Federal Court of Australia

Qajar v Australian Human Rights Commission [2022] FCA 189

ORDERS

THE COURT ORDERS THAT:

1.    Leave to issue the subpoenas lodged on 2 March 2022 is refused.

2.    The Notices to Produce delivered by the applicant to the second and third respondents be set aside.

3.    The interlocutory application lodged on 2 March 2022 is dismissed.

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

REASONS FOR JUDGMENT

THOMAS J:

1    The applicant sought to review a decision of the first respondent made on 11 August 2021. Pursuant to s 20(2)(c)(iib) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRCA), the first respondent decided not to continue to inquire into a complaint made by the applicant. This decision was taken on the basis the Commission was satisfied that there was no reasonable prospect of the matter being settled by conciliation.

2    The applicant also sought relief against the second respondent and the third respondent asserting essentially that the second and third respondents detained the applicant, and/or refused to give him lawful status as a non-citizen to enter and remain in Australia. The applicant asserts that the failure and/or refusal prevented the applicant from applying for a visa to travel outside of Australia and consequently interfered with his freedom and liberty to leave Australia.

3    The applicant issued Notices to Produce and sought leave to issue a subpoena seeking:

(1)    the application for travel to Australia, or copy thereof, for which Document for Travel to Australia 032105 in the name of Sohyle Lagheyefar, born 12 December 1966, visa number V619<00309C K4551 W303DU, was issued in Sofia 11 December 1989;

(2)    the documents provided as proof of identity, or copies thereof, identifying the person for which Document for Travel to Australia 032105 in the name of Sohyle Lagheyefar born 12 December 1966, visa number V619<00309C K4551 W303DU, was issued in Sofia 11 December 1989.

4    The applicant sought interlocutory orders as follows:

(a)    exist or do not exist;

(b)    if they exist, when they were last in their possession or under their control; and

(c)    providing details of whose possession and control they have been given.

5    A Notice to Produce has the same coercive effect as a subpoena for production. Compliance with a Notice to Produce is mandatory. In this case, it lacks efficiency for a subpoena to be issued to a party to the proceedings where a Notice to Produce has already been given to that party for identical documents. On that basis, there can be no utility in issuing a subpoena to the second and third respondents when the same documents have been the subject of a Notice to Produce.

6    In relation to the contents of the Notice to Produce, a ground for setting aside a Notice to Produce is lack of apparent relevance. The test of relevance is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. I have concluded that the documents are not reasonably likely to add to the relevant evidence.

7    Notably, those documents referred to in the Notices to Produce were not before the decision-makers (see Chandra v Webber (2010) 270 ALR 393; [2010] FCA 705 at 403, [40]).

8    The challenge with respect to the decision by the Human Rights Commission made pursuant to s 20(2)(c)(iib) turns upon whether “the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation”.

9    In this case, the documents which were the subject of the subpoena and the Notices to Produce have no apparent relevance to that question and are not reasonably likely to add to the relevant evidence.

10    The claim pursuant to the Judiciary Act 1903 (Cth) turns upon allegations by the applicant that he is prevented “from applying for a visa to travel outside of Australia” which, it is asserted, consequently interfered with his freedom and liberty to leave Australia, contrary to cll 2 and 4 of Art 12 of the AHRCA. The grounds referred to the applicant as being “subjected to arbitrary detention”. Counsel for the second and third respondents pointed to the fact that the respondents’ position is that the applicant is a citizen and under no impediment to travel and has not been detained. The question relates to whether the applicant is currently relevantly detained. The question is one of an administrative act of the Executive. The significant factor is, according to the second respondent, the citizenship of the applicant. The documents which are the subject of the Notices to Produce precede the issuing of a temporary visa allowing travel to Australia in December 1989. The certificate of citizenship was issued in November 1993. I have concluded that the documents which are the subject of the subpoena and Notices to Produce have no apparent relevance to this issue and so are not reasonably likely to add to the relevant evidence.

11    Consequent to the reasons above, the orders are that:

Associate:    

Dated:    9 March 2022