Federal Court of Australia
Qajar v Australian Human Rights Commission [2023] FCA 314
ORDERS
DATE OF ORDER: | 6 April 2023 |
THE COURT ORDERS THAT:
1. The Interlocutory Application dated 13 March 2023 is dismissed.
2. The applicant is to file the subpoenas subject to this application.
3. Leave to issue the subpoenas is refused.
4. The hearing be vacated to a date to be fixed.
5. Costs are reserved.
MEAGHER J:
INTRODUCTION
1 By an amended originating application dated 20 October 2021, the applicant seeks judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision made by a delegate of the President of the Australian Human Rights Commission (AHRC) dated 11 August 2021 to not continue to enquire into his complaint made against the Commonwealth of Australia for allegedly breaching his human rights (decision). He also seeks relief pursuant to section 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) on the basis that he claims to be arbitrarily detained in Australia. The orders sought by the applicant include declarations, a visa and related travel documents.
2 The application was originally set down for hearing on 15 March 2022 before Thomas J. On 2 March 2022, the applicant sought leave to issue subpoenas to the second and third respondent as follows:
The application for travel to Australia, or copy thereof, for which Document to Travel to Australia 032105 in the name Sohyle Lagheyefar, born 12 December 1966, visa number V619<00309C K4551 W303DU, was issued in Sofia 11 December 1989.
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.
3 On 7 March 2023, his Honour refused leave to issue the subpoenas and set aside the notice to produce: Qajar v Australian Human Rights Commission [2022] FCA 189.
4 The substantive hearing commenced on 15 March 2022, but was adjourned after the applicant advised his Honour that he had filed an appeal against the interlocutory decision with respect to the subpoenas and notices to produce.
5 On 11 November 2022, Collier J dismissed the applicant’s application for leave to appeal from the interlocutory decision of Thomas J: Qajar v Australian Human Rights Commission [2022] FCA 1339.
6 Relevantly, her Honour dismissed the application for leave appeal on the basis that:
(1) At [51] – [51], applying Australian Gas Light Company v ACCC [2003] FCA 1101 (Australian Gas Light Company), given the scope of the matters before the primary judge, the document sought “must be largely irrelevant in determining whether the decision of the first respondent in deciding not to enquire into the applicant’s complaint was affected by jurisdictional error, which point was correctly made by the primary judge”.
(2) At [52], that the orders sought by the applicant with respect to the issue of a visa and travel documents are administrative matters entirely the purview of the Executive and accordingly, the material he seeks by virtue of the subpoenas or notices to produce would not assist him.
7 At [53], her Honour also considered the grounds of appeal to be “vague, unparticularised and [to] merely cavil with the decision of the primary judge”.
8 At [54], adopting the well-settled principles considered in Haritos v Commissioner of Taxation (2015) 233 FCR 315, her Honour was 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.
9 The matter was re-allocated to my docket in December 2022, and was re-listed for a substantive hearing on 13 April 2023.
CURRENT SUBPOENA REQUEST
10 On 7 February 2023, the applicant uploaded two subpoena requests to the Court’s eLodgement system.
11 One subpoena was directed to Joseph Petyanszki of the second respondent, requesting that he attend Court to give evidence, described by the applicant as:
a) logically be able to explain how the process of issuing a travel document 032105 in Sofia, Bulgaria, by using the Seal of Australian Embassy Belgrade, Yugoslavia, and the legality of this process;
b) are police report and medical checks required prior to issuing a travel document;
c) the preliminary identification material and photographic proof necessary for the issue of the travel document and the permanent resident visa;
d) the reason he travelled from Belgrade to Sofia in Bulgaria to issue the travel document with endorsed permanent resident visa;
e) was the travel document 032105 issued in Belgrade with the Seal of Australian Embassy Belgrade or was issued in Sofia with the Seal of Australian Embassy Belgrade;
f) the identity of the person whose photograph appears on the travel document 032105 with endorsed permanent resident visa label;
g) whether or not he interviewed the applicant at the time;
h) whether or not the applicant was imprisoned at the time;
i) whether or not he had a documented application for the issue of the travel document with endorsed permanent resident visa;
j) what visa or photographic travel documentation he relied upon to satisfy himself of the true identity and the signature of the person whose photograph appears on the travel document 032105 endorsed with permanent resident visa;
k) whether or not he was in possession of evidence that the applicant’s presence as an Iranian national in Sofia, Bulgaria, was lawful;
l) what language was used to communicate and conduct interviews with the applicant if other than the Persian language;
12 The second subpoena was directed to the second respondent to produce the following information:
i) Application and identifying material provided to the Second Respondent for the purpose of issuing;
a) Australian Citizenship No. CN9200034H issued 19 November 1993;
b) Australian Citizenship No. ACC0490577, (page 35 of the Court Book);
c) Australian Citizenship No. 01205000685, (page 35 of the Court Book); and
d) Australian Citizenship No. ACC049577, (page 168 of the Court Book which also state that on 4 April 2009 the Certificate was subject of a delegates decision to void and destroy the Certificate);
ii) Proof of identity documents used by Joseph Petyanszki to issue the travel document and permanent resident visa on 11 December 1989 in Sofia, Bulgaria, required to support the issue of;
a) Australian Citizenship No. CN9200034H issued 19 November 1993;
b) Australian Citizenship No. ACC0490577, (page 35 of the Court Book);
c) Australian Citizenship No. 01205000685, (page 35 of the Court Book); and
d) Australian Citizenship No. ACC049577, (page 168 of the Court Book which also state that on 4 April 2009 the Certificate was subject of a delegates decision to void and destroy the Certificate);
iii) Record/s of interview/s completed for the issue of;
a) Australian Citizenship No. CN9200034H issued 19 November 1993;
b) Australian Citizenship No. ACC0490577, (page 35 of the Court Book);
c) Australian Citizenship No. 01205000685, (page 35 of the Court Book); and
d) Australian Citizenship No. ACC049577, (page 168 of the Court Book which also state that on 4 April 2009 the Certificate was subject of a delegates decision to void and destroy the Certificate); and
iv) The Oath of allegiance to the Queen ancillary to the issue of;
a) Australian Citizenship No. CN9200034H issued 19 November 1993;
b) Australian Citizenship No. ACC0490577, (page 35 of the Court Book);
c) Australian Citizenship No. 01205000685, (page 35 of the Court Book); and
d) Australian Citizenship No. ACC049577, (page 168 of the Court Book which also state that on 4 April 2009 the Certificate was subject of a delegates decision to void and destroy the Certificate);
13 I considered the subpoena requests ex parte in chambers and rejected their filing pursuant to rule 2.27 of the Federal Court Rules 2011 (Cth) (Rules). Pursuant to the Federal Court of Australia Act 1976 (Cth), this is not a decision in respect of which an appeal lies.
14 However the email sent to the applicant said:
Please be advised that her Honour has refused leave to issue the requested subpoenas. (emphasis added)
15 Accordingly, the parties proceeded under the misapprehension that I refused leave to issue the subpoenas, rather than rejected the filing of the subpoenas.
16 On 2 March 2023, the applicant sought leave to appeal from the decision to reject the filing of the subpoenas, under the impression that a decision was made refusing leave to issue the subpoenas, via eLodgement. This application was refused by Registry for failing to comply with the Rules.
17 On 13 March 2023, the applicant lodged an interlocutory application in this matter, seeking the following orders:
An order under Rule 36.08(2) of the Federal Court Rules 2011 (Cth) staying the execution of this proceeding QUD285/2021 – The Sovereign Soltan Qeumars Shah Qajar v Australian Human Rights Commission & Ors until the appeal is heard and determined.
An order granting the Applicant leave to file and serve the Application for Leave to Appeal and supporting affidavit exhibited to the affidavit of The Sovereign Soltan Qeumars Shah Qajar sworn on 13 March 2023.
18 The applications were ill conceived. However, given the confusing procedural history of this part of the proceeding and that the applicant is self-represented, and submits that he labours under some health difficulties, the interlocutory hearing which occurred on 21 March 2023 should be treated as an application by the applicant for leave to issue the subpoenas. From that flows that if leave to issue the subpoenas is refused, the applicant preserves his right to seek leave to appeal against that decision.
19 Initially I rejected the filing of the subpoenas. I am also not minded to grant leave for them to be issued.
consideration
20 By way of background, the applicant considers that he was kidnapped in Turkey in 1987, unlawfully imprisoned until December 1989 in a location unknown to him, and subsequently unlawfully brought to Australia where he remains. He submitted has never applied for or acquired Australian citizenship and as such considers himself detained in Australia as an unlawful non-citizen. The applicant claims that the name ‘Sohyle Lagheyefar’, which is the name on multiple documents provided by the Department, is not and has never been his name. The applicant claims that his real name is ‘The Soverign Soltan Qeumars Shah Qajar’ and that he is the sovereign king of Iran.
21 Therefore, he says he is an unlawful non-citizen. As such he says he cannot leave Australia, travel, undertake work, have a tax file number, access Medicare or take advantage of other benefits which flow from Australian citizenship.
22 Essentially, as was distilled by counsel for the second and third respondent, the case the applicant wishes to advance is ultimately regarding his identity – he says he is not the person the second and third respondents consider him to be. He wishes for a determination as to whether or not he is an Australian citizen. It is not clear how that relates to the relief the applicant is seeking in this matter, noting that the citizenship question would require administrative actions, perhaps yet to occur, to be undertaken by the Executive.
23 The applicant’s submissions in support of the grant of leave to issue the subpoenas are contained in his affidavits of 2 March 2023 and 13 March 2023, his written submissions of 20 March 2023 and 3 April 2023, and oral submissions. With respect, they are lengthy, repetitive and difficult to follow.
24 In relation to the subpoena requests, the applicant submitted that they would provide a basis for determination by the Court as to whether or not he is an Australian citizen or an unlawful non-citizen, and constitute evidence that the first respondent should have taken into account when making its decision. With respect to the subpoena directed to the second respondent, the applicant contends that the information sought will be conclusive as to whether or not he holds Australian citizenship.
25 With respect to the subpoena directed to Joseph Petyanszki, the applicant considers this information would be determinative of whether he is or is not ‘Sohyle Lagheyefar’ and assist the Court to resolve the issue regarding his claimed detention in Australia.
26 Counsel for the second and third respondent submitted that the information is not forensically relevant. The question of citizenship is of “no apparent potential relevance” (Australian Gas Light Company) to the substantive dispute, which is an application for judicial review in respect of the decision of the AHRC, and declarations sought pursuant to section 39B of the Judiciary Act which turns on the applicant’s proposition that he has been arbitrarily detained.
27 In Chandra v Webber (2010) 187 FCR 31, Bromberg J, in discussing when new evidence might be admitted in an application for judicial review of an administrative decision, acknowledging at [41] there were exceptions, stated at paragraph [40]:
Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 ; 228 ALR 28 ; [2005] FCA 1707 at [442] (Australian Retailers) per Weinberg J. However, the admissibility of evidence not before the decision-maker depends upon the grounds of review on which the application relies: Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539–40 (Attorney-General (NT)) per Lockhart J; Australian Retailersat [455] ; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319–20 (Hand) per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 ; 104 ALD 556 ; [2008] FCA 987 at [54] per Siopis J.
28 It was submitted by counsel for the second and third respondent that in this case the documents sought would not be admissible.
29 As to the application made pursuant to section 39B of the Judiciary Act, counsel for the second and third respondent submitted that the applicant’s contentions regarding his identity are not ones which are at issue in the current proceedings. Counsel submitted that there might be other ways the applicant could ventilate that issue, including under the Australian Passports Act 2005 (Cth) and the Australian Citizenship Act 2007 (Cth), however that approach has not been adopted. In these proceedings the issue is whether the applicant is arbitrarily detained. In the second and third respondent’s case, he is not – he is free to travel wherever he likes. Resolution of whether the applicant is a different person will not determine that issue. Even supposing the documents referred to would assist in determining the applicant’s identity, which counsel for the second and third respondent submits they will not, they would be of no relevance to the case at hand.
30 Counsel for the respondent also drew my attention to an earlier decision of this court: Fard v Minister for Immigration and Citizenship (2013) 140 ALD 291 (Fard). The applicant was a central witness in that case where the following relief was sought:
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;
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;
31 The presiding judge described the case at [1] as “the strangest case he had encountered in almost 29 years of being a judge”. Counsel for the second and third respondent submitted that Fard turned on some of the matters raised in this case, and that certain aspects of the information now sought was relevant in that regard.
32 While the judgement in Fard has no bearing on my decision to refuse leave to issue the subpoenas, insofar as it is relevant to the current proceeding, I observe that the case makes it clear that the applicant’s identity and many of the documents he seeks to dispute have already been the subject of extensive scrutiny by this Court, albeit in a different action commenced by another.
33 Leave to issue the subpoenas is refused. The evidence sought does not have any apparent potential relevance to the orders and declarations sought by the applicant. The claim pursuant to the ADJR Act turns upon whether the AHRC erred in their decision to terminate the applicant’s complaint – the proceedings before this Court do not give rise to an opportunity to conduct merits review. The claim pursuant to the Judiciary Act turns upon whether the applicant is or is not arbitrarily detained, and the information sought would have no bearing on that. Nothing the applicant advanced persuades me of their apparent potential relevance to the issues.
34 As I have refused leave to issue the subpoenas, is not necessary for me to consider the application for a stay.
CONCLUSION
35 For the reasons stated above leave to issue subpoenas is refused. The interlocutory application is dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher. |
Associate:
