Federal Court of Australia

Qajar v Australian Human Rights Commission [2022] FCA 1339

ORDERS

THE COURT ORDERS THAT:

1.    The application for recusal filed on 25 August 2022 (recusal application) be dismissed.

2.    The application for leave to appeal filed on 15 March 2022 (leave to appeal application) be dismissed.

3.    The applicant pay the costs of the second and third respondents of and incidental to the recusal application and the leave to appeal application, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J

1    Before the Court is an application (filed on 15 March 2022) for leave to appeal a decision of a single Judge of this Court (primary Judge) delivered on 7 March 2022 in Qajar v Australian Human Rights Commission [2022] FCA 189 (primary decision). Also before the Court is an application for my recusal in hearing and determining the application for leave to appeal, filed by the applicant on 25 August 2022, on the basis of apprehended bias (recusal application).

2    Both the recusal application and the application for leave to appeal were listed for hearing before me on 7 September 2022. I dismissed the recusal application at that hearing, and stated that I would deliver my reasons at a later date.

3    These are those reasons.

4    I also consider that the application for leave to appeal should be dismissed. My reasons for so finding also follow.

recusal application

5    In his recusal application, the applicant sought the following relief:

The Applicant seeks orders from the court directing that;

Her Honour Justice Collier disqualify herself from hearing or determining any further proceedings in relation to this matter QUD70/2022 on the basis that Her Honour has already made determinations concerning the authenticity of Document for Travel to Australia 032105, “the visa”, during the determinations of;

i)    an interlocutory application Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224 13 October 2016; and

ii)    Fard v Secretary, Department of Immigration and Border Protection [2016] FCAFC 155;

and these facts and circumstances give rise to a reasonable apprehension of bias, particularly, that Her Honour Justice Collier might not bring an impartial and unprejudiced mind to the resolution of the questions raised in this matter QUD70/2022, as they relate directly to the authenticity of “the visa”

6    In earlier proceedings in the Federal Court in ACD39/2016, Ms Fard appealed against a decision of the Administrative Appeals Tribunal. The Tribunal had summarily dismissed Ms Fard’s application under the Freedom of Information Act 1982 (Cth) seeking amendment of records of the Department of Immigration and Border Protection (Department) containing her personal information, which records she claimed were incorrect. Relevantly, the information Ms Fard wished to have corrected was information that she was the mother of a man named Mr Sohail Laghaifar (also known as Mr Qeumars).

7    At first instance, a Judge of the Federal Court dismissed Ms Fard’s appeal against the Tribunal decision. In particular, the Judge in the earlier Fard proceeding had found that the failure of the Department to provide information or material concerning the meaning of relevant visa codes did not give rise to procedural unfairness, and that no practical injustice had been established. The Judge also found that the Tribunal had considered the “fresh evidence” tendered by the Ms Fard in conjunction with the other material before it.

8    Ms Fard appealed the decision of the Judge in that case to the Full Court.

9    The Full Court Bench constituted to hear the appeal comprised Katzmann and Farrell JJ and myself.

10    While the appeal was pending, Ms Fard filed interlocutory applications seeking the issue of subpoenas, production of new documents, the appearance of witnesses and the admission of fresh evidence. One of the persons whom Ms Fard sought subpoenaed was Mr Sohail Laghaifar (also known as Mr Qeumars).

11    It appears that Mr Sohail Laghaifar or Mr Qeumars is the applicant in the proceedings presently before me.

12    Returning to the proceedings in Fard, I ordered that the interlocutory applications of Ms Fard be argued before me prior to the hearing by the Full Court.

13    After hearing argument, I refused Ms Fard the issue of the subpoena to Mr Sohail Laghaifar (or Mr Qeumars) and dismissed her interlocutory applications: Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224. Relevantly I observed:

39.    Further, as the respondent correctly submits, under r 36.57 of the Rules the appellant must describe the ground(s) of appeal to which the application for fresh evidence relates. In this case the appellant seeks to rely on only one ground of appeal, namely that the decision of the primary Judge was unjust and unfair. It may be that the evidence upon which the appellant now seeks to rely is relevant. Indeed, this evidence may be such that the Tribunal could have formed a different view had the Tribunal had the advantage of receiving it at the relevant time. This, however, is simply speculation. Indeed, I note that:

•    It is simply not reasonable to suggest that the existence of evidence which was not before the primary Judge could in any way have resulted in that decision being “unjust and unfair”. I make this observation in light of the apparent circumstance that the appellant chose not to press this evidence for consideration by the primary Judge.

•    It is not the role of either the primary Judge or this Court to conduct a merits review of the decision of the Tribunal. The tenor of the appellant’s case in respect of this evidence is that she is inviting the Court to undertake such an impermissible review.

•    As the respondent correctly submitted, Sami [2013] FCAFC 128 is authority for the proposition that the Court must have regard to the limits of its jurisdiction in reviewing decisions of the Tribunal in assessing the potential relevance and weight of the fresh evidence sought to be adduced.

        (emphasis added)

14    It follows that, in that interlocutory decision, it was unnecessary for me to “[make] determinations concerning the authenticity of Document for Travel to Australia 032105, “the visa”. The authenticity of any visa was not the subject of the proceedings before me.

15    The subsequent decision of the Full Court in Fard v Secretary, Department of Immigration and Border Protection [2016] FCAFC 155 was unanimous. The Full Court dismissed the appeal by Ms Fard. Relevantly the Court observed at [21]:

We have summarised, in some detail, the reasons of the primary Judge. We are unable to identify any basis on which his Honour’s reasons could be described as “unjust and unfair”, as claimed by the appellant in her notice of appeal. On the contrary, the reasons demonstrate that his Honour gave thorough and thoughtful attention to the application before him, and that his decision to dismiss the appeal was correct for the reasons he gave.

16    The Court continued:

23.    First, and notwithstanding the generality of the terms in which the ground of appeal before us is framed, it is clear from both written and oral submissions of the appellant that her fundamental complaint is that the Department did not provide her with information concerning “visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive”. The appellant submitted that these “visa codes” related to the gender of visa recipients, and that the “female” visa code was K4551. The appellant submitted that the use of the “female” visa code in respect of the visa issued on 11 December 1989 to the man the Department alleged was her son indicated that the Department had erred in identifying him. The appellant claimed that this indicated a fundamental error in the records of the Department, supporting her application for correction of the Department’s records.

24.    During the course of the hearing of the appeal however it became apparent that the so-called “visa codes K4551 and K4552” were, in fact, not referable to gender, but were classes of visas prescribed by regulations made under the Migration Act and this information was publicly available…

17    After further discussion, the Court observed:

26.    If this is the case – and we have no reason to doubt this publicly available information – it is likely that the appellant is incorrect in her submission that “visa codes K4551 and K4552 as they applied from 1984 to 1990 inclusive” were gender-related. In that light, while we query the wisdom of the Department’s decision not to provide the appellant with information concerning visa sub-classes K4551 and K4552, we are unable to see how the provision of that information by the Department would have assisted the appellant’s case before the Tribunal.

18    An issue in the appeal concerned whether a proper response had been made by the Department to Ms Fard. The Court found:

35.    We find no fault in his Honour’s reasoning. The letter of 22 July 2015 constituted “a response to the submissions of the Applicant dated 14 July 2015, in particular paragraphs a) ...”. The response did not satisfy the appellant, but that does not mean that it was not “a response” within the meaning of the Tribunal’s directions.

…

37.    It follows that even if the information in respect of “visa codes K4551 and K4552” was supportive of the proposition advanced by the appellant concerning alleged forgery of travel documentation (which, in our view, it was not), the Department did not fail to comply with a direction of the Tribunal that that information be supplied to the appellant.

19    Plainly, the authenticity of any particular visa, or anyone, was not in issue in the appeal determined by the Full Court in Fard v Secretary, Department of Immigration and Border Protection [2016] FCAFC 155.

20    Turning now to the present application for recusal, I note that the applicant did not provide written submissions in support of his recusal application. However, I note his affidavit filed in support on 1 September 2022 which relevantly stated:

5.    On 13 October 2016 Justice Collier made various notes at [FCA 1224], at p. 4 [15] her Honour stated: “an affidavit by Mr Qeumars which annexed copies of two travel documents …”. FCA 1224 [2016] and FCAFC 155 [2016] are attached to the annexures of documents marked “F” and “G”.

6.    In respond to her Honour regarding my affidavit referred to at [FCA 1224], that on 18 September 2015, I provided my affidavit within written application dated 18 September 2015 as an unlawful non-citizen, to the Administrative Appeals Tribunal (AAT), to I be a party to the proceeding of AAT No: 2015/1668, under Section 30 (1A) of the Administrative Appeals Tribunal Act. My affidavit/application to AAT No: 2015/166 attached to the annexures of documents and marked “D”.

7.    In my affidavit/application to AAT No: 2015/1668, I provided my identification documents. Also, I have made annexure of two versions of an Australian Visa V619<00309C, D033941, Visa code K4551, issued in Sofia, Bulgaria, 11 December 1989, on Document for Travel to Australia 032105, which were provided to me, and the Respondent without providing any affidavit evidence to AAT, by deceptive conduct and fraudulently asserted the said visa document 032105 as my status. I declared in my affidavit/application to AAT, that, the visa document 032105 does not contain my details.

…

12.    The matter of QUD285/2021 “The Sovereign Soltan Qeumars Shah Qajar v Australian Human Rights Commission & Minister for the Department of Home Affairs & Minister For Foreign Affairs” proceeded before her Honour Justice Collier for case management on 13 October 2021. Transcript of Proceedings dated 13/10/2021 attached to the annexures of documents and marked “H”.

13.    At this hearing 13 October 2021, Justice Collier did not disclose to me any information regarding the aforesaid cases FCA 1224 and FCAFC 155.

14.    On 13 October 2021 Justice Collier made orders and the matter of QUD285/2021 was listed for 25 November 2021. Sealed orders of Collier J dated 13/10/2021 attached to the annexures of documents marked “I”.

15.    On 23 November 2021, I filed my ‘the Applicant’ proposed order, stamped RECEIVED Federal Court of Australia. I sought order that “By 8 December 2021, the Second Respondent file and serve affidavit evidence including the original visa Document for travel to Australia number 032105 alleged to have been issued on 11 December 1989 and any evidence of the identity of the applicant upon which the Second Respondent intends to rely”. The stamped RECEIVED proposed order dated 23/11/2021 attached to the annexures of documents and marked “J”.

16.    On 25 November 2021, Justice Collier did not grant the proposed order that I sought. At this hearing, Justice Collier in any way, shape, or form, did not inform me about the aforesaid cases FCA 1224 and FCAFC 155. Transcript of Proceedings dated 25/11/2021 attached to the annexures of documents and marked “K”.

17.    On 25 November 2021, Justice Collier made orders and the matter of QUD285/2021 was listed to be heard on 15 March 2022. Sealed orders of Collier J dated 25/11/2021 attached to the annexures of documents marked “L”.

18.    Pursuant to the orders of Collier J dated 25 November 2021, the Second and the Third Respondents did not provide any affidavit evidence about single photocopy A4 page depicting a Permanent Resident Visa Document for travel to Australia 032105, thus, resulted to serve upon the Second and the Third Respondents with Notice to produce QUD285/2021 dated 18 February 2022, subpoena request dated 2 March 2022, and I lodged an interlocutory application dated 2 March 2022.

…

25.    I believe that the above facts and circumstances including the cases FCA 1224 [2016] and FCAFC 155 [2016] attached to the annexures of documents marked “F” and “G” give rise to a reasonable apprehension of bias, and I ask that the Court consider that Her Honour Justice Collier disqualify herself from hearing or determining any further proceedings in relation to this matter QUD70/2022 on the basis that Her Honour has already made determinations concerning the authenticity of “the visa”.

21    The crux of the appellant’s recusal application appeared to be that I had earlier decided in the Fard litigation, unfavourably to him, that certain documents on which the appellant seeks to rely were not “authentic”. As such, the applicant contended at the hearing on 7 September 2022 that I might not bring an impartial mind to the consideration of his application for leave to appeal.

22    The proper test applicable in determining whether a judicial officer is affected by apprehended bias was that set out by the bHigh Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337.

23    In Ebner, Gleeson CJ and McHugh, Gummow and Hayne JJ relevantly observed:

6.    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

7.    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

8.    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(emphasis added)

(footnotes omitted)

24    The High Court further clarified this test in Charisteas v Charisteas [2021] HCA 29, at [11], as follows:

11.    Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(emphasis added)

25    In the context of prior adverse findings forming the basis for recusal owing to apprehended bias, I respectfully note and adopt observations of Bromwich J in Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690, at [14], namely:

Merely reaching an adverse view of the merits of a case, even if firmly expressed, does not necessarily, or even ordinarily, preclude a judge determining the next stage of the same proceedings. Damages hearings routinely follow determination of liability; in the criminal jurisdiction sentences follow determinations of guilt (including in cases by way of trial by judge alone). In any court where costs may be awarded, including in particular indemnity costs, the way in which a case was run will fall to be assessed against the backdrop of an unfavourable prior decision which may go to the heart of the decision to be made. It simply cannot be the case that in such situations a new judicial officer is required as a matter of course for that last stage. The focus must be on a proper basis for recusal.

(emphasis added)

26    In light of the principles in Ebner and previous decisions in the Fard litigation, I was not persuaded that I should recuse myself from hearing the applicant’s application for leave to appeal for the following reasons.

27    First, the applicant has not identified any cogent or persuasive reason to justify his contention that I would determine his application for leave to appeal on any basis other than its legal and factual merits. His sole contention in this respect is that I was previously involved in decisions in which I allegedly rejected the validity of documents concerning his mother, and as a consequence I have prejudged his application for leave to appeal. As I have already explained, this is not an accurate description of the previous litigation involving Ms Fard, the principles discussed by the Court (either by me sitting alone or as a member of the Full Court), or the outcome of the two Fard cases.

28    Second, as Bromwich J observed in Young, prior adverse decisions made by a judicial officer in a proceeding seldom lead to issues of apprehended bias when determining a later part of that proceeding. Being a member of a Full Court, and separately alone determining interlocutory matters referable to the admissibility of fresh evidence and the issue of subpoenas, some six years ago in two entirely separate proceedings to which the applicant was not a party, would not lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to determining the application for leave to appeal before me. It follows that the applicant has failed to establish a logical connection between the decisions in the Fard litigation to which I have referred in this judgment, and how I may decide this appeal on anything other than its merits.

29    Third, I further note in any event that an application for special leave to appeal the decision from the Full Court was dismissed by the High Court in Fard v Secretary, Department of Immigration and Border Protection [2017] HCASL 30. In doing so, the High Court stated at [2]:

None of the applicant's proposed grounds of appeal discloses a sufficient basis to doubt the Full Court's decision and, therefore, an appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.

30    For these reasons the recusal application stands dismissed.

APPLICATION FOR LEAVE TO appeal

31    The second and third respondents outlined the factual background to the present application for leave to appeal in written submissions. For convenience I have adopted this factual summary, which I understand to be uncontentious:

4.    The context for the present application is an amended originating application, filed on 20 October 2021, in which the applicant seeks judicial review of a decision of a delegate of the President of the Australian Human Rights Commission (AHRC) dated 11 August 2021 (Decision). In the Decision, a delegate of the President of the AHRC decided not to continue to inquire into a complaint made by the applicant to the AHRC, pursuant to s.20(2)(c)(iib) of the Australian Human Rights Commission Act 1986 (Cth) (Act).

5.    The applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The applicant also, as an alternative, seeks relief pursuant to s.39B of the Judiciary Act 1903 (Cth) (JA). That relief is predicated upon a claim that that the applicant is being subjected to arbitrary (and, it may be inferred, unlawful) detention. Details about the nature of the dispute, the issues raised and the arguments against the relief sought are outlined in submissions filed by the second and third respondents on 9 February 2020 (merits submissions). These submissions should be read in conjunction with, and by reference to, the merits submissions (on which the respondents continue to rely).

6.    The final hearing of the proceedings in respect of the claims under the ADJR ACT and the JA was set down for 15 March 2022. On 18 February 2022, following the filing of the merits submissions, the applicant served on each of the second and third respondents a notice to produce. Each notice sought production of the same documents: first, an application for travel said to relate to the “Document for Travel” issued to the applicant on 11 December 1989 (Travel Document); and, secondly, documents “provided as proof of identity” for the individual (the applicant) in whose name the Travel Document was issued. Plainly, on the terms of the notices, such documents (if they currently exist) would have been generated and provided at some point prior to 11 December 1989. The documents in question relate to matters occurring over 32 years ago.

32    In the primary decision the primary Judge ordered as follows :

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.

33    The reasons of the primary Judge were relatively brief, and were as follows :

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:

1. That by commencement of the hearing of this matter, 15 March 2022, the second and third respondents provide separate affidavits dealing with whether or not the documents sought by the Notice to Produce and the subpoena served by the applicant on them in this matter:

(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:

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.

34    I note that the substantive proceeding before the primary Judge remains on foot pending the outcome of this application for leave to appeal.

35    The grounds on which the applicant seeks leave to appeal the primary decision are as follows:

1.    The judgment of [the primary Judge] denied the applicant right to present relevant evidence at the hearing of the substantive matter on 15 March 2022.

2. The judgment of [the primary Judge] was unfair and unjust.

3. The judgment of [the primary Judge] was wrong in fact.

4. The judgment of [the primary Judge] was wrong in law.

36    In his written submissions, and oral submissions at the hearing on 7 September 2022, the applicant sought to agitate, for the most part, arguments with respect to his identity. Only a small part of those submissions addressed the appeal of the Orders of the primary Judge.

37    The applicant has submitted a number of documents in support of his application for leave to appeal. These include:

(a)    the application for leave to appeal, filed on 15 March 2022 (presumably, and notwithstanding the applicant’s submission that leave was not required, in the event that leave is necessary).

(b)    a draft notice of appeal filed on 15 March 2022. The proposed grounds of appeal are :

1.    The judgment of Justice Thomas and all of the orders denied the applicant right to present relevant evidence at the hearing of the substantive matter on 15 March 2022.

2.    The judgment of Justice Thomas was unfair and unjust.

3.    The judgment of Justice Thomas was wrong in fact.

4.    The judgment of Justice Thomas was wrong in law.

(c)    an affidavit of the applicant affirmed on 11 March 2022, attaching as Exhibit 1 a copy of the Transcript (being the transcript of the hearing on 7 March 2022).

(d)    an application for leave to rely on further evidence in the appeal, filed on 3 June 2022. The applicant also filed an affidavit, affirmed by him on 3 June 2022, which exhibited two documents on which the applicant sought to rely in the appeal.

(e)    written submissions of the applicant, dated 13 June 2022, provided in support of the application for leave to appeal (and, it appears, also addressing the substantive grounds set out in the draft notice of appeal).

38    In support of his application for leave to appeal, the applicant submitted as follows:

18.    At paragraph 10 of the decision, his Honour Justice Thomas gave his reasons for refusing my request for a subpoena and setting aside the Notices to Produce based upon a mistaken finding that the notices to produce should be set aside on the basis that the documents were not reasonably likely to add to the relevant evidence. None of the documents

“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”.

19.     The further evidence is the Second Respondents’ document.

20.     The Case Management hearing had been instigated by his Honour Justice Thomas 4 March 2022 and unfairly gave no notice that the court intended to consider dismissing my application for a subpoena.

21.    It was not until 7 March, 2022 that the further evidence became relevant to the incorrect finding by his Honour Justice Thomas 7 March 2022, that there was “a temporary visa allowing travel to Australia in December 1989”.

22.    The further evidence is a single page letter, it refers to 2 names ‘Mr Qajar Qeumars’ and ‘Sohaill Laghaifar’, and without explanation infers that they are the same person by stating “Mr Qeumars applied for Australian Citizenship under the name Sohaill Laghaifar”.

23.    The further evidence has been admitted into evidence as Exhibit 1 by the Justice Thomas during the hearing of my application QUD 285 of 2021 15 March 2022.

24.    The further evidence refers to a Permanent Resident Visa, while the finding by his Honour Justice Thomas at paragraph 10 of the decision, gave reasons for refusing my request for a subpoena and setting aside the Notices to Produce as, ‘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’.

25.    I rely upon the further evidence to establish in my appeal that there was a good reason for my Subpoena and Notices to Produce being directed at the necessary preliminary documents.

…

34.    At paragraph 6 of the judgment his Honour concluded, “that the documents are not reasonably likely to add to the relevant evidence”, a conclusion his Honour mistakenly made on the finding at paragraph 10 of the judgment that; “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”. This is not correct because the further evidence confirms that the visa was a permanent resident visa and otherwise upon which citizenship could not have been issued. The necessary preliminary documents are undoubtedly relevant to the issue of a permanent visa and subsequent citizenship to a person that the Second and Third Respondent assert was me. To be fair and just the Court must be given access to the necessary preliminary documents, because they are central to my true status in Australia and the identity which the Second and Third Respondents assert.

35.    At paragraph 7 of the judgment his Honour states, “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]). This observation overlooks the claim I make that the documents should have been sought by the First Respondent and provided by the Second Respondent before any decision was made to discontinue the investigation into my complaint. Surely it is evident that the Second Respondent may have been more likely to conciliate if they had to produce the documents, and the First Respondent would have been more likely to consider the other options open to them under Sections11 (f) (i), 11(k), 20A,29(2) and 46 of the AHRCA), in the event that the documents cannot prove that I am the person subject of the permanent visa.

36.    These arguments go to the Courts consideration of his Honours’ finding at paragraph 8 and 9. Just because the Second Respondent refuses to conciliate is simply not enough to utilise section 20(2)(c)(iib). It amounts to doing virtually nothing and does not satisfy the commission responsibilities under the AHRCA.

(errors in original)

39    The applicant also submitted that, for the purposes of s 24(1C) of the Federal Court Act 1975 (Cth)(Federal Court Act), he did not require leave to appeal the decision of the primary Judge as it affected his liberty. In his reasoning, this was because the proceeding before the primary Judge broadly concerns his ability to obtain a visa in order to travel outside Australia, and consequently his liberty was affected in this sense.

40    The respondent submitted that the Court should refuse the application for leave to appeal. In support of this position, the respondent submitted, in summary, as follows:

    the applicant’s arguments with respect to s 27 of the Federal Court Act are both “premature and moot” on the basis that whether or not further evidence should be adduced is a question to be answered when an appeal is on foot, and not when a question of leave to appeal is to be determined;

    the two documents in question already form part of the substantive appeal before the primary Judge, being the travel document and 2010 letter from the second respondent;

    the applicant’s position referable to this application for leave to appeal is flawed;

    the only question to be answered in determining whether leave to appeal should be granted is whether:

…AHRC made a jurisdictional error in declining to investigate the applicant’s complaint. In answering that question, the AHRC is not required to investigate the merits of the underlying complaint, let alone reach any conclusion on it or otherwise determine it. Pertinently, any decision it does reach is based on the documents that were actually before the AHRC. In answering that question, the AHRC is not required to investigate the merits of the underlying complaint, let alone reach any conclusion on it or otherwise determine it. Pertinently, any decision it does reach is based on the documents that were actually before the AHRC…

    the question posed by s 20(2)(iib) of the Australian Human Rights Commission Act 1986 (Cth)(AHRCA) relates to whether a reasonable prospect of success exists referable to the settlement of a matter by conciliation, and that those only involves the assessment of the various parties’ positions rather than the merits of the case. It follows that the delegate was not required to evidence in any other way other than as it related to possible settlement;

    it is irrelevant that the applicant has not been given an opportunity to have his complaint addressed, as s 20(2)(iib) of the AHRCA is a discretionary power; and

    The applicant’s claims made under the Judiciary Act 1903 (Cth) are on the basis that he is subject to arbitrary detention or otherwise detained, which is incorrect.

Consideration

41    The principles to be applied in determining whether leave should be granted to appeal an interlocutory decision are well-settled. As the Court observed in Haritos v Commissioner of Taxation [2015] FCAFC 92 (per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) at [58]:

The principles to be applied in deciding whether or not leave to appeal should be granted from an interlocutory decision are well-known: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844 ; 33 FCR 397 at 398–399. They are whether the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

(emphasis added)

42    The limbs of the test for leave to appeal outlined in Haritos are cumulative, and each must be established: Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 at [5]. In applying this test, the proposed grounds of appeal should be considered at an impressionistic level: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125.

43    In my view leave to appeal the primary decision should be refused. In reaching this conclusion I make the following findings.

44    First, and contrary to the submissions of the applicant, it is abundantly clear that he requires leave to appeal the decision of the primary Judge. There is no dispute that the primary decision was interlocutory in nature, and it is also plain that the applicant’s liberty is not affected in terms that would enliven the exception in s 24(1C) of the Federal Court Act. In the context of whether a person’s liberty is affected for the purposes of s 24(1C) of the Federal Court Act, Ryan J stated in Talacko v Talacko (2010) 183 FCR 297 at [43]:

I consider that a similar approach to the construction of the corresponding new provision in the Federal Court Act compels the conclusion that the exception from the need to obtain leave to appeal is confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty.

45    (see also Jackson J in Ogbonna v CTI Logistics Limited [2022] FCA 227, at [10])

46    Second, it appears that the documents that the applicant sought to obtain from the second and third respondents are already before the Court. The second and third respondents submitted that the documents the applicant sought admitted were already in the substantial proceedings, in particular:

    the first document – the 2010 letter from the second respondent – was admitted into evidence as part of the judicial review application.

    the second document – comprising the Travel Document which was before the AHRC – has already been provided to the Court as part of the applicant’s evidence in the substantive proceedings

47    No submissions of substance were made by the applicant in respect of this contention.

48    Third, the substantive issue before the primary Judge concerned only whether the decision of the first respondent was affected by jurisdictional error when it decided not to investigate the applicant’s complaint. Under s 11 of the AHRCA the functions of the AHRC include:

(aa)    to inquire into, and attempt to conciliate, complaints of unlawful discrimination;

49    However, relevantly the Australian Human Rights Commission Act provides that

…

(2)    The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if

…

(c)    in a case where a complaint has been made to the Commission in relation to the act or practice:

…

(iib)    the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation;

50    In determining whether it has achieved that level of satisfaction, the first respondent need only consider whether there is sufficient scope for agreement on the basis of the positions the parties have taken before it. Referable to that principle, in the course of the Court deciding whether notices to produce should be set aside or whether leave to issue a subpoena given, a key consideration was whether such documents had “apparent potential relevance to the matters in issue in the litigation”: per French J in Australian Gas Light Company v ACCC [2003] FCA 1101 at [8]; McIlwaine v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; Seven Network Ltd v News Ltd (No.11) [2006] FCA 174.

51    The documents the applicant sought be produced by means of the notices to produce and subpoenas in the substantive proceedings must be largely irrelevant in determining whether the decision of the first respondent in deciding not to inquire into the applicant’s complaint was affected by jurisdictional error. This precise point was made, clearly correctly, by the primary Judge.

52    Fourth, the Orders sought by the applicant in the substantive proceedings, namely the issue to him of a visa under the Migration Act 1958 (Cth)(Migration Act) and related travel documents, seek entirely administrative acts by the Executive. This Court has no jurisdiction to issue visas or compel the issue of visas under the Migration Act. Even if the applicant were granted the orders he sought from the primary Judge, the material he sought would not assist him in respect of the substantive orders he seeks.

53    Fifth, the proposed grounds of appeal are vague, unparticularised, and merely cavil with the decision of the primary Judge without identifying particular errors.

54    I am not persuaded that the decision of the primary Judge is attended by sufficient doubt to warrant its being reconsidered on appeal. I am also not persuaded that any injustice, much less substantial injustice, would result to the applicant if leave to appeal were refused, supposing the decision of the primary Judge to be wrong.

conclusion

55    For the reasons I have outlined I dismiss the applicant’s applications for recusal and leave to appeal. It is appropriate that the applicant pay the costs of the respondents of and incidental to these applications, to be taxed if not otherwise agreed.

Associate:

Dated:    11 November 2022