FEDERAL COURT OF AUSTRALIA

Fard v Minister for Immigration and Border Protection [2013] FCAFC 126

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

3.    The title of the respondent be amended to Minister for Immigration and Border Protection.

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

REASONS FOR JUDGMENT

1    Having heard argument yesterday the Court ordered that the appeal be dismissed and that the appellant pay the respondent’s costs of the appeal. The Court advised the parties that the reasons for the making of these orders would be published today. These are those reasons.

2    The trial judge in this proceeding described it as “the strangest case [he had] encountered in almost 29 years as a judge.” His Honour’s observation is understandable. The appellant came to Australia from Iran in 1988. In order for her to do so it was necessary that she obtain a visa. As a result various communications passed between Ms Fard and officers of the Department of Immigration. Forms were completed relating to Ms Fard’s application. Further communications occurred after Ms Fard’s arrival in Australia. Documentary records of these communications are retained on departmental files. Some of these documents record that Ms Fard is the mother of a man named Sohyle Lagheyefar or Sohail Laghaifar (or variants of these spellings).

3    There is also, in Australia, a man who has used these names (or variants of them). This man claims that his real name and title is his Imperial Majesty Soltan Qeumars Shah Qajar. He claims to be the grandson of a Shah of Iran who was deposed in 1925 and to be the true heir of the throne of Iran. The trial judge referred to him as “Mr Qeumars” and we will also do so. Mr Qeumars came to Australia in 1989. He too had dealings with the Department of Immigration and various other public authorities. In some of those dealings he (or, on his account, other persons acting without his knowledge) used the names Sohyle Lagheyefar or Sohail Laghaifar or variants of them and attributed them to him. There are documentary records on the department’s files which relate to these dealings. These and other documents created by third parties (including members of Ms Fard’s family) identify Mr Sohail Laghaifar as Ms Fard’s son.

4    Ms Fard denies having a son named Sohyle Lagheyefar or Sohail Laghaifar. Mr Quemars denies that Ms Fard is his mother.

5    Ms Fard claims that the documentary records, held by the Department, are false in so far as they state that she is the mother of a man so named. She further claims that she has suffered various forms of harm and persecution in Australia because of these false statements in the departmental records.

6    Counsel for Ms Fard told the trial judge that she wanted the respondent Minister to correct what she said were the false statements in the various documents or that, in some way, the documents, or relevant parts of them, should be removed from the departmental records.

7    To this end she commenced a proceeding in this Court. She sought various forms of relief but, in opening her case, counsel narrowed the relief sought to two injunctions in the following terms:

“1.    An injunction prohibiting the respondent from holding any record whatsoever in the applicant’s name or identity by which it is recorded that the applicant has a son identified as the name Sohyle Lagheyefar, date of birth, 12 December 1966, or the name Sohail Laghaifar, date of birth, 24 December 1968, the subject of Australian citizenship number CN9200034H, or otherwise;

2.     An injunction prohibiting the respondent from stating, demonstrating or in any way portraying that the name Sohyle Lagheyefar, date of birth 12 December 1966, or the name Sohail Laghaifar, date of birth 24 December 1968, the subject of Australian citizenship number CN9200034H, or otherwise, is the name or identity of the applicant’s son;

    …”

8    Following a trial which extended over 11 days between March 2012 and March 2013, the trial judge dismissed the application. His primary reason for doing so was that Ms Fard had failed to establish any cause of action which would have entitled her to the relief which she sought. He further found that, in any event, Ms Fard had failed to prove the facts on which she sought to rely at trial.

9    Ms Fard’s notice of appeal contains three grounds. None of these grounds challenge the principal basis of his Honour’s decision. Ms Fard alleges that the trial judge erred in finding facts. It is also alleged that the decision under appeal “was unfair and unjust” by reason of what are said to be a series of procedural errors. The third ground alleges ostensible bias on the part of the trial Judge based on various statements made by him in the course of the trial.

10    Ms Fard seeks orders that the judgment below be quashed and, in lieu thereof, it be ordered that judgment be entered for her. An injunction is sought, substantially in the terms of the second injunction sought at trial. Ms Fard also seeks a declaration that the impugned information on the departmental files is false.

11    The Court has jurisdiction, under s 39B(1) of the Judiciary Act 1903 (Cth) to entertain applications in which injunctions are sought against officers of the Commonwealth. The respondent Minister is such an officer. The central question raised by this appeal is whether Ms Fard has any relevant right which might be vindicated by the granting of an injunction.

12    It is clearly established that a court has no authority, statutory or otherwise, to prohibit conduct unless that conduct is unlawful. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 240 Gummow and Hayne JJ (with whom Gaudron J agreed) quoted with approval from the speech of Lord Diplock in “Siskina” Owners of Cargo Lately Laden on Board v Distos Compania Naviera SA [1979] AC 210 at 256 in which His Lordship observed that “the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment …”. Their Honours continued (at 241):

“The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory …) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature.”

13    This was necessary because, in the absence of such rights, no final relief could be granted at trial and no prima facie case could be made out to support the granting of interlocutory relief.

14    Ms Fard has not identified any cause of action which she can pursue against the Minister. In so far as an attempt is made, in her written submissions, to explain the foundation of her application for injunctive relief, that explanation is to be found in two paragraphs. They read:

“It is certain that the Court and the Public would expect the records to be correct. It is the duty of the Crown and every branch of the Executive to abide by and obey the law. The duty of the Executive in cases of doubt, is to ascertain the law in order to obey it, not to disregard it.

…

It is the courts (sic) duty and in the public interest to uphold the law and maintain a perception of integrity for the court system in separation from the Executive Government.”

15    The first injunction sought by Ms Fard would prohibit the Minister from holding any records in which Ms Fard is said to have a son named Sohyle Lagheyefar or Sohail Laghaifar.

16    Ms Fard has been unable to point to any legal reason why the Minister should not be able to hold and retain records that contain false information (assuming, in her favour, that the information held by the Minister relating to her and about which she complains is, in fact, false).

17    It is hardly surprising that no such duty falls upon Ministers. If it did the veracity of every fact contained in every document received by a department would have to be checked and verified before the document was accepted and placed on departmental files. Such a requirement would also prevent departments retaining documents which contained false information with a view to those documents being tendered in evidence in prosecutions of their authors. There would also be, as his Honour pointed out, the potential that any person, who sought to amend documents, held by departments, by removing allegedly false information from them, might commit a criminal offence under s 26 of the Archives Act 1983 (Cth).

18    In this context it may be noted that Part V of the Freedom of Information Act 1982 (Cth) provides a statutory regime pursuant to which records, held by Government departments, which are found to be inaccurate or misleading, may be corrected. Ms Fard has, for some reason, chosen not to pursue this avenue of redress. The existence of this regime implicitly recognises that records held by Government agencies may contain inaccurate information and do so lawfully.

19    The second injunction would prohibit the Minister “from stating, demonstrating or in any way portraying” that Sohyle Lagheyefar or Sohail Laghaifar was Ms Fard’s son. There was no evidence before the trial judge that suggested that the Minister proposed to do any of these things.

20    More importantly, however, Ms Fard was unable to point to any legal basis for suggesting that, were the Minister to so act, he would necessarily act unlawfully. The Minister could, for example, confirm that documents, held by the Department, contained information that suggested that a person, bearing one or both of these names, was Ms Fard’s son. The Minister could do so without vouching for the accuracy of the statements. In making such a pronouncement the Minister would not breach any duty owed by him to Ms Fard.

21    The trial judge was correct in concluding that Ms Fard had failed to advance any cause of action which would have warranted him granting one or either of the injunctions which she sought. He was, therefore, bound to dismiss the application.

22    As a result it is strictly unnecessary to deal with the alternative basis of his Honour’s decision or the issues raised by the grounds of appeal. Even so, in the interests of completeness we note that these issues are baseless. Without seeking to deal with each of the alleged errors in the trial judge’s findings we set out our views as follows.

23    Many of the factual findings which are attacked in the appeal were based on an assessment of the credit of witnesses by the trial judge. The appellant has not demonstrated that any of these findings are “glaringly improbable” or cannot rationally be reconciled with incontrovertible facts, uncontested testimony or compelling inferences: Fox v Percy (2003) 214 CLR 118 at [20]-[31] per Gleeson CJ, Gummow and Kirby JJ. In fact, in our view the factual findings accord with common sense and the documentary record.

24    It was open for the trial judge to reject the evidence of the appellant and Mr Qeumars as witnesses of truth. The trial judge found that both witnesses had concocted significant parts of their evidence in order that Mr Quemars might accomplish his aim of being accepted as the true heir of the throne of Iran. Further, some of their evidence was inconsistent with the documentary record.

25    The appellant complains that the trial judge did not take into account or give sufficient weight to significant inconsistencies in the documents held by the respondent, which was said only to contain hearsay in any event. We do not agree. No objection was taken to the hearsay nature of the documents before the trial judge and in any event many would have been admissible as business records. In our view the trial judge was correct to attach little or no weight to the variations in the spelling of Sohail Laghifar’s name. There were plausible explanations for the erroneous recording of the date of birth of Sohail Laghifar of 24 December 1968.

26    There is nothing to the point that the trial judge accepted “false” documents. The document referred to is an Iranian birth record for Sohail Laghifar and it is said to be false because of discrepancies between the apparent date of issue and the date of birth recorded. It was open to his Honour to give little weight to the discrepancies as mistakes can be made in translating dates from Iranian to Gregorian calendars.

27    Nor is there anything to the point that the respondent did not call various departmental officers to give evidence. It was the appellant who bore the onus of proof to establish the falsity of the departmental records. In any event most of the documents tendered were not created by departmental officers but were instead received from others and some were so old that the trial judge was not satisfied that those who created them would be readily available to give evidence about them.

28    The appellant complains about the respondent’s discovery of documents but no request for or order requiring discovery was made. A subpoena directed to the respondent was returnable on the first day of trial requiring production of all original documentation held by and contained in the respondent’s files in the names of the appellant (under various versions and spellings of her name), including the original versions of 16 documents attached to an affidavit of John Brown which annexed departmental documents. The trial judge determined that the respondent had complied with the terms of the subpoena and we can see no error in that conclusion. The appellant also complains that the trial judge failed to direct the respondent to produce files in the name of Sohail Laghifar. We can see no error in his Honour’s decision.

29    The appellant submitted that the decision of the trial judge was unfair and unjust because his Honour did not take relevant evidence into account. We do not agree. The trial judge embarked on a detailed and considered analysis of the evidence. The appellant has not identified any evidence on which she relied which was not considered, let alone any evidence that would have led a reasonable person to believe the appellant’s case on the balance of probability.

30    Finally, we reject the contention that the decision of the trial judge was unfair and unjust because his Honour “continuously interrupted” the appellant’s counsel and conducted “intimidating cross-examination” of her witnesses. This was a matter which required his Honour to take into account case management considerations such as the disposal of the proceedings in a timely manner: s 37M of the Federal Court of Australia Act 1976 (Cth); Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43 at [19] per Bromberg J. The appellant was given ample opportunity to present her case, was allowed to amend her application for relief during her opening and closing addresses, was granted adjournments and was permitted lengthy examination in chief. Nor did the appellant make out her submission that the decision is “unfair and unjust” because the trial judge’s demeanour displayed a perceived bias. The appellant did not identify any foundation for a submission that his Honour decided the case on a basis other than its legal and factual merits, and did not bring an impartial mind to the resolution of the matters that the Court was asked to determine: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 361 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

31    The appeal should be dismissed with costs.

Associate:

Dated:    14 November 2013