Qajar v Australian Human Rights Commission

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FEDERAL COURT OF AUSTRALIA

Qajar v Australian Human Rights Commission [2024] FCA 1292  

Appeal from: Application for leave to appeal: Qajar v Australian Human Rights Commission [2023] FCA 314
File number(s): QUD 148 of 2023
Judgment of: PERRY J
Date of judgment: 8 November 2024
Catchwords:  PRACTICE AND PROCEDURE – application for leave to appeal – where primary judgment dismissed application for leave to issue subpoenas – leave to appeal refused  
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Human Rights Commission Act 1986 (Cth) s 20(2)(c)(iib)

Federal Court of Australia Act 1976 (Cth) s 24(1), (1A)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth)

Federal Court Rules 2011 (Cth) r 2.27
Cases cited:

Ashby v Slipper [2016] FCAFC 63; (2016) 241 FCR 55

Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956

Cavar v Greengate Management Services Pty Ltd [2016] FCA 961

Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

Ortiz v Minister for Immigration and Border Protection [2015] FCA 427; (2015) 150 ALD 334

Qajar v Australian Human Rights Commission [2022] FCA 1339

Qajar v Australian Human Rights Commission [2022] FCA 189

Qajar v Australian Human Rights Commission [2023] FCA 314

SZVMQ v Minister for Immigration and Border Protection [2016] FCA 558

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 26
Date of hearing: 1 November 2024
Counsel for the Applicant: The applicant appeared in person
Counsel for the Second Respondent: Mr J Kay Hoyle SC
Solicitor for the Second Respondent: Australian Government Solicitor
Counsel for the Third Respondent: Mr J Kay Hoyle SC
Solicitor for the Third Respondent: Australian Government Solicitor

ORDERS

QUD 148 of 2023
BETWEEN:

THE SOVEREIGN SOLTAN QEUMARS SHAH QAJAR

Applicant
AND:

AUSTRALIAN HUMAN RIGHTS COMMISSION

First Respondent

MINISTER FOR THE DEPARTMENT OF HOME AFFAIRS

Second Respondent

MINISTER FOR FOREIGN AFFAIRS

Third Respondent

ORDER MADE BY:

PERRY J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The applicant has leave to amend the application for leave to appeal by:

(a)substituting for the date “16 February 2023”, the date “6 April 2023” in the first paragraph of the application; and

(b)omitting paragraphs 1 and 2 under the heading “Accompanying Documents”. 

2.Dispensation is granted to the applicant from filing and serving an application for leave to appeal amended in the respects identified in paragraph 1.

3.The application for leave to appeal is taken to be amended in the respects referred to in paragraph 1. 

4.The application for leave to appeal is dismissed.

5.The applicant is to pay the second and third respondents’ costs as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRY J:

1.                 INTRODUCTION

  1. This is…

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Details
Case
[2024] FCA 1292
Decision Date

CaseChat Overview and Summary

In the case of Qajar v Australian Human Rights Commission, the applicant, who claims to be the sovereign king of Iran, was seeking leave to appeal against the refusal of his application for leave to issue subpoenas. The applicant had previously brought an action for judicial review against the decision of a delegate of the Australian Human Rights Commission not to investigate his complaint. The applicant sought various declarations and relief, including a declaration that he was an unlawful non-citizen and a certificate of identity. The primary judge refused the applicant leave to issue subpoenas and set aside a notice to produce. The applicant then sought leave to appeal this decision. The applicant subsequently lodged two further subpoena requests, which the primary judge rejected for filing. The applicant then sought leave to appeal from the decision to reject the subpoena requests, which was mistakenly understood by the applicant as a refusal of leave to issue the subpoenas. The applicant subsequently sought to stay the substantive proceedings pending the determination of the appeal and to grant leave to file and serve his application for leave to appeal. The primary judge treated this interlocutory application as an application for leave to issue the subpoenas and refused leave for the subpoenas to be issued.

The legal issues in this case centred on the principles governing the exercise of the discretion to grant leave to appeal an interlocutory decision. The relevant considerations included whether the decision was attended by sufficient doubt to warrant reconsideration and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The court also considered the applicant's request to amend the application for leave to appeal and to be dispensed from filing and serving the amended application.

The court dismissed the application for leave to appeal, finding that the decision was not attended by sufficient doubt to warrant reconsideration and that no substantial injustice would result if leave were refused. The court also granted the applicant leave to amend the application for leave to appeal by substituting the date of the interlocutory application and omitting certain paragraphs. The applicant was ordered to pay the costs of the second and third respondents as agreed or assessed.

In conclusion, the court dismissed the application for leave to appeal and granted the applicant leave to amend the application for leave to appeal. The applicant was ordered to pay the costs of the second and third respondents as agreed or assessed. The court found that the decision was not attended by sufficient doubt to warrant reconsideration and that no substantial injustice would result if leave were refused. The case highlights the importance of accurately understanding and interpreting interlocutory decisions and the principles governing the exercise of the discretion to grant leave to appeal.

Orders

Orders of the court

1. The applicant has leave to amend the application for leave to appeal by:

(a) substituting for the date “16 February 2023”, the date “6 April 2023” in the first paragraph of the application; and

(b) omitting paragraphs 1 and 2 under the heading “Accompanying Documents”.

2. Dispensation is granted to the applicant from filing and serving an application for leave to appeal amended in the respects identified in paragraph 1.

3. The application for leave to appeal is taken to be amended in the respects referred to in paragraph 1.

4. The application for leave to appeal is dismissed.

5. The applicant is to pay the second and third respondents’ costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, the application for leave to appeal must be dismissed. 2. BACKGROUND The applicant claims to be the sovereign king of Iran, kidnapped in 1987 and brought to Australia against his will in 1989. He also claims that the identity of a man who he does not know and to whom he has no known connection, a “Sohyle Lagheyefar’” or “Sohail Laghaifar”, has been imposed on him. As a result, the applicant considers that he does not hold Australian citizenship and has no visa or travel document to authorise him to enter or remain in Australia. He therefore contends that he is an unlawful non-citizen without liberty to travel, perform work, hold a driver’s licence, access benefits, open a bank account, or register a tax file number. He claims that he has been unlawfully and arbitrarily detained since his arrival in 1989 (but does not contend that he is immigration detention) and that he has never applied for Australian citizenship. The second and third respondents, however, contend that the applicant is instead a person by the name of ‘Sohail Laghaifar’. On 11 December 1989, a travel document in the name of ‘Sohyle Lagheyefar’ was issued in Sofia, Bulgaria by Mr Joseph Petyanszki, who was then employed by the second respondent as the Second Secretary (Immigration) in Belgrade. The second and third respondents contend that the applicant then entered Australia using that travel document under a permanent resident visa. On 28 January 1992, preferring the spelling ‘Sohail Laghaifar’, the applicant purportedly applied for Australian citizenship, which was granted on 19 November 1993. The second and third respondents contend that the applicant currently resides without constraint in Queensland and is not in immigration detention. The procedural history of this matter centres on the applicant’s claim that he is an unlawful non-citizen. That claim, in turn,is tied to his assertion that his identity is other than that which is represented on the documentary record. On 9 July 2020, the applicant lodged a complaint with the Australian Human Rights Commission (AHRC) that his rights under art 12 of the International Covenant on Civil and Political Rights had been infringed. On 11 August 2021, a delegate of the President of the AHRC decided not to continue to inquire into the applicant’s complaint under s 20(2)(c)(iib) of the Australian Human Rights Commission Act 1986 (Cth), on the basis that the decision-maker was satisfied “that there is no reasonable prospect of the matter being settled by conciliation”. [CB72 [1]] On 20 October 2021, the applicant lodged an amended originating application seeking judicial review of the delegate’s decision. The applicant also sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth) including a declaration that he is an unlawful non-citizen under the Migration Act 1958 (Cth) (Migration Act) and seeking his release from detention by providing a certificate of identity.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In his submissions, the applicant also sought an order that the second and third respondents show cause by filing an affidavit deposing to the ground or grounds for the detention of the applicant as an unlawful non-citizen in Australia since December 1989. This was not before the primary judge and cannot form part of any appeal. 5. CONCLUSION For the reasons explained above, the decision of the primary judge is not attended by sufficient doubt to warrant its being reconsidered, and no substantial injustice would result if leave were refused. The application for leave to appeal should therefore be dismissed. The applicant having been wholly unsuccessful in this application, there is no reason why the applicant should not pay the costs of the second and third respondents as agreed or assessed and an order to that effect is therefore appropriate.

Ratio Decidendi

Legal Principle Established

On 20 October 2021, the applicant lodged an amended originating application seeking judicial review of the delegate’s decision. The applicant also sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth) including a declaration that he is an unlawful non-citizen under the Migration Act 1958 (Cth) (Migration Act) and seeking his release from detention by providing a certificate of identity. The applicant sought leave to issue subpoenas to the second and third respondents in relation to the travel document identifying him as ‘Sohyle Lagheyefar’ dated 11 December 1989. On 7 March 2022, Thomas J refused leave to issue subpoenas in the substantive hearing and set aside a notice to produce: Qajar v Australian Human Rights Commission [2022] FCA 189. The applicant’s application for leave to appeal that decision was dismissed on 11 November 2022: Qajar v Australian Human Rights Commission [2022] FCA 1339. The matter was relisted for a substantive hearing. On 7 February 2023, the applicant lodged two further subpoena requests in relation to the travel document and application for Australian citizenship. These are the requests with which the present appeal is concerned. The first subpoena request was for Mr Petyanszki to give evidence in connection with the issue of the travel document in 1989 on which Mr Petyanszki’s name appears. The second subpoena request was directed to the second respondent to produce a range of documents in relation to the applicant’s application for Australian citizenship and the grant of citizenship in 1993 (the citizenship documents). The primary judge rejected the subpoena request for filing pursuant to rule 2.27 of the Federal Court Rules 2011 (Cth). A decision of this nature is not susceptible to appeal. However, on 15 February 2023, the applicant was mistakenly advised that the primary judge had “refused leave to issue the requested subpoenas” (emphasis added). On 2 March 2023, the applicant (understandably) sought leave to appeal from the “decision” to reject the filing of the subpoenas, under the misapprehension that the primary judge had in fact refused leave to issue the subpoenas. On 13 March 2023, the applicant lodged an interlocutory application seeking the staying of the substantive proceeding until the determination of the appeal, and an order granting leave to file and serve his application for leave to appeal and supporting affidavit. The primary judge treated the interlocutory application as an application by the applicant for leave to issue the subpoenas and on 6 April 2023 refused leave for the subpoenas to be issued. 3. LEAVE TO APPEAL: RELEVANT PRINCIPLES Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), an appeal cannot be brought from a judgment in s 24(1) that is an interlocutory judgment “unless the Court or a Judge gives leave to appeal”. The decision over which leave is sought in the present case is such a judgment. The principles which govern the exercise of discretion to grant leave to appeal are well settled: see e.g. Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ); see also e.g. Ashby v Slipper [2016] FCAFC 63; (2016) 241 FCR 55 at [41] (Mansfield, Siopis and Gilmour JJ)). Relevant considerations include:(1)whether in all the circumstances the decision is attended by sufficient doubt to warrant its reconsideration; and(2)whether substantial injustice would result if leave were refused, supposing the decision to be wrong.