRESENTATION
| The Applicant in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
| Solicitors for the Commonwealth of Australia | Commonwealth of Australia |
ORDERS
The amended application filed on 24 December, 2019 be dismissed pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 791 of 2019
| THE SOVEREIGN SOLTAN QEUMARS SHAH QAJAR |
Applicant
And
| AUSTRALIAN HUMAN RIGHTS COMMISSION |
Respondent
REASONS FOR JUDGMENT
On 11 September, 2019 the applicant commenced these proceedings against the Australian Human Rights Commission. On 24 December, 2019 he filed an amended originating application in which he seeks the following orders:
2. An order declaring that the evidence before the court in this matter demonstrates sufficient grounds to invoke the duty of the Commission to ensure performance of the functions of the Commission in compliance with Sections 10A and 11(1)(aa) and (f) of the Australian Human Rights Commission Act 1986.
3. An order pursuant to Section 46PP of the Australian Human Rights Commission Act 1986 granting an interim injunction to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged;
(b) the rights of the complainant, particularly the right to negotiate by conciliation.
4. An injunction restraining the Australian Government, servants, agents and officers, the Australian Taxation Office, the Attorney-General's Department, the Department of Home Affairs and the Department of Foreign Affairs and Trade, hereinafter referred to as the Commonwealth government bodies, from any act or omission that;
(a) amounts to the unlawful discrimination complained of, or otherwise;
(b) repeats the unlawful discrimination complained of, or otherwise; and
(c) depicts the applicant as having any other identity than his own, The Sovereign Soltan Qeumars Shah Qajar, born 1st January 1969.
5. An order declaring that the Commonwealth government bodies have committed unlawful discrimination.
6. An order directing the Commonwealth government bodies not to repeat or continue such unlawful discrimination.
7. An order requiring the Department of Home Affairs to provide a lawful temporary visa that authorises the applicant's presence in Australia.
8. An order requiring the Department of Home Affairs to provide a document that expunges any responsibility of the applicant for his entry and presence in Australia without a lawful travel document.
9. An order requiring the Commonwealth government bodies to redress any loss or damage suffered by the applicant, including, but not limited to, immediate financial assistance for medical treatments.
The applicant seeks a range of interlocutory orders as well.
On 13 December 2019, the Commonwealth filed an application in a case whereby it seeks the following orders:
1. Pursuant to 11.03(1) of the Federal Circuit Court Rules 2001 (Cth), the Commonwealth of Australia be included as a party to the proceeding.
2. The name of this proceeding be amended to identify the Commonwealth of Australia as the Second Respondent.
3. The proceeding be summarily dismissed.
The applicant has filed five affidavits in which he sets out, amongst other things, his case. Some are lengthy. I have read them all. His complaint is against a broad range of government agencies, from various Ministers and government departments to the respondent in these proceedings.
The background to his claims is summarised in the first few paragraphs of the affidavit he filed at the commencement of these proceedings:
1. I am The Sovereign Soltan Qeumars Shah Qajar, Sovereign King of Iran, Head of Monarchy. I was born in Tehran on 1st January 1969. My Father His Royal Highness Prince Fereydoun ( d.1975) the son of His Imperial Majesty Soltan Alunad Shah Qajar ( d.1930) King of Iran. My Mother the Lady Khadijeh Mosaddegh (d.2003) daughter of Dr. Mohammed Mosaddegh ( d.1967) Prime Minister of Iran and Head of the Government of Iran.
2. The Coronation and Sovereign title "Soltan Qeumars Shah Qajar (Emperor)" The Sovereign King (shahanshah) and the Head of Monarchy occurred on 20 January 1975 in Tehran, Iran.
3. I was abducted and kidnapped in 1987 at 17 years of age. In 1989 tried to escape and was shot in the right thigh, I bled profusely and passed out. About 1989 I was unlawfully transported to Australia, and contrary to the provisions of the International human rights instruments, I am still being illegally and unlawfully detained and held in Australia. For over 30 years I have been subject to deprivation of medical treatments, defamations, and criminal conduct by Australian Government representatives, and so on.
The applicant argues in his various affidavits that he has been the subject of systematic racial discrimination in contravention of the Racial Discrimination Act (Cth) 1975. The submissions made on behalf of the Commonwealth summarise the applicant’s claims against the Commission as follows:
On 29 July 2019, the applicant provided a complaint form to the Commission. In that form, the applicant made a bare claim that he had been discriminated against because of his race. The basis of the complaint is difficult to make sense of, but the substance of it seems to be that:
9.1. the applicant is Sovereign Soltan Qeumars Shah Qajar, Sovereign King of Iran;
9.2. the applicant was abducted and kidnapped in 1987;
9.3. in about 1989 the applicant was unlawfully transported to Australia;
9.4. representatives of Australian Government past and present, knowingly participated in his abduction, torture, kidnapping, unlawful transportation to Australia and his continued unlawful detainment;
9.5. he (and other persons) have made complaints to the Commission about the applicant’s treatment and those complaints have not been satisfactorily resolved. The documents enclosed with the complaint form disclose various other claims about the applicant’s treatment by government agencies. Those claims are similar to those outlined in [9], above, although there is an additional complaint that seems to relate to government agencies recognising the applicant as a man by the name of ‘Sohail Laghaifar’ (who he claims not to be) – see further [14], below.
Joinder
The Commonwealth submits that the correct respondent to these proceedings is the Commonwealth of Australia. The Commonwealth points out that the applicant seeks interim and final relief against various persons, including:
a)the Australian Government; and
b)servants, agents and officers of the Australian Taxation Office, the Attorney-General’s Department, the Department of Home Affairs and the Department of Foreign Affairs and Trade.
It is well accepted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non−party, the non−party is a necessary party and ordinarily must to be joined to those proceedings: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131]. Such a party can be said to be a necessary party to the proceeding for the purposes of rule 11.01 of the Federal Circuit Court Rules 2001 (Cth). Leaving aside questions of whether the Court has jurisdiction or power to make those orders, if orders such as those sought in paragraphs four – nine set out above were made and the Commonwealth was not a party to the proceedings, they would be incapable of enforcement.
I accept the Commonwealth’s submission that the “Australian Government” is not a juridical entity; rather, the legal personality of the Australian state resides in the Commonwealth of Australia. I accept that in circumstances where relief appears to be sought against the Commonwealth of Australia and against non-specified Commonwealth officers, it is appropriate for the Commonwealth to be joined as a party to the proceeding.
As the Commonwealth also points out, in the event the present respondent (the Commission) files a submitting appearance, then to the extent necessary, the Commonwealth will be able to act as contradictor for all purposes in accordance with the principles set out in Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 at [75].
Summary dismissal
The Commonwealth submits that the application should be summarily dismissed for two reasons.
First, the Commonwealth argues that the Court has no jurisdiction to hear the applicant’s amended application because the jurisdiction of the Court to grant relief under s.46PP of the Australian Human Rights Commission Act 1986 (Cth) is predicated upon a valid complaint having been made to the Commissioner under s.46P of that Act. The Commonwealth argues that the complaint in this case is not a valid complaint because it fails to satisfy either s 46P(1A) or (1B) of the Act.
Second, the Commonwealth argues that if the Court finds that it does have jurisdiction, the proceeding should be summarily dismissed on the basis that the applicant has no reasonable prospects of successfully prosecuting the application, the claim is frivolous or vexatious and is otherwise an abuse of process.
In my view the Commonwealth succeeds on the first argument and it is unnecessary to consider the second.
Section 46P of the Act prescribes the requirements of a complaint which may be lodged with the Commission. It is in the following terms:
46P Lodging a complaint
(1) A written complaint may be lodged with the Commission:
(a) alleging:
(i) that one or more acts have been done; or
(ii) that one or more omissions or practices have occurred; and
(b) alleging that those acts, omissions or practices are unlawful discrimination.
Note: Unlawful discrimination is defined in subsection 3(1).
(1A) It must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.
(1B) The complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices.
(2) The complaint may be lodged:
(a) by a person aggrieved by the alleged acts, omissions or practices:
(i) on that person’s own behalf; or
(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or
(b) by 2 or more persons aggrieved by the alleged acts, omissions or practices:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or
(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged acts, omissions or practices.
(3) A person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.
(4) If it appears to the Commission that:
(a) a person wishes to make a complaint under subsection (1); and
(b) the person requires assistance to formulate the complaint or to reduce it to writing;
the Commission must take reasonable steps to provide appropriate assistance to the person.
Subsections 46P(1A) and 46P(1B) were inserted in the Act by the Human Rights Legislation AmendmentAct2017 (Cth).
The Commonwealth submits that the purpose of the amendments was explained in the Explanatory Memorandum to the Human Rights Legislation Amendment Bill 2017 as follows:
Item 27 Subsections 46P(1), (1A) and (1B)
86. Section 46P of the AHRC Act sets out the requirements for lodging a complaint with the Commission. The current section sets a low threshold for lodging a complaint. A bare allegation that unlawful discrimination has occurred—even if it does not contain any particulars of alleged conduct—is sufficient to meet the threshold for lodging a complaint.
87. This item will increase the threshold for lodging complaints with the Commission by replacing the existing requirement under subsection 46P(1) of the AHRC Act.
88. This item sets out the requirements of a complaint. It must be in writing, allege that certain conduct (one or more acts, omissions or practices) has occurred and allege that the conduct is unlawful discrimination.
89. This item also provides that it must be ‘reasonably arguable’ that the alleged conduct is unlawful discrimination. These requirements will ensure that complaints contain more than bare allegations and sufficiently substantiate why alleged conduct is unlawful discrimination. To be a valid complaint under section 46P, a complaint must allege conduct that, if true, would constitute unlawful discrimination.
90. Increasing the threshold for complaints will implement recommendation 9 of the PJCHR report. The PJCHR accepted concerns expressed by submitters and witnesses to the inquiry that the current low threshold encourages lodgement of complaints that are ultimately deemed to be trivial or vexatious.
91. The higher threshold will give the Commission greater discretion to make an initial assessment and dismiss complaints that are unmeritorious at any earlier time. This will help avoid protracted complaints processes.
92. Dealing with unmeritorious complaints is an inefficient use of the time and resources of the complainant and respondent, the Commission, and in some cases, the courts. The anticipated reduction in the volume of complaints the Commission is required to process will allow the Commission to operate more efficiently and reduce the regulatory burden of the AHRC Act.
The Racial Discrimination Act 1975 (Cth) makes discrimination on the grounds of race, colour, descent or national or ethnic origin unlawful: s.9(1) of that Act. Such discrimination is actionable: s.3 of the AHRC Act. There is no dispute that the applicant was able to make a complaint to the Commission about unlawful discrimination under the Racial Discrimination Act.
If there is a complaint on foot, s.46PP of the AHRC Act provides that the Court may grant an interim injunction to maintain:
a)the status quo, as it existed immediately before the complaint was lodged; or
b)the rights of any complainant, respondent or affected person.
The amended application before me, at least in part, is purportedly an application made under s.46PP of the AHRC Act.
That section was considered by the Federal Court in Venerable Dr Peter Carlsson v Right Reverend John Ford [2019] FCA 584. At [28] Besanko J said of the section:
…Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case.
To engage s.46PP then, there must be a complaint lodged with the Commission. A complaint is something lodged with the Commission that meets the requirements of s.46P. The gravamen of that is that the complaint must:
a)be in writing;
b)allege that one or more acts have been done or that one or more omissions or practices have occurred which are reasonably arguable to be unlawful discrimination; and
c)set out, as fully as practicable, the details of the alleged acts, omissions or practices.
If whatever is lodged with the Commission does not answer that description, it is not a complaint. It will not be able to be said that there is a complaint before the commission and the power in s.46PP of the AHRC Act will not be able to be engaged.
On 29 July, 2019 the applicant sent, by email, a completed complaint form to the Commission. The complaint purported to be about “Representatives of the Australian Government As per attachments” and “Representatives of the Australian Human Rights Commission As per attachments”. The complaint alleges that the applicant has been discriminated against because of his race. He also alleged that his human rights have been breached by the Commonwealth Government. No other part of the form is completed. At the end of the form the following appears:
How many breaches of human rights, discriminations, suffering, deprivation of liberty, do the representatives of Australian Human Rights Commission past and present, wish to enjoy from my detainment in Australia? Still unlawfully detained and held hostage in Australia.
I am The Sovereign Soltan Qeumars Shah Qajar, Sovereign King of Iran, Head of Monarchy. I was born in Tehran on 1st January 1969. My Father His Royal Highness Prince Fereydoun (d.1975) the son of His Imperial Majesty Soltan Ahmad Shah Qajar (d.1930) King of Iran. My Mother the Lady Khadijeh Mosaddegh (d.2003) daughter of Dr. Mohammed Mosaddegh (d.1967) Prime Minister of Iran and Head of the Government of Iran.
The Coronation and Sovereign title "Soltan Qeumars Shah Qajar" (Emperor) The Sovereign King (shahanshah) and the Head of Monarchy occurred and proclaimed on 20 January 1975 in Tehran, Iran. Iran Royal Will an absolute Deed of Coronation can be downloaded and viewed via Information into the origin/descent above-mentioned can be downloaded and viewed via was abducted and kidnapped in 1987 at 17 years of age. In 1989 tried to escape and was shot in the right thigh, I bled profusely and passed out. About 1989 unlawfully transported to Australia, and contrary to the provisions of the International human rights instruments, still unlawfully detained and held hostage in Australia. BRIEF DETAILS can be downloaded and viewed via I was abducted and then unlawfully transported to Australia, I could not read, write, understand the English language. I started to learn English in captivity in Australia. It was about mid 1990 I learnt the complete English alphabet. It was about the year 2000, I started writing basic English.
About mid-2000 travelled from Cairns, north Queensland to Sydney, and about August 2000 visited the then Human Rights and Equal Opportunity Commission in Sydney to make a complaint. I verbally stated my complaint about my deprivation and suffering in Australia. I complained that amnesty international office in Queensland did not deal with my complaint concerning unlawful detainment in Australia. As I recall, the Human Rights female officer took notes and I believe she wrote my complaint, whereas, without assistance, I could not write well at that time, and definitely could not type at all at that time. For my identification, I provided copy of my Iranian identification/birth certificate, and the translation of my identification/birth certificate into English made by Migrant Resource Sub-Centre Cairns, dated 5 January 1993. The Human Rights and Equal Opportunity Commission in Sydney did not provide me with file number for my complaint. About a week later, on my second visit to Human Rights and Equal Opportunity Commission in Sydney, I was directed to go back and contact amnesty international in Queensland. After years of waiting, on 8 February 2007, Amnesty International Australia made a response (page 12 below).
In 2004/2005 formal complaints were made by Ms. Adi Erez (page 8 to 11 below) (Human Rights ref: RG/2015302/FC/H) on my behalf to the Human Rights and Equal Opportunity Commission that, because of unlawful detainment in Australia, I do not have visa and am held hostage in Australia. Ms. Adi Erez was kidnapped and harmed by the then Department of Immigration in 2004, unlawfully imprisoned at Brisbane Women's Correctional Centre, for the purpose that the event of my abduction, kidnapping, and the unlawful detainment in Australia stays silent. She made complaint and requested from Human Rights and Equal Opportunity Commission to make public report and disclose my unlawful detainment in Australia to the Parliament House. To this day, the Human Rights Commission failed to deliver public report to be tabled in Parliament.
Another female person "Mrs. Fard" Australia Human Rights Commission ref: 2014-12486 (page 13 below) suffered persecution and breach of her human rights in Australia, as result of my abduction, kidnapping, and the unlawful detainment in Australia. For over 30 years I have been subjected to assassination attempts, criminal conduct by Australian Government's representatives past and present, and deprivation of medical treatments (page 15 below). Hence, officers of Australian Human Rights Commission; the then President of Human Rights Commission; the then Human Rights Commissioner; and the Human Rights Investigation and Conciliation Service in breach of their own charter of Human Rights, prejudicially and with criminal intent, fabricated false and misleading information to coverup the criminal conduct by the representatives of Australian Government past and present, and prevent from becoming known to the citizens of Australia. The representatives of Australian Government past and present, knowingly participated in my abduction, torture, kidnapping, unlawful transportation to Australia and my continued unlawful detainment, in breach of Articles of Australian Human Rights Commission Act 1986.
I am suffering ongoing discrimination, persecution without justification, unlawfully detained in Australia. I request from Australian Human Rights Commission, President, Commissioner, or their legal representatives, by an expeditious way to conciliate my complaint.
Attached to the complaint are a number of documents including correspondence from Amnesty International, a passport application, and extracts from the transcript of some unidentified proceedings in the Queensland Magistrates Court.
In response, an officer of the Commission sent back the following correspondence (on 12 August, 2019):
Dear The Sovereign Soltan Qeumars Shah Qajar
I refer to your recent contact with the Commission.
You advise you are the Sovereign King of Iran. You say that you were abducted and kidnapped in 1987 and taken to Australia in 1989, where you currently reside. You say that you continue to be held hostage in Australia and continue to be subject to 'assassination attempts, criminal conduct by Australian Government's representatives past and present, and deprivation of medical treatments'.
You also raised concerns about the handling of a number of contacts made with the Commission, either by you or in relation to you. You advise:
* In 2000, you contacted the Commission about your concerns, where we referred you back to Amnesty International.
* In 2004/2005, Ms Adi Brez lodged complaints to the Commission on your and her own behalf.
* In 2014, 'Mrs Fard' contacted the Commission, claiming she had 'suffered persecution as a result of your abduction, kidnapping and the unlawful detainment in Australia'.
For your information, the Australian Human Rights Commission has thepower to investigate and conciliate complaints about:
* discrimination because of a person's race, sex, gender identity, sexual orientation, intersex status, pregnancy, marital or relationship status, age or disability as well as sexual harassment in specific areas of public life, such as, employment, education and the provision of goods and services;
* racial hatred that takes place in public;
* discrimination in employment because of a person's criminal record, trade union activity, religion, political opinion or social origin; or
* breaches of human rights by the Commonwealth of Australia.
I appreciate the seriousness of the concerns you raised. Unfortunately, from the information you have provided it is not clear how the Commission's Investigation and Conciliation Section can help you with this matter.
Whilst you claim that representatives of the Australian government 'knowingly participated in your 'abduction, torture, kidnapping, unlawful transportation to Australian and [your] continued unlawful detainment', you have not presented much information to support such a serious claim.
In terms of your concerns about the other approaches to this Commission, I won't be able to comment at this late stage. I also can't comment on claims lodged by other people without their given consent. Just for future purposes, it is always best to raise concerns with the Commission's response at the time.
I can only suggest you seek legal advice about your migration status or current options.
For free legal advice, you can contact:
* Legal Aid office
( Community legal centre
( you have any further queries or wish to provide clarification, please advise-by return email or call our National Information Service n
1300 656 419.
Regards,
The Commission did not treat the applicant’s complaint form as a complaint under s.46P of the AHRC Act. No action was taken upon it. The purported complaint was not referred to the President as is required by s.46PD of the AHRC Act. The President did not deal with the complaint under s.46PF of the AHRC Act.
None of that was surprising because the purported complaint lodged by the applicant with the Commission was not a complaint for the purposes of s.46P or s.46PO of the Act. Whilst the purported complaint was in writing, it did not allege that one or more acts have been done or that one or more omissions or practices have occurred which are reasonably arguable to be unlawful discrimination, let alone racial discrimination. Nor did it set out the details of the alleged acts, omissions or practices said to constitute the unlawful racial discrimination.
I accept the Commonwealth’s argument that the purported complaint made on 29 July, 2019 is not a complaint for the purposes of s.46P the AHRC Act.
On 31 October, 2019 the applicant filed an affidavit in these proceedings which sets out a number of assertions and seeks to provide some particularity about the acts and omissions made by the Commonwealth government bodies upon which he bases his claim for discrimination. None of those, however, are particularised. He also said that in that affidavit that he was prosecuted for driving without a driver’s licence by the Queensland Police Service and in the course of that prosecution he became aware that government documents recorded his name as Sohail Laghaifar. In an affidavit he expresses his belief that he is an unlawful noncitizen in Australia and by these proceedings he seeks to prevent the “Commonwealth government bodies from continuing unlawful discrimination I complained of and/or any act or omission that has the effect and/or purpose of nullifying and impairing my human rights by interfering with the recognition, enjoyment and exercise, on an equal footing, of my fundamental freedoms in the political, economic, social, cultural and public life.”
The evidence in that affidavit even if it was accepted at its highest, however, does not establish that the applicant has suffered unlawful racial discrimination at the hands of the people he has, in a general sense, identified in the affidavit. There is nothing in his evidence that would suggest that the reason he has been unlawfully discriminated against was because of his race.
Moreover, even if it is the case that the applicant’s evidence in that affidavit demonstrated some basis for unlawful discrimination against him on the basis of his race, it does not address the fundamental issue that the complaint made to the Commission was not in fact a complaint because it did not meet the requirements of s.46P of the AHRC Act. In the absence of a proper complaint s.46PP cannot be engaged.
In the absence of a complaint for the purposes of s.46P of the AHRC Act, the present application is bound to fail because s.46PP, upon which it is based, is not engaged.
Conclusion
Because the power in s.46PP of the AHRC Act is not engaged because there was never a complaint for the purposes of s.46P of the AHRC Act made by the applicant, it can properly be said that he has no reasonable prospect of successfully prosecuting the present proceedings, and I so find. I have considered whether the applicant might amend the proceedings so as to regularise them, but in my view he cannot. There is nothing he can do in these proceedings which will regularise the complaint that he made to the Commission. Further, as the Commonwealth points out he cannot pursue other proceedings under the AHRC Act because there has been no termination of any complaint by the president which is required before proceedings can be commenced in this Court.
Accordingly, the application must be dismissed pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 20 February 2020
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