FEDERAL COURT OF AUSTRALIA

Fard v Minister for Immigration and Citizenship [2013] FCA 452

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

The nature and history of the proceeding

1    This is the strangest case I have encountered in almost 29 years as a judge. The applicant, Ms Fard, was born in Iran in 1947. In 1987, she fled to Turkey to avoid persecution of those of the Baha’i faith, of whom she is one. She was granted a visa to come to Australia. She arrived on 25 May 1988. She claims that the respondent, the Minister for Immigration and Citizenship (“the Minister”) holds documents that state falsely that Ms Fard is the mother of a man called Sohyle Lagheyefar or Sohail Laghaifar (or some variant of those spellings). She says that, in consequence of the existence of these false records, she has suffered various forms of harm and persecution in Australia. She wishes the Minister to cease to hold those records, or to correct them.

2    There is in Australia a man who has been known by the name Sohyle Lagheyefar or Sohail Laghaifar (or some variant thereof). He denies that Ms Fard is his mother and denies that that is his name. He claims to be his Imperial Majesty Soltan Qeumars Shah Qajar, the grandson of a Shah who was deposed in 1925, and the true heir to the throne of Iran. For convenience, I refer to him as Mr Qeumars in these reasons for judgment, as I did at the trial.

3    There are indeed many documents in the records held by the Department of Immigration and Citizenship (“the Department”) in which it is stated that Ms Fard is the mother of a son whose name is spelt in one or other of the ways referred to in [1] above, or some variant of either of those spellings. A number of those documents were tendered in evidence by pro bono counsel for Ms Fard, along with evidence intended to demonstrate the falsity of the documents to the extent that they represent that Ms Fard has a son who bears the name in question (and sometimes in other respects). The case put on behalf of Ms Fard 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.

4    Until the trial, when Ms Fard obtained the services of her own pro bono counsel, she was unrepresented. Her English is limited, and she was assisted at directions hearings by a woman whose original name was Adi Erez, to whom I shall refer as Ms Erez for convenience. Ms Erez was born in Israel. She is married to Mr Qeumars. During much of the trial, she assisted counsel for Ms Fard by finding documents he wished to tender. In the interlocutory stages of the proceeding, Ms Fard filed a number of documents described as affidavits, although they were not in the form required for affidavits to be filed in this Court. These documents tended to be argumentative, discursive and repetitive. Often, they annexed further copies of documents already annexed to previous affidavits. I did not try the proceeding on affidavit. I insisted upon oral evidence and the tender of documents individually.

The cause of action

5    Ms Fard’s application claimed to be based on s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Those subsections provide as follows:

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

6    The relief sought in the application was principally declaratory, although there were some claims for orders that might have been described as injunctions. The application also referred to s 23 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

7    At the outset of the trial, there was discussion about the jurisdictional basis of the application. I pointed out to counsel for Ms Fard that, although s 21(2) of the Federal Court Act permits an applicant to seek nothing more than declaratory orders, by s 21(1) this can only be done in civil proceedings in relation to a matter in which the Court has original jurisdiction. The broad power to make orders found in s 23 of the Federal Court Act is subject to a similar limitation. Counsel referred to s 39B(1A)(c) of the Judiciary Act and to possible contraventions of the Criminal Code Act 1995 (Cth) (“the Criminal Code Act”). I drew to his attention the exclusion from s 39B(1A)(c) of criminal matters generally, which has the effect of preventing this Court from exercising any general criminal jurisdiction, as distinct from that conferred specifically by any other legislation.

8    During his opening address, counsel for Ms Fard sought leave to amend the application by deleting all of the relief sought and substituting the following:

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;

3.     Costs.

The purpose of this amendment was to invoke the jurisdiction conferred on the Court by s 39B(1) of the Judiciary Act, by seeking an injunction against the Minister, who is an officer of the Commonwealth. Counsel for the Minister consented to the application for leave to amend on this basis. I gave leave.

9    In the course of discussion about the jurisdictional basis of the proceeding, at the outset of the trial, counsel for the Minister referred to provisions found in Pt V of the Freedom of Information Act 1982 (Cth), pursuant to which applications can be made for amendment or annotation of personal records. Such applications do not involve proceedings in this Court, except possibly by way of an appeal on a question of law, following a review by the Administrative Appeals Tribunal of a decision made on such an application. In her final address, counsel for the Minister also referred to provisions of the Archives Act 1983 (Cth) (“the Archives Act”). This appears to be the only legislation of the Parliament of the Commonwealth of Australia making provision for the keeping of records. The effect of s 26 of the Archives Act is to make it a criminal offence for a person to add to or alter a Commonwealth record that has been in existence for more than 15 years, unless the addition or alteration is required by any law or is done with the permission of, or in accordance with a practice and procedure of, the National Archives of Australia.

10    At no time did counsel for Ms Fard refer to any authority that would support the proposition that the Minister (assuming that he in fact holds documents) has a general duty to hold only records that contain accurate information and do not contain false information. Such a general duty would be extremely onerous if it exists. It would require all Commonwealth instrumentalities to review all their records constantly in the light of any information they acquired, in order to ensure that those records contained only accurate information. There would be serious questions as to the identity of any person or persons to whom such a duty would be owed. If any member of the public had the right to sue any Minister or other Commonwealth instrumentality, or the Commonwealth itself, seeking injunctions requiring amendments to records, the potential for litigation would be enormous. Further, the existence of such a duty might conflict with a provision such as s 26 of the Archives Act, by allowing a member of the public to seek an injunction requiring additions or alterations to be made to records more than 15 years old, which conduct would amount to an offence under that section. In the absence of any authority suggesting the existence of such a duty, I should be reluctant to find that one exists.

11    Ultimately, in his final address, counsel for Ms Fard was forced to contend that the basis for the application is some general duty on the part of the Minister not to harm Ms Fard. The submission has echoes of Beaudesert Shire Council v Smith (1966) 120 CLR 145, in which the High Court seemed to breathe life into the archaic action on the case for intentionally causing harm by an unlawful act. Even if that case remains good law, there is obvious difficulty in applying it in the present case. The only unlawfulness to which counsel for Ms Fard pointed in his final address was to be found in various provisions of the Criminal Code Act, particularly ss 73.6-73.8, 137.1, 145.1, 145.2 and 145.5, all of which make criminal offences of possession and use of various false documents. It is unnecessary to analyse the effect of each of those provisions. It is enough to say that there is no evidence of intention on the part of the Minister to harm Ms Fard, whether by keeping false documents or otherwise. Nor is there any cogent evidence connecting any harm Ms Fard alleges she has suffered with any falsity of documents held by the Minister or the Department.

12    In the absence of an established cause of action, Ms Fard’s application is bound to be dismissed. In case there is some undiscovered basis for the proceeding, and having heard evidence and submissions over a number of days, I should deal with the factual issues in the case in any event.

DNA testing

13    In the course of the trial, I raised the question whether it would be useful to have Ms Fard and Mr Qeumars undergo DNA testing. If a DNA test revealed a high degree of probability that Ms Fard is the mother of Mr Qeumars, that would appear to be decisive of the outcome of the case. If the test revealed a high degree of probability that Ms Fard was not the mother of Mr Qeumars, that would leave open the question whether Ms Fard had a son going by the name in question, but would make it clear that Mr Qeumars was not that son. I indicated that, because this was not a criminal case, I could and would draw an inference against Ms Fard if she declined to provide a sample for DNA testing.

14    Ms Fard and the Minister agreed on a protocol for DNA testing. Ms Fard and Mr Qeumars presented themselves to an approved tester and provided samples. Once she had received the result of the test, Ms Fard made it clear that she wished to challenge the accuracy of the report based on the testing. In substance, her challenge was to be on the basis that she and Mr Qeumars were closely related. Each was said to be within the broader family of the deposed Shah who is claimed to have been the grandfather of Mr Qeumars. Because of a history of marriages within that broader family, Ms Fard and Mr Qeumars claim to be cousins through both parents of each of them. Ms Fard complained that the person who completed the report of the DNA test did not take into account this information, although it had been supplied. On the resumption of the trial on 4 March 2013, counsel for Ms Fard sought an adjournment, to enable Ms Fard to call expert evidence from Germany concerning the correctness of the DNA test report. It was said that the German expert was unavailable to give evidence by telephone during the week of the resumption of the trial. I refused to grant an adjournment. The basis of my refusal was that the German expert had indicated in a written report that it would be possible to calculate the probability of the result of the DNA test being achieved if the details of the family trees of Ms Fard and Mr Qeumars had been made available. I saw no reason why these details should not have been made available to the German expert, who could have been invited to give a written report as to the probabilities concerned. Such a written report might have obviated any need to call the expert witness.

15    In the result, neither party sought to tender the report of the DNA test. It was not tendered in evidence, and I do not have any regard to it in relation to the factual issues in the case. Each side then invited me to draw an inference against the other on the basis of the failure to tender the report of the DNA test. I do not draw any such inference against either Ms Fard or the Minister. No inference against Ms Fard is drawn because she wished to challenge the accuracy of the report, on a basis which cannot be said to be fanciful. I do not draw an inference against the Minister. If counsel for the Minister had attempted to tender the report, counsel for Ms Fard would no doubt have objected to the tender, unless Ms Fard were entitled to call the proposed expert evidence. For these reasons, evidence of DNA testing has played no part in the outcome of the case.

Ms Fard

16    Ms Fard gave evidence that she had only two children by her first husband, whose surname was Laghaifar or Lagheyefar. The first was a son named Siamak or Siameak (other variations of the spelling also appear in the documents), who was born on 19 May 1969. The second was a daughter named Soheyla or Sohaila, born on 22 May 1970. Ms Fard gave evidence through a Farsi interpreter. At an early stage of her evidence in chief on 26 March 2012, Ms Fard gave evidence of these two children. In answer to the question whether she had given birth to any other children, she said:

No. Other than one aborted birth. The child was born dead.

When asked when this had occurred, she said it was “prior to my son and it was my first child”. This subject was not raised again until some way into cross-examination which had begun in the morning on 27 March 2012. In the meantime, Ms Fard had denied consistently and repeatedly having a son by the name Sohail or Sohyle. Late in the afternoon of 27 June 2012, having denied that she had supplied information in a particular document that she had a son by the name of Sohail Laghaifar, she volunteered that she did have a son named Sohail. She said she was pregnant and had named the baby Sohail, but the baby was dead when it was born. In answer to further questions, she said that the stillbirth had occurred in April 1968.

17    Ms Fard said that she remained in Iran until late May 1986. She was qualified as a hairdresser and beautician. She gave evidence of a number of incidents involving persecution of her, which she said occurred because she was of the Baha’i faith. In late May 1986, she fled to Turkey with her son Siamak, arriving in late July 1986. She was not accompanied by her daughter, who she said had been abducted and married against her will to a man of the Muslim faith.

18    In Turkey, Ms Fard made contact with the United Nations High Commissioner for Refugees (“UNHCR”) and claimed refugee status. She said that she wanted to go to Australia. Ms Fard said that Siamak went to Greece not long after she arrived in Turkey.

19    In about July 1987, Ms Fard left Turkey and travelled with a group of other people to Singapore. She said she did this because she believed her application was unlikely to succeed in Turkey and she had been told by others that it would be processed more quickly in Singapore. She said she remained in Singapore until October or November 1987, and then travelled to Malaysia, where she was taken into detention. While she was in Malaysia, she was granted a visa to come to Australia. She landed in Brisbane and then travelled to Cairns, where her aunt Roofia Solouky lived.

20    Later, Ms Fard sponsored her son Siamak and her daughter to come to Australia. She said that in December 1989, she was told that her daughter was arriving in Cairns. She went to the airport, expecting to meet her daughter. After all of the passengers appeared to have left, and there was no sign of her daughter, Ms Fard asked someone what had happened, she was shown to a man in a wheelchair, who was in poor health and was recovering from a gunshot wound. She said this man turned out to be Mr Qeumars. Subsequently, she saw Mr Qeumars a couple of times at the hospital in Cairns early in 1990. She went to the hospital because of her own illness, and not to see him.

21    In the years following, Ms Fard said a number of things happened to her because of her perceived connection to Mr Qeumars. She claimed that she was beaten up. She said death threats were made to her. She claimed to have been abducted. She said she was forced to close a business she was conducting. People she did not know demanded that she admit that she was the mother of Mr Qeumars.

Mr Qeumars

22    Mr Qeumars said he was born on 1 January 1969. He said his mother was Her Excellency Molukal Soltan and his father was His Majesty Soltan Fereydoun Mirza Qajar, the heir to the Qajar dynasty. Mr Qeumars said that he had no memory of his father, from whom he had been separated at an early age. His knowledge of his parentage came from his mother.

23    Mr Qeumars accepted that there was a good deal of information circulating publicly about the man he claims to have been his father. This information included a marriage to a Bulgarian woman, with whom the man had lived in Switzerland and in France. Two children were born of that marriage. Mr Qeumars said he had not met them and did not wish to do so. He claimed that his father had been assassinated, as a result of an order for his assassination in 1975, although he accepted that the publicly available information was that the man concerned had died in a car accident.

24    Mr Qeumars said that he first had contact with Ms Fard in Iran when he was 13 or 14 years old and in the care of Ms Fard’s sister. He next saw her at the airport and then again when she visited him in hospital in Cairns.

25    Mr Qeumars’s account of his life in between those two incidents was somewhat complex. He said that he had left Iran in April 1986, in an attempt to find information about the assassination of his father. He gave evidence of visiting a number of countries, of being imprisoned and tortured, and of being shot while attempting to escape from custody. He said that he was in custody in Bulgaria when he met a man called Bob Gordon from the British consulate, who assisted in getting Mr Qeumars out of prison and on his way to Australia. He said that he had been flown to Australia in what he believed was a military aircraft.

26    Mr Qeumars said that he was treated in hospital for his gunshot wound. At various times, he stayed with Ms Fard in her home.

27    Mr Qeumars said that the name Sohail Laghaifar, by whatever spelling, had been imposed on him when he came to Australia. He said it was not his name. He had met both Ms Fard’s son Siamak and her daughter, but denied that they are his brother and sister.

28    Mr Qeumars also gave detailed evidence of his life after he arrived in Australia. He said he had been the subject of attempts to assassinate him. He also said that he had suffered a major workplace injury as a result of electrocution, and that this had caused him to suffer a lengthy period of mental incapacity.

29    Mr Qeumars obtained from Queensland Transport a driver’s licence, which was effective from 26 November 1991. The name on the licence is Sohail Laghaifar. The date of birth was recorded as 24 December 1968. Mr Qeumars said that he was assisted by an Iranian man named Kamran, from an Iranian group, who filled out the form for Mr Qeumars before he did the test. Kamran also taught him to drive.

30    Mr Qeumars then used this driver’s licence as his identity document. He obtained employment at the Hilton International Hotel in Cairns in the name Sohail Laghaifar. He was given a tax file number in that name, for which he said he never made any application. He used an accountant to assist him with tax returns, but paid tax in the name Sohail Laghaifar.

31    On one of the Department’s files, there is a copy of a certificate of marriage, indicating that on 21 March 1993, an authorised celebrant solemnised a marriage between Sohail Laghaifar and Kaisa Dagmar Oiderman. Mr Qeumars also married Ms Erez in the name Sohail Laghaifar on 8 November 2001. The certificate of that marriage is also in evidence.

32    In relation to his injury by electrocution, Mr Qeumars made claims for workers compensation and was granted medical certificates in the name Sohail Laghaifar. Subsequently, he entered into a business venture at Kuranda, which was conducted by a corporation called Wild North Pty Ltd, of which Mr Qeumars was a director under the name Sohail Laghaifar. As a result of this business venture, there were several court cases, some instituted at the request of Mr Qeumars and others brought against him. In those cases, he went by the name Sohail Laghaifar, although his evidence was that lawyers who acted for him either used that as his name or insisted that he must use it.

33    In the Department file to which I have referred are copies of a number of cards, all in the name Sohail Laghaifar. There is a Commonwealth Bank Keycard, which Mr Qeumars used to operate a bank account. There is also a Commonwealth Bank MasterCard, which Mr Qeumars said he never used. There is a Medicare card, which Mr Qeumars said was posted to him and which he sent back. He said he made attempts to persuade Medicare to change his identity. There is a Queensland Shooters Licence, for which he said he did not apply personally, but received as a member of a club, because he had a driver’s licence in the name. There is a scuba diving certificate, for which Mr Qeumars said he was told that the name on his driver’s licence had to be used.

34    In addition to these cards, there are two that appear to relate to superannuation funds, namely Sunsuper and Australian Retirement Fund. There is also an AGC Credit Line card. In any of these documents to which I have referred, where there is a birth date recorded, it is 24 December 1968.

35    There is in evidence a copy of the decision and reasons for decision of the Refugee Review Tribunal, constituted by Janet Wood, dated 24 March 2004. The applicant for a protection visa was Ms Erez. Mr Qeumars was included in the same application as a member of the family unit of Ms Erez, in the name Sohail Laghaifar, although he denied that he had authorised the migration agent who lodged the application to do so on his behalf. He did admit that he provided the photo of him attached to the application. The Tribunal’s reasons refer to the fact that Ms Erez had married Sohail Laghaifar on 8 November 2001. The terms of the reasons indicate that both Ms Erez and Mr Qeumars had given evidence at a Tribunal hearing. Mr Qeumars said that there was no such hearing. He said there was nothing more than a video link, during which the Tribunal member asked Ms Erez a question about a barcode on her visa.

36    A certificate of Australian citizenship was issued in the name of Sohail Laghaifar who was described as having been born on 24 December 1968, and who was an Australian citizen on and after 19 November 1993. The certificate was issued to Mr Qeumars, who said that he did not apply for it and attempted to return it to the Department. He said that he was in hospital at the relevant time. In re-examination, he said that he was under “legal and medical incapacity in 1993”. In his evidence in chief, Mr Qeumars said that the electrocution incident occurred on 9 January 1992. He then said that from 1 January 1993 to January 1994 he was “declared under full incapacity.” The application for a grant of Australian Citizenship, to which I will make further reference below, was dated 1 January 1992.

37    Mr Qeumars occupies premises in Palm Cove in Queensland, at which he has established what is called the Imperial Chamber and the Embassy of Persia. He has established two websites, on which he has posted information supporting his claim to be the heir to the throne.

Identity documents of Mr Qeumars

38    Tendered in evidence were photocopies of documents alleged to be records of birth or identity from Iran, together with translations of those photocopies. Exhibit A is a poor quality, black and white photograph of both sides of a document. At the top of the page is a signature “C. Roberts” above the stamp “MIGRANT RESOURCE CENTRE/CAIRNS”. Also part of Exhibit A is a document headed “TRANSLATION FROM IRANIAN INTO ENGLISH”. At the foot of that document appears the signature “Cecilia. M. Roberts J.P.” immediately under that signature is typed “Cecilia M. Roberts J.P.”. On the next line appear the words “Migrant Resource Centre Cairns Inc.” Below that is the stamp “MIGRANT RESOURCE CENTRE/CAIRNS”.

39    Exhibit T is a colour photocopy of the face only of a document. Exhibit U is a document bearing at the top the date “Tuesday 5 . 1 . 1993” and then the heading “TRANSLATION FROM IRANIAN TO ENGLISH FOR COMMONWEALTH JUDICIAL RECORD”. At the foot of the document is the stamp of a Commissioner for Declarations and a certificate that the document is a true copy of the original, which the Commissioner for Declarations has sighted. The certificate is dated 2/3/2002. Exhibit V is headed “TRANSLATION OF BIRTH CERTIFICATION”. It bears at its foot a certificate that it is a true and accurate translation of a certified document. This certificate contains a statement that the translator is accredited by the National Accreditation Authority for Translators and Interpreters (“NAATI”) as a professional translator in English - Persian.

40    Counsel for Ms Fard invited me to find that the identity document in Exhibit A has been falsified, by reference to Exhibit T. Each document has a rectangle bounded by a border of a heavy line with a lighter line inside it. Outside this border is plain paper. On the right hand side of the face of each document, the plain paper area is much narrower than on the other sides, and appears to have become tattered or worn. Each document appears to have the same background printing of a repetitive design. Each has a single horizontal line across its face, lower than the middle of the face. Each has in the top right hand corner double lines forming a rectangle with the border. Each has a coat of arms consisting of an image of a plinth on which stands a lion, with its tail to the right and its head turned towards the viewer. The lion’s right fore-paw is raised and holds a vertical sword. Above the line, so as to create an image that it is behind the lion, is a depiction of a radiant rising sun. At the top of this is a crown.

41    Apart from these features, the two documents appear to bear little, if any, resemblance. Each has in the top left hand corner of its face a photograph of a small child. Whether the photograph is of the same child is difficult to tell, mainly because of the poor quality of the photocopy of Exhibit A. There are some similarities in the face, the right ear which is visible and the hair line. The two photos are different, however. In Exhibit A, the photo shows very little more than the face of the child, which (with the right ear) occupies almost the entire width of the photograph. The image is cut off just below the chin, so that very little of the child’s neck or clothing is visible. The image appears to be set within a white border, which is substantially wider underneath the image than on the sides and at the top. The bottom of the photograph overlaps only very slightly the horizontal line on the face of the document. By contrast, in Exhibit T the photograph has a good deal more of the background visible above and on either side of the face. It also shows the child’s neck and clothing. It has no border. It overlaps to a significant degree the horizontal line on the face of the document.

42    So far as can be discerned from the photocopy, Exhibit A appears to bear only one stamp on its face, by way of a seal. That stamp is in the bottom left hand corner and overlaps slightly the double-line border at the foot of the document. Altogether, there are five stamps by way of seals on the face of Exhibit T. They are of two different kinds. The smaller kind appears beneath the photograph, but entirely within the border of the document, and also to the right of, and partially overlapping, the photograph. The larger stamp is that of Mr Qeumars. It appears twice in red and once in grey. It appears to consist of a map, with some Farsi characters at the top and the words “Soltan Qeumars Shah Qajar” at the bottom.

43    So far as it is possible to examine the characters written and printed on the face of each of Exhibit A and Exhibit T, they are very different. There are printed characters, arranged vertically and accompanied by an asterisk, immediately to the right of each photograph. The printed characters are different and are placed differently in relation to the borders of the document, the characters in Exhibit T being set a little higher than those in Exhibit A. What appear to be handwritten characters do not bear any similarity at all. They are positioned differently and they are different characters, so far as can be observed from the poor quality photocopy in Exhibit A. Exhibit A has some apparently handwritten characters that overlap both the left hand border of the document and the lower border of the photograph. Exhibit T has some apparently handwritten characters that are partially covered by its photograph.

44    Counsel for Ms Fard invited me to conclude from an examination of these two documents that Exhibit A is a false document. He placed particular emphasis on the absence of any stamp on the photograph in Exhibit A. To the extent that this involved a suggestion that Exhibit A has had a photograph pasted onto it at a later date than the rest of the document has been created, I reject it. As I have said, there are apparently handwritten characters that overlap the border of the photograph and part of the document. Indeed, the fact that the photograph in Exhibit T has been pasted over some apparently handwritten characters might suggest that that photograph has been added later. It is true that there is an official-looking stamp, by way of a seal, that overlaps part of the photograph in Exhibit T. One of the red applications of Mr Qeumars’s own seal also overlaps it, but the application of his seal does nothing to provide confidence that Exhibit T is a genuine official document.

45    It is impossible to tell from a photograph of a young child whether either of the documents depicted in Exhibit A or Exhibit T is an identity document of Mr Qeumars. All that can be said is that they are documents of the same type, but very different in their content.

46     The translation that is part of Exhibit A is as follows:

MINISTRY OF INTERIOR

BIRTHS & STATISTICS REGISTRY OFFICE

CERTIFICATE OF BIRTH

Certificate No:    5722                Serial No :    768752

(Five thousand seven hundred & twenty two)

Date of issue :            ii/JAN/1968    (22nd of Bahman 1346)

Mr Sohail        Family Name :        LAGHAIFAR

Son of :            Mr Manoochehr        Birth Cert No : 458

Issued from division 4 Tehran & Mrs Shaindokht ,

Birth Cert No :    725 issued in Mehrabad of Maragheh .

Date of Birth :    3rd of Day Year of 1346 ( 24/12/68 )

Born in Tehran in Division 12 Rudaki Khosh

Name of Officer : Gholi    Family Name :    Karlaee

Position :    Assistant Registrar , Tehran

Signature/Stamp

Counsel for Ms Fard made much of the impossibility of a document being issued in January 1968 in relation to a birth in December 1968. So much can be accepted. It must be remembered, however, that mistakes can be made in attempts to translate dates from one calendar to another, a translation that is necessary when dates are expressed in terms of the calendar used in Iran.

47    It is not clear whether the translations in Exhibit U and Exhibit V are said to be of the same document, or whether either of them is said to be a translation of Exhibit T. The translation in Exhibit U reads as follows:

MINISTRY OF INTERIOR

BIRTHS & STATISTICS REGISTRY OFFICE

CERTIFICATE OF BIRTH

Certificate No : 1260        Serial No : 128674

( One thousand two hundred & sixty )

Date of issue :    15 / JAN / 1969 ( 25th of Day 1347 )

Photo of Identity affixed on :    6 / OCT / 1969 ( 14th of Mehr 1348 )

Official Seal stamped on : 20 / JULY / 1984 ( 3rd of Mordad 1363 )

Title : King / Emperor ( Soltan / Shah )     Name : Qeumars Family Name : QAJAR

( Soltan Qeumars Shah Qajar ) Son of : Mr. Fereydoun Mirza & Mrs Molouk ol Saltaneh

Date of Birth :    First of January 1969    ( 11th of Day 1347 )

Born in Tehran . Division 6 of Tehran . Signature / Stamp

48    The translation in Exhibit V reads:

TRANSLATION OF BIRTH CERTIFICATE AVAILABLE.

Document Certified as Original in Iran, 10 August 2011

Translation of Text at Bottom of Page:

The Birth Certificate of His Majesty SOLTAN QEUMARS SHAH QAJAR

Date of Birth: 01/01/1969

Father: Soltan Fereydoun Mirza Qajar

Mother: Molouk ol Saltaneh

The photo of SOLTAN QEUMARS SHAH QAJAR, 9 months old, bearing the stamp of the National Civil Registration Organization, dated 6/10/1969 affixed to document.

The differences between these two translations are apparent. They are not explained by evidence.

49    I do not find that either of Exhibit U or Exhibit V is a correct translation of any document of which the translation in Exhibit A is an incorrect or falsified translation. As I have said, Exhibit A and Exhibit T are very different documents, particularly as to the content of what is written on them. If either or both of Exhibit U and Exhibit V purports to be a translation of Exhibit T, then it has no more evidentiary value as to the identity of Mr Qeumars than Exhibit T itself. Standing alone, each of the translations in Exhibit U and Exhibit V have no evidentiary value as to the identity of Mr Qeumars. Indeed, the document or documents from which they are translated may be questionable. It is unlikely that in 1969, at a time when the Shah of Iran was from the Pahlavi family, a birth of a son from an earlier royal family would have been recorded as the birth of a King or Emperor or of “His Majesty”.

50    To the extent to which the translation of Exhibit A has any evidential value, it does suggest that a son by the name of Sohail Laghaifar was born to a woman by the name of Shaindokht, whose husband was Manoochehr. In her application in this proceeding, Ms Fard identified herself as “Shahin Dokht Modarreszadeh Esfahani Fard”. The similarity between “Shahin Dokht”, and “Shaindokht” in Exhibit A, is obvious. Further, Ms Fard gave evidence that the name of her first husband (the father of her son Siamak and her daughter Sohaila) was Manoochehr Laghaifar. Ms Fard did say that 725 was not the number of her identity certificate. She said her identity certificate was number 727.

51    Little, if any, weight can be placed on these alleged birth records and the translations of them.

52    As to the identity of Mr Qeumars, counsel for Ms Fard relied on two documents in the Farsi language, each accompanied by a notarial certificate and a translation by a NAATI accredited professional translator in English and Persian. The first of these documents is described as an “Official Passport” and has a photograph of Mr Qeumars affixed to it. The translation of the document is as follows:

In the name of God, Almighty

Emblem of the Islamic Republic of Iran

Emblem of the Judiciary Power

Bureau

Office

Judiciary Power

Date: 06/02/2012

No: 900012714

Attachment

____________________________________________________________________

Official Passport

Photo of the holder affixed

Name and Position: His Imperial Majesty QEUMARS Shahanshah (The Emperor) of Iran

Date of Birth: 01/01/1969 Tehran, Iran

His Imperial Majesty Soltan QEUMARS Shah Qajar, date of birth: 01/01/1969, Father: Soltan Fereydoun Mirza Qajar, Mother: Her Excellency Molouk ol Saltaneh with the Official titles of Shah and Shahanshah (The Emperor) of Iran which was Officially registered by State Civil Status Registration Organisation and by National Deeds Registry Organisation in the Country’s Royal Will on the 20/01/1975 and was proclaimed is the legal birth certificate and birth identification of His Imperial Majesty and all legal and Official and Constitutional authorities which have been legally given to His Imperial Majesty QEUMARS Shahanshah (The Emperor) of Iran is legally and Officially valid in Iran and outside of Iran.

Remarks: Due to the Country’s Royal Will which is the legal birth certificate and the birth identification of His Imperial Majesty QEUMARS Shahanshah (The Emperor) of Iran, for this reason His Imperial Majesty is in danger of absolute death and annihilation by the hypocrites, therefore His Imperial Majesty is residing out of Iran in Australia. At this time, it is advisable the Official residency should be outside of Iran because there is no possibility to return to Iran.

This Official Passport announced according to legal regulations.

Salahi

Head of the Justice Department

Signed and sealed.

The content of the seal: Official Emblem of the Islamic Republic of Iran, Emblem of the Judiciary Power, Officer of Judiciary Affairs, Guidance and Assistance Unit, Deputation, Experts, Communicators and Enquiries, Judiciary Power, Ajabshir Justice Administration Head Office.

53    The second of these documents contains a document apparently in Farsi script, to which are attached a number of adhesive stamps, over-stamped by seals. There is a stamped seal at the foot of it. Mr Qeumars has added a red image of his own seal. There is also a copy of another document, apparently in the Farsi script, and an English translation, again by a NAATI-accredited professional translator in English and Persian. This English translation is as follows:

In the name of God, Almighty

Emblem of the Islamic Republic of Iran

Emblem of the Judiciary Power

Bureau

Office

The Headquarters of Justice Administration of East Azarbaijan Province

Date: 06/02/2012

No: 900012714

Attachment

____________________________________________________________________

His Imperial Majesty Soltan QEUMARS Shah Qajar.

Your application enclosed with your photo-affixed form dated 21/01/2012 for obtaining an Iranian passport and returning to Iran was heard and investigated at Guidance Court of Justice.

With reference to the letter 900012714 dated 01/02/2012 referring to the Country’s registered Royal Will that is affixed with stamp of State Civil Status Registration and National Deeds Registry Organisation that has legally been registered on 20/01/1975 is your birth certificate and your legal birth identity and is an Official Deed which was proclaimed in Sepahsalar Mosque in the year 1975 therein all Official titles of Shah and Shahanshah (The Emperor) and all legal and Official powers which have Officially been given to you as well as your identity and your titles and your position cannot be denied by any governments and by any nation and by any laws.

Your temporary departure from East Azarbaijan of Iran to Turkey on the date 01/04/1986 in order to obtain the evidence of murder of your father Soltan Fereydoun Mirza Qajar and to find your mother Her Excellency Molouk ol Saltaneh was only a comprehensive plot against you which by misusing these objectives to take you out of Iran and then in cruel captivity and prison to destroy you in secret.

If you had not been abducted and imprisoned, you could have returned to East Azarbaijan of Iran where is the 12 thousand-year-old birthplace of your Arya ancestors and lived in Shishevan where is the birthplace of your ancestor Prophet Zoroaster (Zartosht) and the homeland of your ancestor Cyrus the Great and Xerxes the Great or reside in Ajabshir. But in the present time, no authority in Iran and nor any Embassy outside of Iran issues a permit for you to return to Iran.

You have had a lot of problems. The Australian government organisations and the hypocrites by taking advantages from your captivity, have gone so far with oppressing that you have been forced to apply for an Iranian passport to return to Iran. If a permit notice is to be issued and or even they suggest to get an Iranian passport for you to return to Iran, this is only a plot to destroy you and to kill you. Australian government is aware that according to the constitution of the Islamic Republic of Iran as stipulated in the remarks of passport, the Iranian passport holders are not allowed to travel to the occupied Palestine and you are not allowed to enter Iran either.

In the present time that cultural interactions between countries have become inevitable, the individuals informed of law and the honest legislators are well aware that Country’s Official Royal Will together with the registry made by State Civil Status Organisation is your birth certificate and together with the registry made by National Deeds Registry Organization is your only identification which is documented, and is one of the most important Official legal documents in the world which is an absolute Deed of your Coronation. By killing you, this great historical Royal Will will be destroyed, and the hypocrites will turn peace and comfort into unrest for all people. We request you to completely ignore coming to Iran or having contact with Iran’s Embassy by any means if you want to stay alive. Because enemies of Iran will misuse your coming to Iran and this will lead to slaughter and bloodshed.

One should admit that Judiciary Power that is the only legal authority cannot give you any suggestions concerning that if the government of Australia does not want you to have Official stay in Australia, apply for an Official residency with a suitable country. However, if you want an Official residency in Australia or for a legal departure from Australia, immediately request the government of Australia for an Official formal letter. Therefore for notification and legal regulations, the Country’s Royal Will sealed by the Justice Administration of Judiciary Power and the Official Passport affixed with your photo are sent respectfully.

Salahi

Head of the Justice Department

Signed and sealed.

The content of the seal: Official Emblem of the Islamic Republic of Iran, Emblem of the Judiciary Power, Officer of Judiciary Affairs, Guidance and Assistance Unit, Deputation, Experts, Communicators and Enquiries, Judiciary Power, Ajabshir Justice Administration Head Office.

54    It is difficult to take either of these two documents seriously. To the extent to which they purport to emanate from a court, in large part their contents are inexplicable. Even making the utmost allowance for cultural differences between the judicial systems of countries other than Australia and the system with which I am familiar, it is inconceivable that a judicial authority called upon to issue, or to authenticate, an official passport would add remarks concerning the current position of the person to whom the document related, providing a warning in extreme terms (“in danger of absolute death and annihilation by the hypocrites”) coupled with travel advice. The other document seems even more extraordinary. If it is intended to provide some authentication of the birth and the titles of the person to whom it relates, it is difficult to see why it would go on to provide extracts from the subsequent history of that person, travel advice and advice about where the person should live. Again, allowing for difficulties of translation, much of this is expressed in extreme terms. Particular knowledge is attributed to the Australian government. Predictions are made. It is unimaginable that any court would engage in such an exercise. In the Islamic Republic of Iran, it seems unlikely that any judicial authority, or any arm of government, would be prepared to acknowledge a person in the way that this document purports to do, and to appear to be taking the side of that person against the existing government.

55    I cannot accept either of these notarised documents as being the documents they purport to be. I do not accept that they contain any evidence bearing upon the identification of Mr Qeumars.

The documents held by the Minister

Documents containing information apparently supplied by Ms Fard

56    A significant number of documents from the records held by the Department were tendered in evidence, many of them by counsel for Ms Fard. Some of those documents contain information apparently supplied by Ms Fard herself. The earliest of those documents is an immigration application, stamped as having been received by the Australian Embassy in Ankara on 4 May 1987. The application is made in the name of a person whose surname is given as Nusihor and whose given name is Shahine. Ms Fard conceded that, prior to 2000, she was known as Shahine Nusihor. Shahine Nusihor is described as the “PRINCIPAL APPLICANT” in the form. The name of her father is given as Yosef Nusihor. The name of her mother is given as Zebendeh Soloky. In a section of the form intended for listing children, there appear three names, with an indication that each is to accompany the Principal Applicant to Australia. All are described as having been born in Tehran. The first name is given as Leaghaifear Soheil, who is described as “son”, with the date of birth 1967. The second name is Leaghaifear Siameak, also described as “son”, with the birth date 1969. The third name is Arzende Sheahla, described as “Daughte [sic] in Law”, with the birth date 1963. The last page of the form purports to be signed by the Principal Applicant on 12 March 1987, and also by Shahla Arzandeh, Siameak Leaghaifer and Soheil Leaghaifear. Ms Fard denied that she had signed this document. She conceded that a number of details of personal history contained in it were accurate, but said that others were inaccurate. She conceded that, to the extent that the form contained accurate information, she had provided that information to the person who completed it. She could not offer an explanation for the source of the incorrect information. She said that the incorrect information included the details relating to Soheil Leaghaifear and about the daughter-in-law, although she said that her son Siameak had married a woman called Azadeh, who had come with him to Australia and married him in Australia, and who was born in Iran, although not in Tehran.

57    In evidence is also an undated application for refugee resettlement. The principal applicant is described as Shahine Nusihor, with Nusihor given as the family name. In a part of the form designated as being for the names of dependents accompanying the principal applicant, appear three names, all described as having been born in Tehran and having the nationality “IRAN”. The first name is Leaghaifar Soheil, who is said to be a son and whose date of birth is given as 23 December 1967. The second name is Leaghaifar Siamak, also described as a son, whose birth date is given as 24 May 1969. The third name is Arzeande Shahla, described as “Daughter in Law” with a birth date of 25 August 1963. The form includes an education history of each of the persons dealt with in it including “Leaghifear Soheil”, who is said to have attended “High School” and to have achieved a diploma over 12 years. The form purports to be signed by three of the four persons named in it (there appears to be no signature of Siamak). Attached to it is a table designed to include “Details of Relatives”. Again, the principal applicant is Shahine Nusihor. Her spouse’s name is given as Manuchar Leaghafar. The principal applicant’s parents are described as Yosef Nusihor and Zebandeh Soloky. There is a list of brothers and sisters and also a list of children, which includes three names. The first is Leaghaifear Soheil, described as “SON”, said to reside in Turkey. His age is given as 20 and he is described as married. The second name is Leaghaifear Siameak, also described as “SON”, residing in Turkey. His age is given as 18 and he is described as single. The third name is Arzeande Sheahla, who also resides in Turkey, is said to be 24 years old and married, with the addition of the words “Daughter in Law”. The applicant denied completing this form and denied supplying the information used to complete it. She conceded that many of the details recorded in the form were accurate as to her personal history and family members. She insisted that the information about her eldest son was incorrect. She could not explain how it was that someone had acquired a significant amount of knowledge about her, and have used it to fill in the form, whilst adding incorrect information about her son and about other matters.

58    Also in evidence is a letter dated 16 September 1988 from the Migrant Resource Sub-Centre Cairns, signed by Wendy Lilja, Co-ordinator. The letter is headed “RE: REQUEST FOR U.N.H.C.R. ASSISTANCE FOR SOHAIL LEGHAIFAR, SOHAILA GHOTBI-FARIGORZ née LEGHAIFAR, HAMED AKEF, and SIAMAK LEGHAIFAR.” The letter purports to be written “On behalf of Mrs Shahin Nuzihor of Cairns”. It attaches a document apparently written in the Farsi language and script, described as a statement of Mrs Nuzihor and a “loose translation” of the statement. The letter includes the following passage:

Mrs Nuzihor contributed further details to me about the predicament that her children, SOHAIL, SOHAILA and SIAMAK and her cousin HAMED are in, which I detail underneath.

SOHAIL LEGHAIFAR        (Oldest Son)

Date of Birth:        24/1/1966

LAST KNOWN ADDRESS:    P.O. Box 1201

                    34438, ISTANBUL, TURKEY.

Contact Phone Number:            (90-1) 52 63950 (W)

(Friend)    Mr HABIBOLAH MANAVI:        (90-1) 35 47865 (H)

In brief, after Sohail was interrogated (paragraphs 14 & 15) he fled from the authorities and has taken refuge in Istanbul. He can be contacted through Mr Habibolah (above) but lives in fear of deportation to Iran where he, and his mother, believe that he would be in mortal danger.

Details are then given of Sohaila, Siamak and Hamed Akef. The letter asserts that Hamed Akef “arranged forged Iranian passports for Shahin and himself in the name of Saeed Ahmadi and Mina Naderi, a husband and wife, and travelled under those papers to Kuala Lumpur.” The “loose translation” of the statement attached to the letter refers to “my two sons”, “My eldest son, Sohail, who is now 22”, “my son Sohail” and “my son, Sohail who is living in Turkey.”

59    In the course of the trial, the interpreter assisting the Court was requested to translate for the benefit of the transcript the Farsi document attached to the letter from the Migrant Resource Sub-Centre Cairns. The interpreter’s translation included references to “me and my sons”, “My older son, Sohyle and I – Sohyle is now 22 years old and was born on 25 January 1966”, “Sohyle, my son” and “my son, Sohail Leaghaifar”. Ms Fard denied that the letter was written on her behalf, or that the statement in the Farsi language was hers. She denied signing the statement. She conceded that a considerable amount of the information in the letter and the statement was correct. She denied that Sohail Leghaifar was her oldest son and denied that any of the information given about him was correct. She also said some other matters were incorrect.

60    In a form she signed on 15 April 1989, Ms Fard applied to sponsor for immigration to Australia her daughter, whose name was given as Soheila Leghaifar, and her husband Fariborz Ghotbi. She did so in the name Shahine Nusihor. She responded in the affirmative to a question whether she had lodged any other sponsorship. In the event of an affirmative answer, the form invited her to attach a statement showing the name and relationship of a person she had sponsored. There is in evidence the statement attached to that form. Ms Fard denied that it was her statement and denied that the signature on it was hers. The statement gave as details of a current sponsorship “LEGHAIFAR, SOHAIL”, with a date of birth 24/1/1966 and an address in Istanbul, Turkey. It gave as details of a previous sponsorship “LEGHAIFAR, SIAMAK”, with a date of birth 19/5/1969 and an address as “Migrant Hostel, SYDNEY.” The statement said:

I am in the process of sponsoring my oldest son (Sohail) under the special humanitarian scheme. Siamak has recently arrived in Australia and is currently staying in Sydney and looking for work.

My children and I are of the Baha’i religion and were persecuted in Iran.

The applicant also said that this statement was inaccurate, because it was her aunt who had sponsored Siamak to come to Australia and not her.

Document containing information apparently supplied by Ms Fard’s aunt

61    There are also numerous documents the information in which appears to have come from other family members of Ms Fard. One such document purports to be signed by Ms Fard’s aunt, Roofia Soloky. It was tendered in evidence twice, once by each party. The copy tendered by counsel for the Minister is attached to a letter. The document is a Refugee and Special Humanitarian Program Nomination, in which Ms Soloky nominates Sheahine Nusihor, whom she describes as her “NEICE” [sic]”. Also included as dependent family members who would accompany the person nominated are Leaguaifear Soheeil, whose date of birth is given as “67” and who is described as a son of the person nominated, Leaguaifear Siameake, date of birth “69”, also described as a son, and Aarzeande Sheahla, date of birth “63”, described as “DAUGHTER IN LAW”. Attached to the copy of this document tendered by counsel for Ms Fard is a “Details of Relatives” table. Ms Soloky names the relative she is sponsoring for entry as “SHEAHINE NUSIHOR” and the spouse of the sponsored relative as Manuchar Leaguaifear. She lists the children of the sponsored relative as Soheela, aged 16, female and married, Soheeil, aged 20, male and married and Siameake, aged 18, male and single. Ms Fard conceded that she had told her aunt of her desire to come to Australia. She also said the reason she went to Cairns when she arrived in Australia was that her aunt was living there. She was not able to explain why her aunt would have provided information that Ms Fard had a son called Soheeil. She conceded that information in the form about her, and about Siameake, was correct. Roufia Soloky was not called to give evidence.

Documents containing information apparently supplied by Ms Fard’s daughter

62    There are two documents in evidence the information in which appears to have come from Ms Fard’s daughter Sohaila. The first is an application to visit Australia, dated 29 January 1990. The family name of the applicant is given as Laghaee-Far and the given name as Soheila. The date of birth is 22 May 1970. The purpose of the intended visit to Australia is “Visit Relatives”. In the space provided for details of the name, address and relationship of any relative are the words “Shahin Nuzihur. MOTHER”. In the space on the form designed for relatives or contacts residing in Australia, the applicant gives the name of her mother as “Nusihor SHAHIN” and the names of her brothers as “Soheil.and Seiamak, LAGHEI-FAR” and their respective ages as 23 and 20.

63    On 3 February 1993, Ms Fard’s daughter apparently lodged an application to remain permanently in Australia. On that day, she signed the declaration attached to the application form in front of someone who was apparently an officer of the Department in Cairns, by the name of L Scanlan. In the form, the applicant’s surname is spelt Laghaifar. Her given name is spelt Sohila. She gives as the names of her parents Shahine Nusihor and Manocher Laghaifar. She also gives the names of two brothers, Sohail Laghaifar and Siamak Laghaifar. The date of birth of Sohail is given as 24/12/68 and that of Siamak as 23/6/69. Both are described as Australian citizens. Ms Fard accepted that these were applications by her daughter and that most of the information in them was correct. She could give no explanation for her daughter giving what she said was incorrect information about having a brother with the name Soheil or Sohail. Although she currently lives in Melbourne, Ms Fard’s daughter was not called to give evidence.

Document containing information apparently supplied by Ms Fard’s son-in-law

64    Also in evidence is an application for migration to Australia by a partner, made by Gharib Javshin Nader. This application was signed on 11 February 2008. It was prepared with the assistance of a migration agent in North Queensland. The applicant applied on the basis that he was married to Soheyla Laghaifar. In a section of the form requiring him to give his partner’s family details, Mr Nader listed his partner’s parents as Manoucher Laghaifar and Shahin Dokht Nozohoor Mehrabad. As his partner’s brothers, Mr Nader listed “SOHAIL LAGHAIFAR”, with a birth date of 24/12/68, described as married, living in Australia and a citizen, and Siamak Laghaifar with a birth date 28/04/69, also described as married, living in Australia and a citizen. Also listed were two other sons of Manoucher Laghaifar by a marriage he entered into after his divorce from Ms Fard. Ms Fard accepted the accuracy of a considerable amount of information in the form, but said that Mr Nader had supplied incorrect information to the Department when he said that her daughter had a brother called Sohail. Mr Nader was not called to give evidence.

Documents containing information apparently supplied by Ms Fard’s husband

65    Ms Fard’s husband Mir Masoud Modareszadeh Esfahani Fard was called to give evidence about certain documents he had procured from Iran, which ultimately were not tendered in evidence. He was cross-examined about documents that are in evidence, which purport to contain information supplied by him. The first was Mr Fard’s application for migration to Australia by a partner. Mr Fard signed this document on 20 July 2006. The application shows the family name of Mr Fard’s partner as Nozohoor Mehrabad and her given names as Shahin Dokht. The name of her former husband is given as Manouchehr Laghaifar. The application said that there are three children from this former relationship. There are no names listed in that part of the form requiring the applicant to give details of the partner’s children, including children from previous marriages. When cross-examined as to how many children Ms Fard has, Mr Fard said she has two, named Siamak and Sohaila. When asked if she had a child by the name of Sohyle, Mr Fard’s answer was translated as “I haven’t heard and I don’t know.”

66    Also in evidence is a document purporting to record notes of an interview of Mr Fard, conducted on 13 November 2006 by one Wayne Tranulis. This document contains the statement “SP has 1 daughter (Soheila), 2 sons (Soheil and Siamak). SP’s children all live in Australia.” Mr Fard conceded that he had had an interview with an officer of the Department on or about 13 November 2006. When his attention was drawn to the reference to a son named Soheil, he said he could not remember vividly and he only knew Siamak and Soheila. When asked where he thought the reference to Soheil had come from he said he didn’t know. He said the interview took only 10 minutes, he mentioned Siamak and Soheila but did not remember having said the name of Soheil. He said that since he first met Ms Fard she had only two children, Siamak and Soheila. He did not know whether there had been another child born before that time. Ms Fard had never told him she had had three children.

Documents containing information apparently supplied by Ms Erez

67    In evidence are two statutory declarations made by Ms Erez at Cairns on 27 December 2002, the second containing particulars of what is said in the first. In both statutory declarations, Ms Erez uses the name Adi Laghaifar. They are detailed, and appear to be intended for use in relation to her application for a protection visa. In the first declaration, Ms Erez said:

On 13th August 2000, I met my husband (Sohail Laghaifar) in Sydney NSW.

She went on to describe how her relationship with her husband had developed, including their marriage on 8 November 2001. In a paragraph numbered 64, Ms Erez said “On 14th June 2002, Shahin (Sohail mother) returned to Australia from Iran to visit Sohail.” In the second statutory declaration, Ms Erez referred to paragraph 64 of the first and expanded on the information in it as follows:

Shahin Dokht Nozohoor Mehrabad (formerly Shahine Nusihor) is Sohail’s Mother. she’s born on 9th April 1947, Place of birth, Tabriz-Iran.

Shahin Dokht Nozohoor Mehrabad is an Australian Citizen and the Citizenship was acquired on 16th August 1990.

As I have said in [4] above, Ms Erez was present in Court during the trial and assisted counsel for Ms Fard in his conduct of the trial. In the course of the trial, counsel for Ms Fard indicated that Ms Erez would be called to give evidence. She was not called.

Documents containing information apparently supplied by Mr Qeumars

68    In [36] above, I have referred to an application for a grant of Australian Citizenship, dated 1 January 1992. This was apparently the document on the basis of which the certificate of citizenship sent to Mr Qeumars was issued. Mr Qeumars denied making the application and denied having the capacity to make it at the relevant time. He conceded that a number of the details in it as to his history, addresses and occupation were accurate. The application is made in the name of a person with the family name Laghaifar and the given name Sohail. In the space on the form that requires the inclusion of a name shown in a travel document on first entry to Australia appears the family name Lagheyefar and the given name Sohyle. These were the spellings used in the travel document held in the Department’s records as the document used by Mr Qeumars to travel to Australia, in lieu of a passport. The applicant’s mother’s maiden family name is given as Nusihor. Details of the applicant’s parents show the father’s family name as Laghaifar and given name as Manoochehr and the mother’s family name as Nusihor and given name as Shahine.

69    Also tendered in evidence from the files of the Department is a statement, apparently given to the Department of Social Security in respect of a claim for sickness benefit. Mr Qeumars denied making this statement and also said the address given in it was incorrect. The statement reads as follows:

My name and date of birth were wrong on my Document for Travel to Australia. My name should be spelt SOHAIL LAGHAIFAR. My date of birth should be 24/12/68. As I am a refugee, I have no other documents of identity. I am going to take my Document for Travel to Australia to the Dept of Immigration to have it corrected. I will bring it to Social Security after this has been done. I give permission for my mother Shahine Nusihor to act on my behalf in any of my Social Security dealings. I have had this statement interpretted [sic] for me by my mother and I believe it to be true and correct.

The date of the statement is 2 January 1990.

70    The files of the Department also include an undated letter addressed to the Department, for the attention of Michael Scrafton. The letter purports to be by, and to be signed by, Mr Sohail Laghaifar. In four pages of typescript, it gives quite a detailed account of escape from Iran into Turkey and of subsequent events, including arrival in Australia on 27 December 1989 from Bulgaria. The essence of the letter is a complaint about delays in the grant of citizenship to the writer. The letter makes one reference to “my mother, Ms Shahine Nusihor.” It contains information that the writer’s mother lived in Cairns. It refers to a lady called Wendy at Cairns Immigration. It refers to a proposal to grant citizenship with an incorrect name and birth date. It relies on “Medicare card , Tax File Number , and driver’s licence with my real name and D.O.B on them.” The writer says he was engaged to be married to an Australian woman in March 1993 and to the fact that the marriage took place “on the 21st of March this year, and I am pleased to say MY name and birthdate are on the certificate.”

Documents passing between officers of the Department

71    Finally, tendered from the files of the Department, are several communications from and to the Australian Embassy in Ankara. The first is dated 28 August 1987. It is an invitation to attend an interview at the Australian Embassy in Ankara on 1 October 1987. It is a printed document with spaces for adding handwritten information. It is addressed “Dear Shahine Nusihor”. It informs the reader that the letter is in connection with her application to enter Australia. It includes the passage:

You should bring with you the following members of your family. It is important that all members of your family mentioned below attend for interview with you whether it is intended that they will accompany you to Australia or not.

In the spaces below this statement appear the handwritten names “Soheil” and “Siameak”.

72    A cable bearing a stamp showing it to have been received by the Australian Embassy in Ankara on 5 October 1987 is headed “MIGRANT ENTRY - SHEAHINE NUSIHOR”. The text of the cable is as follows:

FROM IMMIGRATION CAIRNS

FURTHER TO MY 1.7.87 MEMO. MADAM NUSIHOR HAS BEEN SPONSORED BY HER AUNT MRS ROOFIA SOLOUKY UNDER SHP. INCLUDED IN APPLICATION ARE P/A’S 1) SON SOHEEIL LEAGUAIFEAR (B 1967), 2) SON SIAMEAKE LEAGUAIFEAR (B 1969) AND 3) DAUGHTER-IN-LAW SHEAHLA AARZEANDE (B 1963). SPONSOR STATES NUSIHOR HAS BEEN INFORMED BY YOU THAT HER APPLICATION HAS BEEN APPROVED BUT HER TWO SONS AND DAUGHTER- IN-LAW HAVE BEEN REFUSED MIGRANT ENTRY. THESE THREE HAVE NOW BEEN INFORMED BY TURKISH POLICE THEY HAVE TO LEAVE TURKEY (AND RETURN TO IRAN). THEY DO NOT WANT TO RETURN TO IRAN FOR FEAR OF RELIGIOUS PERSECUTION AS THEY ARE OF BAHAI FAITH.

PLS CABLE SITREP SO WE CAN COUNSEL SPONSOR.

73    What appears to be a reply to this cable, sent on 5 October 1987 and said to relate to “SHAHINE NUSIHOR”, contains the following:

2.    INFORMATION PROVIDED TO YOU IS SUBSTANTIALLY INCORRECT. A/N WAS I/V’D ON 01.10.87 AND PROVISIONALLY ACCEPTED. HER SONS AND DAUGHTER-IN-LAW WERE THEN REQUESTED TO OBTAIN SEPARATE M681’S SINCE NONE OF THEM ARE DEPENDENT ON A/N. IT IS ACKNOWLEDGED THAT THEY ARE TRAVELLING TOGETHER BUT THIS IN NO WAY CONSTITUTES DEPENDENCY.

3.    A/N AND RELATIVES WERE CAREFULLY COUNSELLED THAT WE NEED NEW M681’S FOR THE SONS AND DAUGHTER-IN-LAW. WE PROMISED TO I/V THEM SEPARATELY ON THE SAME DAY THAT M681’S WERE LODGED HERE. WE STATED THAT IF THEY CONTACTED SPONSOR SAME DAY THE FORMS WOULD ARRIVE PERHAPS IN 10/10 DAYS. WE DID NOT/NOT REFUSE MIGRANT ENTRY AS SPONSOR SEEMS TO HAVE MISINFORMED YOU.

4.    AS TO THE CLAIM THAT THE TURKISH POLICE HAVE ASKED THEM TO LEAVE, WE HAVE NO WAY OF ASSESSING THIS CLAIM BUT AT I/V WE SIGHTED VALID TURKISH TEMP. RES. CARDS (WHICH ARE USUALLY RENEWABLE AT 3 MONTH INTERVALS). WE ALSO SIGHTEDUNHCR [sic] BONA-FIDE REFUGEE IDENTITY LETTER WHICH IN EVERY CASE TO DATE HAS GUARANTEED EXTENSION OF TURKISH T.R. CARD.

5.    WE BELIEVE THAT CLAIMS BY SPONSOR TO THE EFFECT THAT A/N AND RELATIVES ARE BEING FORCED TO RETURN TO IRAN ARE GREATLY EXAGGERATED.

6.    WE ARE PROCESSING A/N CASE WITH USUAL CAT 421 SPEED AND WILL DO LIKEWISE WITH HER RELATIVES WHEN THEY DECIDE TO APPLY IN THEIR OWN RIGHT.

74    There is a further invitation to an interview, dated 4 January 1988, addressed “Dear S. Nusihor”. This document is in the same form as that referred to in [71] above. The time and date of the interview, which are handwritten, are different (the interview is scheduled for 18 February 1988). In the spaces for the names of family members, there are three names, “Soheil”, “Siamaek” and “Shehla”.

75    A cable from Canberra dated 31 March 1988 was addressed to “SINGAPORE” and also to Ankara, where it was received on the same date. It relates to “VISA APPLICANT - SHEAHINE NUSIHOR” and reads as follows:

FROM IMMIGRATION CAIRNS

    WE UNDERSTAND THAT MRS NUSIHOR IS IN SINGAPORE FOR FOUR DAYS AND MAY APPLY TO YOU FOR A VISITOR OR OTHER VISA. RECENTLY SHE HAS BEEN RESIDING IN TURKEY WHERE SHE HOLDS A TEMP. RES. CARD AND IS REGISTERED WITH UNHCR. SHE AND HER TWO SONS (SOHEEIL LEAGUAIFEAR (BORN 1967) AND SIAMEAKE LEAEUAIFEAR (BORN 1969) HAVE BEEN SPONSORED UNDER SHP BY HER AUNT MRS ROOFIA SOLOUKY OF CAIRNS. SUGGEST YOU CONSIDER CAREFULLY ANY VISA APPLICATION RECEIVED FROM THIS FAMILY.

76    The reply to this cable (and to another of 11 April 1988 from Kuala Lumpur, which is not in evidence) is dated 11 April 1988. It contains the following:

2.    FOLLOWING CAT 421 I/V ON 01.10.87 A/N WAS APPROVED SUBJECT TO HEALTH CHECKS AND A/N PROVIDING DOCUMENTARY EVIDENCE FROM THE NATIONAL SPIRITUAL ASSEMBLY OF BAHAI’IS IN TURKEY OF HER BONA FIDE BAHAI’I STATUS. AT I/V ON 01.10.87 AND ON 18.02.88 THIS REQUIREMENT WAS STRESSED REPEATEDLY. A/N STATED SHE WOULD OBTAIN THE NECESSARY EVIDENCE. (THIS EVIDENCE IS ESSENTIAL GIVEN THE WIDELY HELD BELIEF AMONGST IRANIANS IN TURKEY THAT AUSTRALIA “ALWAYS” ACCEPTS BAHAI’IS BUT “NOT ALWAYS” MUSLIMS. AT THIS STAGE WE HAVE NO/NO EVIDENCE TO SUBSTANTIATE HER CLAIMS TO BE A BAHAI’I.

3.    A/N LEFT TURKEY WHILE HER CASE WAS ACTIVE - ON RECEIPT OF N.S.A. LETTER HER VISA WOULD HAVE BEEN ISSUED. SHE AT NO TIME ADVISED US OF HER DEPARTURE OR SOUGHT OUR ASSISTANCE IN ANY WAY. IF HER CLAIM THAT HER TURKISH VISA EXPIRED IS TRUE THEN WE ARE AT A LOSS TO UNDERSTAND WHY SHE DID NOT SEEK OUR ASSISTANCE TO EXTEND IT.

4.    WE ARE OF THE OPINION THAT SHE HAS LEFT TURKEY IN AN ATTEMPT TO GET A VISA ALONG THE WAY SOMEWHERE BY APPLYING PRESSURE ON ANOTHER POST.

5.    NO/NO VISA SHOULD BE GRANTED UNTIL SHE PROVIDES DOC. EVIDENCE OF HER BAHAI’I STATUS. IF SHE CANNOT THEN THE WHOLE BASIS OF HER SHP CLAIM MUST BE IN DOUBT.

6.    PLEASE NOTE : A/N ALSO HAS A SON SOHEIL LAGHAIFAR (BORN 1967) AND A DAUGHTER-IN-LAW SHAHLAR ABZANDE ( SOHEIL’S WIFE). THEY ORIGINALLY APPLIED WITH HER BUT WERE ASSESSED AS NON-DEPENDENT AND ASKED TO APPLY SEPARATELY. THEY WERE CALLED FOR I/V ON 18.02.88. A/N ARRIVED ON 18.02.88 TO STATE THEY HAD GONE INTO “HIDING” AND THAT SHE HAD NO IDEA OF THEIR WHEREABOUTS. PERHAPS THEY ARE WITH HER IN K.L.?

77    On 12 April 1988, a cable was sent from Ankara to Kuala Lumpur and Singapore, relating to “NUSIHOR, SHAHINE”. The cable contains the following:

UNHCR ANKARA HAS CONTACTED US RE THIS CASE. THEY HAVE PASSED ON INFO FROM UNHCR KUALA-LUMPUR TO THE EFFECT THAT A/N IS TRAVELLING WITH A “HUSBAND” ON A COMMON PASSPORT.

2.    AT I/V on 01.10.87 AND IN M47 A/N GAVE MARITAL STATUS AS DIVORCED. SHE STATED THAT SHE HAD NO DIVORCE CERT. BECAUSE IRANIAN COURTS DO NOT GIVE THEM TO BAHAI’IS. SHE STATED THAT HER TWO SONS SOHEIL LEAGHAIFEAR AND SIAMEAK LEAGHAIFEAR WERE BOTH FROM HER FIRST AND ONLY MARRIAGE. HER EX-HUSBAND’S NAME WAS GIVEN AS MANUCHAR LEAGHAIFEAR. HIS APPROX AGE IS BELIEVED TO BE 40-45 IE OLDER THAN PA WITH 2 SONS AGED 20 AND 19.

3.    FOR INFO., “,MARITAL” [sic] DETAILS GIVEN BY PA CLEARLY CAST FURTHER DOUBTS UPON HER CLAIMS.

78    The last of the cables tendered in evidence was received by the Australian Embassy in Ankara on 15 April 1988. It is from Canberra to both Kuala Lumpur and Ankara and relates to “VISA APPLICANT – SHEAHINE NUSIHOR”. It reads:

FROM IMMIGRATION CAIRNS

WE UNDERSTAND THAT MRS NUSIHOR IS CURRENTLY IN KUALA LUMPUR AND STAYING AT RM 7, HOTEL MALAYSIA. SHE MAY APPLY TO YOU FOR A VISITOR OR OTHER VISA. UNTIL RECENTLY SHE HAS BEEN RESIDING IN TURKEY WHERE SHE HELD A TEMP RES CARD AND WAS REGISTERED WITH UNHCR. SHE AND HER TWO SONS (SOHEEIL LEAFUAIFEAR BORN 1967 AND SIAMEAKE LEAEUAIFEAR BORN 1969) HAVE BEEN SPONSORED UNDER SHP BY HER AUNT MRS ROOFIA SOLOUKY OF CAIRNS. SUGGEST YOU CONSIDER CAREFULLY ANY VISA APPLICATION FROM THIS FAMILY.

79    Ms Fard was unable to provide any explanation for what she said was the incorrect information in these communications about her having a son called Soheeil, Soheil or Sohail. She conceded that other information in the communications was accurate. She also denied attending any interview at the Australian Embassy in Ankara, or being asked by the Australian Embassy in Ankara to provide further material while she was in Turkey. She denied being in contact with her aunt in relation to sponsorship.

The determination of the case

80    Counsel for Ms Fard submitted that it was only necessary for Ms Fard to establish two ultimate facts for her to be entitled to the orders she sought. The first of those facts is that she does not have a son bearing the name in question (in whatever spelling). The second fact is that the Minister holds documents that contain information to the effect that Ms Fard does have a son who bears that name. Leaving aside the technical question whether documents held in the records of the Department are held by the Minister, the second of these facts is well-established by the evidence. The numerous documents to which I have referred earlier in these reasons for judgment, tendered from the records of the Department and containing information to the effect that Ms Fard does have a son who bears the name in question, establish that fact beyond doubt. The establishment of the first fact is attended by greater difficulty. The documents themselves constitute evidence that contradicts Ms Fard’s own evidence that she has never had a living son called Sohail (or any variant of the spelling of that name). The documents have been admitted into evidence. Many of them have been tendered by counsel for Ms Fard. No objection has been taken to any of them on the basis that they were inadmissible by virtue of s 59(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”), the statutory representation of the rule against hearsay evidence. If such objections had been taken, many of the documents would have been admissible under the business records exception found in s 69 of the Evidence Act.

81    At one stage during the trial, counsel for Ms Fard presented the case as a dichotomy: either the information in the documents is correct or it is false. It is difficult to argue with this characterisation of the dispute. This being a civil case, it must be determined on the application of the standard of proof prescribed by s 140(1) of the Evidence Act, namely satisfaction on the balance of probabilities. In applying that standard of proof, the Court is required to take into account the factors specified in s 140(2) of the Evidence Act:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

82    It is also clear that the onus of proof of the falsity of the documents is borne by Ms Fard. Counsel for Ms Fard sought to take advantage of the fact that the Minister had called no evidence. He argued that the evidence of Ms Fard and her other witnesses called for an explanation on the part of those in the Department who had been responsible for the creation of documents as to how the inaccuracies in those documents came about. I reject this argument. Most of the documents tendered in evidence appear not to have been created by officers of the Department, but to have been received by them. In relation to documents that were apparently created within the Department, there was no inquiry made as to the availability to give evidence of any of those officers. Particularly in the case of documents more than 20 years old, it is not to be supposed that those who were responsible for their creation would be readily available to give evidence about those documents.

83    Counsel for Ms Fard also argued that the Minister ought to have called Ms Fard’s aunt Roofia Solouky, Ms Fard’s daughter Sohaila and Ms Fard’s son-in-law Mr Nader to explain why it was that documents for which they had apparently been responsible contained the allegedly false information that Sohail was Ms Fard’s son. I do not accept this submission either. Those three persons are members of the family of Ms Fard. Two of them live in Melbourne. If they had not supplied the information in documents they appear to have signed, or if they did not in fact sign those documents, or if they were mistaken in supplying the information, such evidence would have been a significant part of Ms Fard’s case as to the falsity of the documents. It was not for the Minister to assist Ms Fard to prove that falsity. It was for Ms Fard to call those persons to give such evidence, if they were capable of doing so, or to provide an explanation for her failure to do so. No such explanation was forthcoming. I draw the inference that any evidence Roofia Solouky, Sohaila and Mr Nader might have given would not have assisted Ms Fard’s case.

84    I also draw the inference that the failure of counsel for Ms Fard to call Ms Erez to give evidence was because her evidence, if truthful, would not have assisted Ms Fard’s case. If Ms Erez had been acting under any misapprehension when she made her two statutory declarations described in [67] above, in the name of Adi Laghaifar, referring to her husband Sohail Laghaifar and his mother Shahin Dokht Nozohoor Mehrabad (formerly Shahine Nusihor), or if there had been any other reason why she gave false information at that time, she could have said so very easily.

85    The allegation that details appearing in a number of documents are consistently false, and the lack of any suggestion in the evidence as to how that falsity came about, prompts speculation as to what might have occurred. If a false name and incorrect information to the effect that the person bearing that name was and is a son of Ms Fard has been inserted into a number of documents, some attention must be given to the question how and why this might have occurred. Some person or persons must have entered the information in those documents, whether accidentally, negligently or deliberately. It must be acknowledged that, in the process of keeping records, there is always the possibility that an initial error on the part of one person can be repeated by others in successive records, each made in reliance on the preceding records, so that the initial error is carried through the series. This is unlikely to have occurred in the present case. As I have said, many of the documents appear to have been received by, rather than to have been created by, any officer of the Department. Some that have been created by officers appear to have been so created on information supplied by people outside the Department. The name of a person and the designation of that person as a son of Ms Fard are very specific pieces of information, which would hardly be included accidentally when the information used in the creation of a document comes from another person.

86    Counsel for the applicant was driven to suggesting that all of the allegedly false information to the effect that Ms Fard had a son named Sohail Laghaifar (by whatever spelling) had been placed deliberately in the documents as part of a plan. The plan is said to have involved rescuing Mr Qeumars from his imprisonment and torture in Bulgaria, bringing him to Australia without his consent (which he was said not to have been in a condition to give) and forcing upon him a false identity, in order to prevent him from leaving Australia. This hypothesis must be tested against the evidence before being accepted.

87    When original documents have been tendered, it is plain to see that many of them have the appearance of being aged. There was no attempt to argue that the execution of the suggested plan involved wholesale retrospective reconstruction of the records. Any attempt to substitute for documents kept in the records new documents containing additional information would be readily detectible from the appearance of the documents. The fact that some of the allegedly false entries appear in documents purporting to have been created well before Mr Qeumars arrived in Australia suggests either that the plan was hatched from a very early time, when Ms Fard was in Turkey, or that, at or about the time Mr Qeumars came to Australia, there was a retrospective reconstruction of the record, followed by a succession of falsifications over the years since that time. In the latter case, the fact of the reconstruction might not now be so obvious from the appearance of the documents.

88    There is no doubt that the ongoing production of false documents, either from the time when Ms Fard was in Turkey or from the time when Mr Qeumars came to Australia, would have to be the work of more than one person. Documents created or received in different places would have to be the result of a coordinated effort, which would depend upon a number of people being given, and accepting and carrying out, instructions to make the same or similar false entries in a number of documents. The execution of the suggested plan in this way would have required the coordination of a number of people in Ankara, Singapore, Kuala Lumpur and Cairns, and perhaps in other places, over several years.

89    To conclude on the balance of probabilities that such a scheme existed (bearing in mind the gravity of such an allegation) would prompt speculation as to the reason for its existence. No such reason comes to mind. An elaborate scheme to bring a person to Australia and prevent him from leaving would be expected to have a justification. It is hard to see that the Australian Government (whether or not in conjunction with the British Government, as was suggested in argument) would have any interest in dealing with any person in that way, even if the person were to be a member of a former royal family. It must be remembered that the royal family in question has been long since deposed and is hardly relevant to the current circumstances in Iran. If a member of such a family, fearing assassination attempts (as Mr Qeumars says he does) were to seek the protection of the Australian Government, and such protection were to involve the creation of a false identity for that person, it would be possible to understand that such a request could be granted. Its granting would not necessarily involve the creation of a false identity linking the person making the request with a real person living in Australia, who did not wish to be so involved. A false identity could be truly false, so that its falsity could not be ascertained by anyone pursuing the person concerned because the other person involved made public her concerns about being involved. This case is not one in which Mr Qeumars has made any request of the Australian Government for assistance or the provision of a false identity. His evidence is that he is resistant to the attribution to him of the name Sohail Laghaifar. Mr Qeumars proclaims publicly that he is a scion of the family of the Shah deposed in 1925. If there is anyone who, for that reason, seeks to assassinate him, or to harm him, he makes himself a target. A scheme to impose on such a person a false identity is a highly unlikely event.

90    Even on the assumption that there was a scheme to bring Mr Qeumars to Australia against his will, it is very difficult to see that the scheme involves keeping him here against his will. For the person holding the officer of the Minister at the relevant time (through an officer of his Department) to grant to Mr Qeumars citizenship in the name of Sohail Laghaifar is inconsistent with such a purpose. The grant of citizenship would enable Mr Qeumars to apply for a passport in that name. Unless some good reason were to be found for refusing to grant him a passport, a passport would be granted. Mr Qeumars could then use it to travel wherever he pleased. If he wished to represent himself as not being Sohail Laghaifar, but as being in truth the royal person he claims to be, he would be at liberty to do so, and to explain how it came to be that he was travelling with a passport in another name. The opening up of such a possibility by the grant of citizenship would be a strange way to go about preventing a person from leaving Australia.

91    The existence of a plan of the kind postulated, founded upon the reason advanced for it, is something that I do not find on the balance of probabilities on the evidence before me.

92    Counsel for Ms Fard relied heavily on numerous errors and inconsistencies that he said are to be found in the documents, as evidence of their falsity. In particular, he drew attention to variations in the spelling of the name attributed to Mr Qeumars and to variations in the dates, particularly the dates of birth attributed to Ms Fard’s first son. Little or no weight can be attached to variations in spelling. In the absence of an accepted orthography for rendering the sounds represented by the symbols used in writing the Farsi language (such as now exists in relation to the Chinese language), attempts to reproduce the name of a person written in Farsi characters, or pronounced in the Farsi language, will almost inevitably produce variations in spelling. There is sufficient similarity in the way that the various names are spelt in the present case, particularly the name attributed to Mr Qeumars, for me to find that different spellings are not to be regarded as evidence of falsification. The case is slightly stronger in relation to dates. The frequent use of 24 December 1968 as the recognised date of birth of Sohail Laghaifar is obviously incorrect, if he is the brother of Siamak Laghaifar and (as appears to be accepted) Siamak was born in May 1969. Two things may be said about this. One is that none of the documents that purport to contain information supplied by Ms Fard herself appears to contain any reference to the date 24 December 1968 as the birth date of Sohail. That date appears to have come into use at some time later than those documents are dated. My second comment bears some similarity to my comment about variations in spelling. Attempts to translate from the calendar used in Iran to the Gregorian calendar used in Australia can lead easily to error. At least to some extent, this is the likely explanation for variations in dates.

93    To the extent to which reliance was placed on other details in documents that were said to be erroneous or inconsistent, much of the argument depends upon the acceptance of the evidence of Ms Fard and, in some instances, Mr Qeumars. For reasons that I give below, I am reluctant to accept the whole of their evidence.

94     It is inherently unlikely that anyone who had been given a false identity against his will would make such consistent use of that identity as Mr Qeumars has of the name Sohail Laghaifar. His strident attempts to proclaim his alleged royal heritage were not apparent in his early years in Australia. His explanations as to how he came to be in possession of the various documents and cards evidencing the name Sohail Laghaifar cannot be accepted. His assumption of the identity of Qeumars came late in the piece, which supports the proposition that it is a pretence.

95    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.

96    I realise that this is a most grave finding to make. It involves a finding that both Ms Fard and Mr Qeumars have lied in the course of their evidence to the Court. It is not a finding that I would make readily. I am driven to make it for three reasons. The first is my views expressed above as to the difficulty of accepting the case put on behalf of Ms Fard. The second reason is the failure to call witnesses who appear to have provided information that is in documents Ms Fard contends are false, and who would have been available to be called on behalf of Ms Fard. The third reason is the way in which both Ms Fard and Mr Qeumars gave their evidence.

97    Each of Ms Fard and Mr Qeumars frequently avoided giving answers responsive to the terms of the questions they had been asked. It was particularly noticeable that this occurred in relation to questions that sought answers that would have been inconsistent with the case put on behalf of Ms Fard. Often, instead of answering a question, each would repeat an assertion already made that she or he wished me to accept. Even after repeated requests to answer questions in the terms that had been put, this form of evasion continued. There were instances when the making of the simplest and most obvious admissions was resisted for lengthy periods. I do not rely on any aspect of the appearance or demeanour of either Ms Fard or Mr Qeumars in making my judgments about their truthfulness. It is now well understood that appearance and demeanour are very unreliable indicators of veracity, especially in cases in which the cultural background of the witnesses concerned is different from that of the judge. I rely only on the evident reluctance of Ms Fard and Ms Qeumars to address squarely any question the truthful answer to which might be thought to be inconsistent with the line they wished to have me accept. The other witness, Mr Fard, was more circumspect in giving his answers. He was less inclined to commit himself to definite propositions, and more inclined to resort to lack of knowledge.

98    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.

Conclusion

99    For the reason that Ms Fard has failed to show any viable cause of action that would entitle her to the orders she seeks, and for the reason that she has failed to prove the facts on which she has sought to rely, her application must be dismissed.

100    No reason was advanced, and none appears from the circumstances of the case, why the usual principle, that costs follow the event, should not be applied. Accordingly, Ms Fard should be ordered to pay the Minister’s costs of the proceeding.

Associate:

Dated:    16 May 2013