Federal Court of Australia

Qajar v Australian Human Rights Commission (No 3) [2026] FCA 605

ORDERS

THE COURT ORDERS THAT:

1.    Leave to further amend the amended originating application filed by the applicant on 20 October 2021 is refused.

2.    The applicant’s amended originating application filed on 20 October 2021 is dismissed with costs.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    The applicant applies to this Court for judicial review of a decision made by a delegate of the first respondent on 11 August 2021. The first respondent is the Australian Human Rights Commission. The second respondent is the Minister for the Department of Home Affairs, and the third respondent is the Minister for Foreign Affairs (together, the Ministers).

2    The applicant brought these proceedings by way of an originating application dated 3 September 2021.

3    On 13 October 2021, Justice Collier made an order which granted the applicant leave to “file and serve any amended originating application”. Pursuant to that order, the applicant filed an amended originating application on 20 October 2021. By way of the applicant’s amended originating application, dated 20 October 2021, he seeks the following:

1.    The Applicant applies to the Court to review the decision of the First Respondent made on 11 August 2021, (‘the decision’), in regard to the applicants’ complaint of infringement of his human rights under Article 12 of the Schedule 2-International Covenant on Civil and Political Rights (ICCPR) of the Australian Human Rights Commission Act 1986 (AHRCA), (‘the substantive complaint’), in particular; of the First Respondent to decide that;

a)    the decision of the First Respondent not to act under Section 11 (k) of the Australian Human Rights Commission Act 1986 (Cth), it should by performing its function and report to the Minister as to the action that, in the opinion of the First Respondent, needs to be taken by Australia in order to comply with the provisions of Article 12 of the Schedule 2-International Covenant on Civil and Political Rights (ICCPR) of the Australian Human Rights Commission Act 1986 (AHRCA);

aa) and instead, the decision whereby having commenced to inquire into the acts and practices alleged in the substantive complaint by the Applicant 9 July 2020 to be inconsistent with Article 12 of the ICCPR of the AHRCA, the First Respondent decided on 11 August 2021 not to make further inquiry or decision under Section 20 (2) (c) (iib) of the AHRCA; and/or

b)    the decision not to decide whether or not the acts and/or practices complained of in the substantive complaint alleged by the Applicant on 9 July 2020 to be are inconsistent with or contrary to Article 12 and Article 17 of the ICCPR of the AHRCA, as required under Section 11 (f) (i) of the AHRCA are or are not inconsistent or contrary.

(Emphasis in original.)

4    That amended originating application sought judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA) and, alternatively, pursuant to s 39B of the Judiciary Act 1903 (Cth) of the decision to cease inquiries into a complaint made by the applicant to the Australian Human Rights Commission as per s 20(2)(c)(iib) of the Australian Human Rights Commission Act 1986 (Cth).

5    The amended originating application included the following grounds of the application:

1.2    Grounds of application

a)    The acts and practices of the Second and Third Respondents that are alleged by the Applicant on 9 July 2020 to be inconsistent with Article 12 and 17 of the ICCPR of the AHRCA, continue to offend against his rights and the protections provided under Article 12 and Article 17 of the ICCPR of the AHRCA;

b)    The Applicant has not been prevented from being given the opportunity to have the substantive complaint and supporting evidence brought to the attention of the Minister under Sections 11 (1)(k), 20A and 29 (2) of the AHRCA, and subsequently tabled in Parliament under Sections 46 of the AHRCA;

c)    the decision failed to take into account, or sufficiently take into, relevant evidence of the identity of the applicant and his status as an unlawful non-citizen;

d)    the decision failed to take into account the lack of any evidence contrary to the relevant evidence of his identity and his status as an unlawful non-citizen;

e)    the decision not to make further inquiry or decision into the substantive complaint under Section 20 (2) (c) (iib) of the AHRCA, constitutes a failure to make a decision dealing with the substantive complaint; and/or

f)    the decision not to make further inquiry or decision under Section 20 (2) (c) (iib) of the AHRCA does not amount to a decision that resolves the substantive complaint, and gives rise to a right to review of the decision by the Court.

(Emphasis in original.)

6    On 23 November 2021, the Commission filed a submitting notice in this matter.

7    By way of the applicant’s draft further amended originating application (Draft Further Amended Originating Application), he seeks to include a ground additional to those above, and which itself contains five further propositions, as follows:

g)    the decision is premised on s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth) the provisions of which do not provide a lawful basis by which the First Respondent can arbitrarily dismiss a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth) because s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth);

(i)    is beyond the legislative power of the Commonwealth;

(ii)    conflicts with the duties, functions and powers of the Commission required by s.10A, s.11 (1) (f), (k), (n) and (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth);

(iii)    serves no purpose in performance of the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth);

(iv)    is a legislative and executive usurpation of Commonwealth judicial power that provides for a quasi-judicial function whereby a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth) can be dismissed without the essential requirements of the curial process and the obligation to act judicially, and offends the Doctrine of Separation of Powers designated by s.71 Chapter III of the Constitution; and/or

(v)    dispenses with performance of the duties, functions and powers of the Commission, which is ultra vires to the Treaty on International Covenant on Civil and Political Rights, Part II Article 2 and to the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth).

    (Emphasis in original.)

8    At the hearing, the applicant raised two new questions, namely:

Does Ch 6, Pt 5.6, Divs 121 and 122 of the Criminal [Code] Act 1955 (Cth) provide a lawful means by which the executive government of the Commonwealth of Australia can, on the factual basis of this matter before the Court, act and omit to act in a manner that has constituted attempted murder, assault occasionally grievous bodily harm, deprivation of liberty, unlawful detainment between Australia as an unlawful non-citizen, contrary to s 189 and s 196 of the Migration Act [1958 (Cth)] … [a]nd omit the breaches of the Commonwealth’s covenant to the articles contained in the Australian Human Rights Commission Act [1986 (Cth)], as are listed in the application for review and s 39B [of the Judiciary Act] for release?

If the answer is yes … [c]an Ch 6, Pt 5.6, Divs 121 and 122 of the Criminal Code Act 1955 [(Cth)] be utilised by the judiciary of the Commonwealth of Australia, on the factual basis of the matter before the Court, to deem that the past acts and omissions of the executive government that constituted attempted murder, assault occasioning grievous bodily harm, deprivation of liberty, unlawful detainment between Australia as an unlawful non-citizen, contrary to deprivation s 189 and s 196 of the Migration Act [1958 (Cth)], unlawful and permit the continuance of the breaches of the covenants – Commonwealth covenants to the articles contained in the Australian Human Rights Commission, as are listed in the application for review and s 39B [of the Judiciary Act]?

(Emphasis in original.)

9    As the Ministers submitted orally, these issues had not been raised prior to the hearing, and therefore they had had no notice of them. On that basis, the applicant was not granted leave to raise them at the hearing. However, I observe that had leave been granted, the evidence before the Court does not prove the allegations on which these new issues are based.

10    Though the matter has been on foot since September 2021, the final hearing of the matter has been substantially delayed in view of the following:

(1)    The applicant’s subpoena requests filed on 2 March 2022. Thomas J refused leave to issue the subpoenas on 7 March 2022: Qajar v Australian Human Rights Commission [2022] FCA 189. The applicant sought leave to appeal against Thomas J’s decision, which was refused by Collier J on 11 November 2022: Qajar v Australian Human Rights Commission [2022] FCA 1339. The substantive proceeding had been set down for final hearing on 15 March 2022; however, in light of the fact that the applicant had appealed against Thomas J’s decision to refuse leave to issue the subpoenas, his Honour made orders that the substantive proceeding be adjourned to a date to be fixed.

(2)    The applicant’s subpoena requests uploaded to the Court’s eLodgment system on 7 February 2023. I refused leave to issue the subpoenas on 6 April 2023: Qajar v Australian Human Rights Commission [2023] FCA 314. The applicant on 19 April 2023 sought leave to appeal my decision, which was refused by Perry J on 8 November 2024: Qajar v Australian Human Rights Commission [2024] FCA 1292. The substantive proceeding was adjourned until the outcome of the applicant’s application for leave to appeal.

(3)    The applicant’s application on 13 March 2025 to have the matter removed to the High Court of Australia under s 40 of the Judiciary Act. The parties by consent requested that the final hearing which had been listed for 16 April 2025 be vacated, with the parties to update the Court on the outcome of the application for removal. Edelman and Gleeson JJ refused the applicant’s application for removal on 12 June 2025: Qajar v Australian Human Rights Commission [2025] HCADisp 102.

11    On 1 July 2025 the applicant filed a notice of a constitutional matter under s 78B of the Judiciary Act and then on 8 August 2025 he filed a draft amended notice of a constitutional matter (Draft Amended Constitutional Notice). The Draft Amended Constitutional Notice was said to raise the following questions “under the Constitution, its interpretation and laws made by the Parliament”, which mirrored those in the Draft Further Amended Originating Application (above at [7]):

•    Is s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth) beyond the legislative power of the Commonwealth and therefore without which does not provide a lawful basis by which the First Respondent can arbitrarily dismiss a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth);

•    Does s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth) conflicts with the duties, functions and powers of the Commission required by s.10A, s.11 (1) (f), (k), (n) and (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth);

•    Does s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth) have any has no purpose in performance of the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth);

•    Is s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth) a legislative and executive usurpation of Commonwealth judicial power that provides for a quasi-judicial function whereby a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth) can be dismissed without the essential requirements of the curial process and the obligation to act judicially, and as such offendsive to the Doctrine of Separation of Powers designated by s.71 Chapter III of the Constitution;

•    Is s.20 (2) (c) (iib) of the Australian Human Rights Commission Act 1986 (Cth), on the basis that it dispenses with performance of the duties, functions and powers of the Commission, ultra vires to the Treaty on International Covenant on Civil and Political Rights, Part II Article 2.

(Emphasis in original.)

12    The draft amended Notice of a Constitutional Matter also raised the following further question:

Does In original jurisdiction provided by s.39B (1A) (b) and (c) of the Judiciary Act 1903 (Cth) the Applicant maintains that s.38(a) of the Judiciary Act 1903 (Cth) exclude the jurisdiction of the Federal Court of Australia in this matter by reason of the Courts’ considerations arising directly under a Treaty, particularly the Treaty on International Covenant on Civil and Political Rights.

(Emphasis in original.)

13    None of the Attorneys-General sought to intervene.

The Applicant’s status as a litigant in person and the conduct of the proceeding

14    The applicant is a litigant in person. Throughout the course of this matter, it has become clear that the applicant has struggled to understand various aspects of the proceeding, despite the Court’s repeated explanations to him. Additionally, the Court has received medical certificates which refer to the potential difficulties that the applicant may have in conducting the proceeding. They refer to the applicant having been diagnosed with Bell’s Palsy which affects his hearing and his ability to enunciate words, as well as him being unable to see well and experiencing a lack of concentration.

15    The Court has assisted the applicant by:

(1)    Offering and granting him regular breaks during his appearances in Court.

(2)    Explaining, on multiple occasions, the nature of judicial review proceedings, and whose decision the applicant was seeking to challenge.

(3)    Providing him with a hard copy of the orders made by the Court at the first case management hearing.

(4)    Offering the applicant the opportunity to appear remotely in case it assists with his hearing.

(5)    Treating an “ill conceived” application for leave to appeal against my decision to reject for filing two subpoena applications on 7 February 2023 as applications for leave to issue subpoenas, owing to the applicant’s misapprehension as to the nature of that decision in light of the Court Registry’s correspondence: see Qajar v Australian Human Rights Commission [2023] FCA 314 at [10] – [19].

16    This included the following measures taken at the final hearing of this matter:

(1)    In light of the applicant’s difficulties with concentration and fatigue, timetabling the hearing so that the applicant had regular 15-minute breaks during his oral submissions-in-chief, and had a break between the Ministers’ submissions and his reply submissions.

(2)    Granting the applicant the opportunity to take additional breaks if he required.

(3)    Explaining to the applicant the nature of the proceeding, including that (1) he needed to justify why he should have leave to rely on his Draft Further Amended Originating Application, and (2) judicial review under the ADJRA and the Judiciary Act was a confined review of the legality of the Commission’s decision.

(4)    Asking the Ministers’ counsel to proceed at a slower pace and flag the particular paragraphs and pages of the material he was referring to when making submissions.

17    At the final hearing of this matter, the applicant also appeared to be confused about how his affidavit material would come before the Court. The applicant appeared to think that the material contained in his affidavits “ha[d] not been admitted to the Court” because he had not “take[n] the stand in the witness box”. Further, he considered that this would enable the “respondents [to] have any questions that want to be clarified to the Court”. I explained to the applicant that he did not need to “go into the witness box to get that evidence … admitted into Court”, but that he did need to inform the Court which affidavits he was relying on. In response, the applicant stated that the “rel[ied] on all his affidavits”. Further, for the applicant’s benefit I noted that the second respondent had not made any application to cross-examine the applicant, which the second respondent’s counsel confirmed at the hearing.

18    The applicant also appeared to take issue with the fact that the second and third respondents had “not provided any evidence to the Court”, despite them making submissions in this proceeding. The applicant asserted that the respondents made “a serious accusation against [him] to override [his] right”, and could not do so without evidence, implying that the respondents were required to “rely on evidence” in the event that they made submissions in this proceeding. In that context he accused the Ministers of creating a false identity which they ascribed to him without any evidential foundation. I explained to the applicant that as this proceeding was his application, he was required to “convince [the Court] of the matters … raised in [the] originating application”. I also explained that his affidavits were to be “read”, so the issue in relation to the evidence in the proceeding was as to the weight that I decided should be attached to the contents of these affidavits.

19    The applicant listed the following affidavits and submissions as those he relied on:

    His affidavit filed 3 September 2021.

    His affidavit filed 13 March 2023.

    His affidavit filed 5 August 2025.

    His affidavit filed 22 September 2025.

    His affidavit filed 22 October 2025.

    His affidavit filed 27 October 2025.

    His first set of written submissions filed 15 September 2025.

    His second set of written submissions filed 15 September 2025.

20    For completeness, I note that the Court has had regard to the following additional material which may be relevant to the present issues, but to which the applicant may have omitted to refer:

    His written submissions filed on 25 January 2022.

    His written submissions filed on 15 February 2022.

    His written submissions filed on 20 March 2023.

    His written submissions filed on 3 April 2023.

    His written submissions filed on 6 August 2025.

    His Draft Amended Constitutional Notice dated 8 August 2025.

21    It is also worth noting that the material relied on by the applicant was somewhat prolix, and it was unclear how portions of the material related to the issues agitated in this proceeding. The applicant’s affidavits and submissions demonstrated that the applicant did not appreciate the distinction between evidence and submissions. Given the applicant’s difficulties, as referred to above, I have considered his material fully without relying on technical distinctions for example where submissions have been contained in affidavits.

Applicant’s contentions regarding the conduct of the Ministers’ counsel

22    The applicant asserted that:

(1)    The Ministers’ counsel had undeclared conflicts of interest due to his previous employment at the law firm Clayton Utz, and other personal connections to individuals who have previously worked at that firm.

(2)    Clayton Utz, the Ministers’ solicitors in previous related proceedings, had knowledge, as a result of those proceedings, of documents which required disclosure to the Court. Those documents included an “Islamic Court Order” which the applicant claimed was “dated May 1984, created, signed sealed, by the [second] Respondent’s agent … for issuing Australian citizenship dated 19 November 1993”. The “Islamic Court Order” had allegedly been “signed and affixed with the Common Seal of the Migrant Resource Centre Cairns Inc. 12.08.1999 by the agent of the Department of Immigration and Multicultural and Indigenous Affairs”.

(3)    According to the applicant the “Australian made Islamic Court Order” and related documents, “are utterly contrary to the false and misleading information created by the Second and Third Respondents at CB 168-171” of the present proceeding, which refers to a letter from the Department of Home Affairs in response to the applicant’s complaint to the Commission dated 9 July 2020. In that letter, the Department of Home Affairs set out, inter alia, a summary of the applicant’s migration visa history, immigration and residency status, and citizenship status since 1989.

(4)    The Ministers had “obligations to declare apparent conflict of interest in Federal Court cases based on their common law duties”. This extended to a duty on both the Ministers and their counsel to “show utmost fairness to the Court and [to] disclose all material facts, including conflict check, the Second Respondent’s Australian made Islamic Court Order No 518 dated May 1984, the issuing [of] Australian Citizenship dated 19 November 1993, and the Clayton Utz the holder [sic] of the copies of all documents relating to the said Islamic Court Order in that matter”.

23    In view of the above, the applicant requested the following:

I request from the Australian Government Solicitor, I request from the Second and Third Respondents, that, by or before 28 October 2025, provide an affidavit into the conduct of the Second Respondent’s Australian made Islamic Court Order No 518 dated May 1984 created against Qajar families, affixed with Common Seal on 12 August 1999; used by Peter Knoble who without any Court Order “reversed” the Minister’s delegate decision dated 13 February 2009 that I am an unlawful non-citizen … and the apparent conflict of interest … .

…

[That the second and third respondents] clarify immediately to the Court that the Second Respondent agents created “Pseudonym” the name “Ulysses” and to the knowledge of Clayton Utz, used it for immigration proceedings, therewith, the [prior proceedings] and that, I have no knowledge how the “Pseudonym” was created, and I have never changed my name;

[That the second and third respondents] clarify immediately … that, to this day, Clayton Utz and their servants and agents have not disclosed or provided copies of any document relating to the creation of the Second Respondent’s Australian made Islamic Court Order No 518 dated May 1984 against Qajar families and the issued Australian Citizenship dated 19 November 1993 without my knowledge;

24    The “Islamic Court Order” was contained in a document lodged with the Court on 28 October 2025 as a “Draft Document”, which I gave the applicant leave to file at the hearing. The “Islamic Court Order” provided as follows:

Your attention is drawn to the fact that after the gracious Islamic Revolution agents of Zionist Israel and the, “World Devouring” U.S.A. are seeking opportunities to strike at the holy system of the Islamic Republic of Iran and a number of affiliates of the Qajar families and the damned Bahai sect are planning activities in order to create insecurity, chaos and riots and according to received intelligence reports one of the mentioned persons is a young man by the name of Soheil Laghaifar who is a clever, sly and well informed man who has several times escaped from summons authorities and is hiding in an unknown location. So, with regard to the above mentioned subject it is requested from all security and intelligence forces to mobilize for his arrest and in the case of arrest all efforts to be made for him to be delivered alive to relevant authorities of the Evin Revolutionary centre.

25    The applicant made similar oral submissions, with no evidential basis, relating to the Ministers “deceiving the Court”. He referred to “the mastermind to what they created”, presumably in reference to the dispute about the applicant’s true identity.

26    The applicant made no specific applications in relation to the Ministers’ counsel or solicitors either before or during the final hearing of this matter. The applicant’s position in that regard was that he could not make what he described as a “hearsay application”; he had put the Ministers’ representatives on notice, and they had failed to provide a written response. On that basis the issues referred to in paragraphs [21] – [25] were not pressed further.

27    In light of the assertions made by the applicant, I record that there was absolutely nothing before the Court suggestive of any impropriety whatsoever by the Ministers, or their counsel or solicitors.

backround

28    The applicant states that he is the Sovereign Soltan Qeumars Shah Qajar, the Sovereign King of Iran. He was born on 1 January 1969 in Iran. According to the applicant, his coronation occurred in Iran on 20 January 1975. He has, at various times, claimed descent from the following:

    Dr Mohammad Mosaddegh;

    Soltan Ahmad Shah Qajar;

    King Cyrus the Great;

    King Xerxes the Great; and

    Prophet Zoroaster.

29    The applicant alleges, by way of his affidavit dated 3 September 2021 (the applicant’s first affidavit), that he was “unlawfully brought to Australia” without his consent. He deposes that prior to his arrival in Australia in December 1989, he “was kidnapped, [and] kept for two years in solitary confinement (underground cell (lab))” in an unknown location. He claims to have sustained a variety of injuries, including:

    At the time of his arrival in Australia, “a very recent bullet wound” to his leg and other unspecified injuries sustained in transit;

    During late October 1990, injuries sustained in a motorcycle explosion;

    On 9 January 1993, electrocution and severe injury at his workplace, which he believed to be “an assassination attempt”; and

    On 10 June 2002, a bullet wound (presumably) as he was “shot on the balcony” of his place of residence.

30    The applicant also deposes that he was “placed under total legal incapacity … until 20 June 2003” as a result of the injuries sustained on 9 January 1993. He states that his capacity was restored after 20 June 2004 on the basis of a medical certificate which was issued on 23 June 2003.

31    The applicant also deposes in his first affidavit that he “could not read, write or understand English” and learned English “in captivity in Australia”.

32    The applicant deposes to the following:

    He does not possess “any travel document to enter Australia nor any visa to remain in Australia”;

    He “never applied for, asked for or lodged any application for Australian citizenship in any name whatsoever” and has never changed his “Sovereign title to any other name”;

    He made “repeated complaint[s]” that he was an unlawful non-citizen as per s 14 of the Migration Act 1958 (Cth) and was “unlawfully detained in Australia”;

    He is prevented from leaving Australia because he cannot obtain a “travel document” due to his status as an unlawful non-citizen;

    There exist multiple, false “Document for travel to Australia number 032105 (DFTTA 032105)” which are not related to the applicant; and

    He does not have “a tax file number (TFN), bank account, driver licence, access [to] health care” and is “deprived of earning any income”.

33    The applicant made a complaint to the Commission dated 29 July 2019 (first complaint), in which he alleged that he had been discriminated against on the basis of race, and that his human rights had been breached by a Commonwealth government body.

34    The Commission responded to the applicant’s first complaint by way of a letter dated 12 August 2019. The Commission did not take action with respect to the applicant’s first complaint because it did not comply with s 46P of the Act: see Qajar v Australian Human Rights Commission [2020] FCCA 356 at [24] – [28].

35    On 8 April 2020, the Commission informed the applicant that he had provided insufficient detail and that the documents provided were not considered to meet the requirements for making a valid complaint of unlawful discrimination. The applicant sent further documents to the Commission on the same day, which the Commission treated as documents constituting his first complaint and considered as a “purported complaint” together with the documents sent on 29 July 2019.

36    By letter dated 5 May 2020, the Commission informed the applicant of the difficulties with respect to the discrimination claim, namely that the “‘purported complaint of racial discrimination under the [Racial Discrimination Act 1975 (Cth) (RDA)]’ does not meet the requirements for making a valid complaint under section 46P of the [Act]”. The Commission considered that the applicant had “not provided sufficient details of acts or practices that the Commonwealth [had] engaged in that could reasonably arguably constitute unlawful discrimination” to meet the requirements set out in s 46P of the Act, or under the RDA. The Commission stated that even if the applicant’s complaints are taken at their highest, it was difficult to see how it could be argued that the Commonwealth had engaged in unlawful racial discrimination. In relation to his claims of “unlawful abduction, torture, kidnapping and being held hostage in Australia”, there was “no information to support any involvement by the Commonwealth”. The Commission further considered that his difficulties “experienced obtaining documents to leave Australia and accessing Medicare and other support” related to their being “different views” regarding his visa, residency and citizenship status, as well as government records not matching who the applicant said he was, rather than being grounds of racial discrimination under the RDA.

37    The Commission concluded that the applicant had not met the requirements of s 46P of the Act, and that it would “not be taking any action” in relation to the purported complaint of racial discrimination.

38    The applicant filed another complaint (second complaint) with the Commission on 9 July 2020. The second complaint maintained a claim against the Department of Home Affairs, and its predecessors, for alleged breaches of human rights and “discriminat[ion] against me because of my descent”. Relevantly, the applicant’s second complaint states:

What happened?

Describe the event(s) that you want to complain about.

The Respondent, since December of 1989, has not required of me or provided me with a Visa or Document for travel to Australia, and I remain as an unlawful noncitizen in Australia as defined in Section 14 of the Migration Act 1958.

This has had the effect and/or purpose of nullifying and impairing my human rights by interfering with the recognition, enjoyment and exercise, on an equal footing, of my fundamental freedoms in the political, economic, social, cultural and public life.

The Respondent has continuously refrained from any act or omission that would give me status as a lawful non-citizen and this is because of my descent described above and is contrary to Section 9 of the Racial Discrimination Act 1975.

As a result, I do not have the:

i)    freedom to travel outside of Australia;

ii)    freedom to work or trade to earn an income;

iii)    freedom to obtain a driver licence;

iv)    freedom to obtain educational qualification in Australian educational facilities;

v)    freedom to obtain access to public health, medical care, social security and social services; and

vi)    I have been denied any relief from the resulting nullification and impairment of my fundamental freedoms.

39    The applicant sought the following relief in his second complaint:

How do you think this complaint could be resolved?

…

1.    An agreement that the Respondent, its servants, agents and officers, will take action to:

(a)    legalise my status so that I am a lawful non-citizen by providing me a lawful temporary visa authorising my presence in Australia as a lawful non-citizen;

(b)    acknowledge that I did not have any responsibility for my entry and presence in Australia without a lawful travel document;

(c)    provide immediate financial assistance by paying for urgent medical assessment and necessary treatments; and

(d)    compensate me for loss of income resulting from the discrimination that has deprived me of my human right to enjoy and exercise my fundamental freedom and liberties in political, economic, social, cultural and public life, which has prevented me from lawfully:

i)    traveling outside of Australia;

ii)    working, trading or earning an income;

iii)    obtaining a driver licence;

iv)    obtaining educational qualifications in Australian educational facilities; and

v)    obtaining access to the public health system, social security and social services. …

40    The applicant also provided particulars with respect to his claimed loss of income and calculations of that loss which amounted to over one billion dollars.

41    On 14 August 2020, the Commission accepted the applicant’s second complaint as a “claim alleging a breach of human rights” as per the International Covenant on Civil and Political Rights (ICCPR). However, the delegate also advised the applicant of the following:

    The applicant’s claim with respect to rights to work, earn income, obtain educational qualifications or obtain access to medical and social services were not covered by the ICCPR; and

    The applicant’s claim continued to face the previously identified difficulties with respect to any discrimination claim given the requirements in s 46P of the Act.

42    The applicant maintained his claims by way of a letter dated 26 August 2020.

43    A delegate of the President of the Commission made a decision with respect to the applicant’s second complaint on 1 October 2020. The delegate decided that the applicant had failed to meet the requirements for a valid discrimination claim as per s 46P of the Act.

44    The applicant did not challenge the decision of 1 October 2020.

45    After continued correspondence between the applicant and the Commission, the Commission sent an email dated 23 November 2020 to the applicant which confirmed that the complaint had been provided to the second respondent and further information had been sought from the second respondent.

46    The Department of Home Affairs responded to the Commission on 27 January 2021 in the following terms:

    The Department of Home Affairs did not accept the applicant’s claimed title and referred to him by his name, being Sohail Laghaifar. The Department of Home Affairs noted that at the time of arriving in Australia, the applicant used the name “Sohyle Lagheyefar” in a Document for Travel to Australia issued by the Australian Government on 11 December 1989;

    The applicant had arrived lawfully in Australia in 1989 and “had applied for and been granted Australian citizenship”, under the name “Sohail Laghaifar”, preferring that spelling;

    The applicant had subsequently and unsuccessfully “sought to change his citizenship certificate to the name Qeumars Ulysses”;

    The Department of Home Affairs relied on “the established factual information” about the applicant as detailed in its response, and would not respond to “questions of alleged breach”; and

    In this case, the “Department’s position [was] that it [was] not appropriate to pay compensation” considering that the Minister for the Department of Home Affairs could only pay compensation to settle a claim where there was “a meaningful prospect of legal liability”.

47    The applicant was provided a copy of the above response on 24 February 2021 in an email from the Commission. The applicant sent an email to the Commission on 25 February 2021 in which the applicant claimed that the response contained “false and misleading statements”, concealed “corrupt conduct” and included concealing the location of an underground cell where the applicant claimed he was “held and imprisoned for two years” before being brought to Australia”.

48    On 18 March 2021, the Commission informed the applicant by email that it intended to make a decision in regards to the second complaint and invited the applicant to, within 14 days, make any further submissions.

49    The applicant provided to the Minister for the Department of Home Affairs a suite of further documents and answers to questions posed by the delegate in a series of emails dated 31 March 2021 and 1 April 2021.

50    Thereafter:

    By email dated 10 May 2021, the applicant was informed that the second complaint may be finalised if the delegate of the President of the Commission was not satisfied that there was a “reasonable prospect of the complaint being settled by conciliation” and that the Department of Home Affairs considered that the applicant’s request for compensation was not “appropriate”;

    The applicant withdrew the claim for compensation and requested that the Commission consider Art 17 of the ICCPR in a letter dated 17 May 2021, which was acknowledged by the Commission in an email dated 19 May 2021;

    The applicant confirmed in a letter dated 26 May 2021 that all the information upon which he wished to rely for the purposes of his application had been submitted and maintained that he was an unlawful non-citizen, refused to accept that the visa document which had been provided to him by the Minister for the Department of Home Affairs referred to him and affirmed his belief that he was unable to travel outside of Australia;

    On 4 June 2021, the applicant confirmed in a letter that his complaint was limited to a request that his status be “legalise[d]”, and that, accordingly, he sought a temporary visa and an acknowledgement that he “did not have any responsibility” for his entry and presence in Australia without valid travel documentation;

    On 9 June 2021, the delegate of the President of the Commission wrote to the Minister for the Department of Home Affairs to ascertain whether conciliation may resolve the applicant’s complaint.

    On 8 July 2021, the Department of Home Affairs wrote in response to the delegate of the President of the Commission and affirmed that, while it was not opposed to conciliation in principle, its position remained unchanged, and at this stage was not in a position to agree to, or participate in, conciliation;

    On 15 July 2021, the delegate of the President of the Commission informed the applicant of the Department of Home Affairs’ position;

    In a letter dated 19 July 2021, the applicant stated that he did not think that the prospect of an unproductive conciliation should preclude the Commission from “declining [his] complaint” based on the evidence before it.

The Decision

51    On 11 August 2021, the delegate of the President of the Commission made the relevant decision. That decision reads as follows:

My decision

Section 20(2)(c)(iib) of the AHRCA says that the Commission may decide not to continue to inquire into a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation.

The Commission has explored conciliation and obtained the parties’ views in relation to conciliation of the complaint. The Commission facilitated a conciliation process with both parties from November 2020 to July 2021.

Question 7 in the Commission’s notification of the complaint to the Department dated 23 November 2020 stated:

“Please advise whether the Department is willing to participate in a conciliation process in an attempt to resolve this matter. The Sovereign Soltan Qeumars Shah Qajar’s resolution proposal is contained on pages 6 and 7 of the complaint form.”

In response to Question 7 the Department stated as follows:

“The Commonwealth can only pay compensation to settle a monetary claim against the Department if there is a meaningful prospect of legal liability within the meaning of the Legal Services Directions 2017 and it would be within legal principle and practice to resolve this matter on those terms. Based on the current evidence, the Department’s position is that it is not appropriate to pay compensation in this instance.”

On 4 June 2021 you confirmed that you had revised your settlement proposal. In summary, you advised that:

“to resolve my complaint against the Commonwealth of Australia (Department of Home Affairs) I seek the following actions contained on page 7 on my complaint form dated 9 July 2020:

(a)    legalise my status so that I am a lawful non-citizen by providing me a lawful temporary visa authorising my presence in Australia as a lawful non-citizen;

(b)    acknowledge that I did not have any responsibility for my entry and presence in Australia without a lawful travel document.”

In a letter dated 8 July 2021, the Department responded to your revised resolution proposal. It advised:

•    The Department’s position on the matter regarding this complaint remains the same as set out in the previous response provided to the Commission on 27 January 2021.

•    Departmental records indicate that Mr Laghaifar claims to be Sovereign Soltan Qeumars Shah Qajar. However, the Department has not accepted this claim, and will refer to him by his official name Mr Sohail Laghaifar.

•    Mr Laghaifar arrived as a lawful non-citizen and he is now an Australian citizen.

•    While the Department is open to conciliation in principle, at this juncture the Department is not in a position to agree to, or participate in, conciliation.

The information currently before me indicates that the parties to this complaint have very different views on certain factual matters at the heart of your complaint alleging a breach of human rights.

I note that there is a dispute about what your true identity is, whether you are The Sovereign Soltan Qeumars Shah Qajar or Mr Sohail Laghaifar. There are also different views between the parties about whether you are a person who arrived in Australia as a lawful non-citizen or whether you were and remain an unlawful non-citizen. The parties also have different views about your Australian Citizenship status. The Department are of the view that you are an Australian Citizen who could contact DFAT to apply for travel documentation if you want to travel offshore. On the other hand, you are of the view that you are an unlawful non-citizen who has never applied for Australian Citizenship under any name whatsoever and are prevented from obtaining a travel document that would allow you to leave Australia.

The Commission facilitated an exchange of proposals in relation to the possible resolution of this matter. I understand that the complaint could not be resolved through this process because the parties could not agree to on how to resolve the complaint. In the circumstances, I have therefore decided not to continue to inquire into the complaint under section 20(2)(c)(iib) of the AHRCA, as I am satisfied that there is no reasonable prospect of the matter being settled by conciliation.

legal principles

52    Section 11 of the Act sets out the functions of the Commission. It relevantly states:

11 Functions of Commission

(1)    The functions of the Commission are:

…

(f)    to:

(i)    inquire into any act or practice that may be inconsistent with or contrary to any human right; and

(ii)    if the Commission considers it appropriate to do so— endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

…

(a)    on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant

53    Under s 20(1)(b) of the Act, the Commission is to undertake the functions referred to in s 11(1)(f) when “a complaint is made in writing to the Commission, by or on behalf of one or more persons aggrieved by an act or practice, alleging that the act or practice is inconsistent with or contrary to any human right”.

54    Under s 20(2) of the Act, “[t]he 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 any one of the subparagraphs of s 20(2) is applicable. This includes, under s 20(2)(c)(iib) of the Act where “the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation”. Section 20(2)(c)(iib) was inserted into the Act by the Human Rights Legislation Amendment Act 2017 (Cth) (Amending Act), with the purpose of permitting the Commission to “expeditiously dispose of human rights complaints, including those … where there is no reasonable prospect of the complaint being successfully resolved”: Explanatory Memorandum to the Amending Act at [40].

55    Although not precisely identified by the applicant in his Draft Further Amended Originating Application, it appears from his written submissions that he seeks judicial review under ss 3 and 5 of the ADJRA and s 39B of the Judiciary Act.

56    The scope of review of a decision made pursuant to a discretionary power exercised upon a state of satisfaction being reached by the decision-maker is subject to limitations. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [21], Allsop CJ, Besanko and O’Callaghan JJ stated:

The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131] and the cases cited at footnote 109.

57    In the absence of dishonesty, caprice or arbitrariness on the part of the decision-maker, it is often the case that where a decision-maker has acted upon circumstances which provide the foundation for a rational belief such that a state of satisfaction is reached, even where reasonable minds may differ, it will be difficult to demonstrate that the decision was reached unreasonably: Djokovic at [22] – [27]. See also R v Connell; Ex Parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; 69 CLR 407 at 430 – 431; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118–119; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]–[137]; Federal Commissioner of Taxation v Brian Hatch Timber Co. (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57.

58    With respect to the legal reasonableness of the decision, the following principles are useful:

    Legal unreasonableness cannot be confined to a glossary of words or phrases “such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [2].

    The “test for unreasonableness is necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11].

    Legal unreasonableness is to be ascertained by a consideration of the subject matter, purpose and scope of the relevant legislation: SZVFW at [88] – [90].

    The Court cannot purport to review the reasonableness of a decision made by the decision-maker in such a way as to descend into the merits of the decision: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].

    The Court must undertake a review of a decision on the grounds of legal unreasonableness within the “correct delimitation of the boundaries of decisional freedom and legal reasonableness”: Mowatt v Minister for Home Affairs (No 2) [2018] FCA 1157 at [24].

    Legal unreasonableness will not arise “[i]n circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes … simply because the Court disagrees, even emphatically, with the outcome or justification”: Stretton at [92].

    The Court should not “enter the zone of discretion committed to the administrator, by the judicial review judge forming his or her own conclusion”: Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513 at [37].

consideration

59    There are two issues which this Court must determine:

(1)    Whether the applicant should be granted leave to rely upon his Draft Further Amended Originating Application, dated 5 August 2025; and

(2)    Whether the applicant succeeds on his application for judicial review of the decision of the Commission made on 11 August 2021.

Further Amended Originating Application

60    As noted above at [17], the applicant appeared to rely on all his affidavit material filed in this proceeding. The applicant also relies upon:

    The Draft Further Amended Originating Application.

    The Draft Amended Constitutional Notice dated 8 August 2025.

61    The Ministers rely upon their written submissions dated 2 February 2022 and 1 September 2025.

62    The Court’s power to grant leave to amend is contained in r 8.21(1)(g)(i) of the Federal Court Rules 2011 (Cth) as follows:

8.21 Amendment generally

(1)    An applicant may apply to the Court for leave to amend an originating application for any reason, including:

…

(g)     to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or …

63    Consideration of whether to grant leave to amend an originating application must be undertaken in the context of s 37M of the Federal Court of Australia Act 1976 (Cth): Tamaya Resources Ltd (in Liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 at [125] (Gleeson J). Section 37M(1) provides:

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

64    At [127] of Tamaya Resources, Gleeson J summarised the relevant principles set out by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 when considering a grant of leave to amend, as follows:

The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 (“Cement Australia”) at [43]. Relevant matters the Court is to consider include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6)    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

65    The onus lies with the party seeking leave to amend: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

66    The Ministers rely upon [21] – [22] of Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; 176 FCR 66, in which Kenny J made the following observations with respect to an analogue of the relevant rules:

Order 11 rule 16 provides that, where a pleading has a tendency to cause prejudice, embarrassment or delay in the proceeding, the Court may order that it be struck out. Naturally, the Court would not give leave to amend in respect of a pleading that was liable to be struck out.

Order 13 rule 2 confers on the Court a wide discretion to allow amendment of a pleading in an appropriate case. If the matter that the amendment would raise is unlikely to succeed, then leave will generally not be given.

67    They also cite Medich v Bentley-Smythe Pty Ltd [2010] FCA 494, again with respect to a previous version of the Rules. The statements of Stone J at [7] – [8] are useful:

Order 13 of the Federal Court Rules provides that, at any stage of the proceeding, the Court may give a party leave to amend a document in the proceeding. Rule 2(2) provides that:

All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

The general principle is that leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment.

68    The Ministers point to Research in Motion and Medich as supporting their proposition that “[w]hile leave to amend should generally be granted, it should not be granted if the proposed amendment is futile, such that the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action”.

69    In his written submissions dated 6 August 2025, the applicant does not specifically address the relevant legal principles with respect to circumstances in which a party seeks leave to amend their originating application. Instead, the applicant makes a variety of submissions with respect to s 20(2)(c)(iib) of the Act, namely that it:

•    is beyond the legislative power of the Commonwealth;

•    conflicts with the duties, functions and powers of the Commission required by s.10A, s.11 (1) (f), (k), (n) and (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth);

•    serves no purpose in performance of the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth);

•    is a legislative and executive usurpation of Commonwealth judicial power that provides for a quasi-judicial function whereby a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth) can be dismissed without the essential requirements of the curial process and the obligation to act judicially, and offends the Doctrine of Separation of Powers designated by s.71 Chapter III of the Constitution; and/or

•    dispenses with performance of the duties, functions and powers of the Commission, which is ultra vires to the Treaty on International Covenant on Civil and Political Rights, Part II Article 2 and to the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth).

70    The applicant in those submissions also raises a “separate question involving interpretation of the Constitution”, and a further question as to whether s 38(a) of the Judiciary Act “excludes the jurisdiction of the Federal Court of Australia in this proceeding on the basis that it involves the Treaty”, presumably referring to the ICCPR. This mirrors the questions raised in the applicant’s constitutional notice (see above at [11] – [12]).

71    The Ministers oppose leave being granted for the applicant to rely upon his Draft Further Amended Originating Application. They do so on the basis that:

(1)    There have been “significant unexplained delays by the applicant in seeking to make these amendments”; and

(2)    The amendments themselves are “futile or have no reasonable prospects of success”.

72    I accept the Ministers’ contention that there has been significant and unexplained delay on the part of the applicant in raising the amendments contained within his Draft Further Amended Originating Application. These proceedings were commenced in 2021 and, save for the applicant’s application to the High Court for removal of these proceedings to that Court, the new grounds upon which the applicant seeks to rely have not previously been raised.

73    I also accept the Ministers’ contentions that the additional grounds contained within the applicant’s Draft Further Amended Originating Application are substantially without merit.

74    With respect to the applicant’s submission that s 38(a) of the Judiciary Act precludes the Court from deciding this proceeding, insofar as the matter involves the ICCPR, the applicant has proceeded on a misapprehension of the law. Section 38 of the Judiciary Act identifies the jurisdiction of State Courts and the High Court. Section 39B of the Judiciary Act governs the jurisdiction of this Court and confers upon the Federal Court the jurisdiction conferred on the High Court under ss 75(v) or 76(ii) of the Constitution. The Court by this section is empowered to engage in judicial review either by the grant of prerogative writs, or by way of jurisdiction arising under any law made by the Federal Parliament, such as the ADJRA. Consequently, it is clear that this Court has the relevant jurisdiction to determine this matter. The applicant’s argument, therefore, has no merit.

75    The applicant’s submission that s 20(2)(c)(iib) of the Act is invalid because it is beyond the legislative power of the Commonwealth has no basis in the material before this Court.

76    The Ministers direct the Court to the Commonwealth’s well-established power under section 51(xxix) to make laws implementing the Commonwealth’s obligations under international treaties. The Ministers refer, inter alia, to Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 at 486 – 487 (Industrial Relations Act Case) in support of the proposition that, by virtue of section 51(xxix), the Commonwealth Parliament may “make a law implementing (whether directly or otherwise) Australia’s obligations under a treaty”. In the Ministers’ submission, section 51(xxix) permits the Commonwealth Parliament “to give effect to Australia’s international obligations under treaties to which Australia is a party where the measure is reasonably capable of being considered appropriate and adapted to fulfilling the obligations (including reasonably apprehended obligations) and benefits of the treaty”.

77    Section 20(2)(c)(iib) of the Act confers on the Australian Human Rights Commission the power to decide not to continue to inquire into an act or practice if “the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation”. In this context, the Australian Human Rights Commission’s inquiry is directed at an “act or practice that may be inconsistent with or contrary to any human right”: s 11(1)(f) of the Act. “[H]uman rights” is defined to mean “the rights and freedoms recognised in the [ICCPR], declared by the Declarations or recognised or declared by any relevant international instrument”: s 3 of the Act.

78    Section 20(2)(c)(iib) of the Act supports the implementation of the Commonwealth’s obligations under the ICCPR, to which it is a signatory, by conferring upon the Commission powers of inquiry, conciliation and reporting in respect of acts or practices that may be inconsistent with any human right. The conferral of these powers under s 11(1)(f) of the Act and related provisions are supported by the Commonwealth’s legislative power under s 51(xxix) of the Constitution.

79    Section 20(2) of the Act sets out the circumstances in which the Commission may decide not to continue to inquire into the relevant act or practice and, as the Ministers submit, reflects “a legislative judgment as to an appropriate means of giving effect to the ICCPR in domestic law”.

80    As the Ministers submit, “it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end”: Industrial Relations Act Case at 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). Section 20(2)(c)(iib) of the Act clearly reflects the Commonwealth Parliament’s judgment as to how its obligations under the ICCPR are to be implemented.

81    The applicant’s submission regarding invalidity on the basis that s 20(2)(c)(iib) of the Act is beyond the legislative power of the Commonwealth fails.

82    The applicant further submits that s 20(2)(c)(iib) conflicts with ss 10A, 11(1)(f), (k), (n) and (p), 20A, 28 and 29(2) of the Act, and serves no purpose in the performance of the Commission’s duties, powers and functions in ss 10A, 11(1)(k), (n) and (p), 20A, 28 and 29(2) of the Act.

83    The Ministers refer this Court to the judgments of Gordon J in Brown v Tasmania [2017] HCA 43; 261 CLR 328 at [449] and Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; 274 CLR 325 at [18], among other authorities, in support of their submission that “[i]nconsistency between provisions within legislation does not result in the invalidity of one or other of those provisions; it involves a question of construction as to the statutory meaning”. Although partially in dissent in Sunland, the statement of principle articulated by Gordon J was not in doubt.

84    The Ministers also rightly direct this Court to Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414 as authority for the proposition that “a Court should not readily determine that a provision ‘serves no purpose’” (emphasis omitted). In Baume, Griffith CJ at 414 set out the well-established rule of statutory construction that courts should strive to interpret a statute such that “no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.

85    As these cases make clear the mere posited uncertainty of s 20(2)(c)(iib) or inconsistency between it and other provisions of the Act, which the applicant has not particularised, does not render the section invalid. On this basis alone, the applicant’s submission fails.

86    Additionally, even if inconsistency or uncertainty spelled legal invalidity, the applicant’s submission would fail because s 20(2)(c)(iib) is not inconsistent with the balance of the Act. Since its enactment, the Act has empowered the Commission to cease an inquiry. As set out above, s 20(2)(c)(iib) was introduced by the Amending Act to permit the Commission to dispose of human rights complaints where there is no reasonable prospect of success: Explanatory Memorandum to the Amending Act at [38] – [40].

87    In that regard the Commission’s power to decide not to continue an inquiry is in harmony with its functions of making inquiries, making reports and preparing guidelines in relation to any act or practice that may be inconsistent with or contrary to any human right. The text of the Act demonstrates that the Commission’s role is to effect the outcomes contemplated by ss 20A, 28 and 29(2), or exercise its functions under s 11, if such an outcome is feasible. However, the fact that s 20(2)(c)(iib) contemplates that futile cases will render such outcomes pointless does not mean that s 20(2)(c)(iib) is inconsistent with the above-mentioned provisions.

88    Therefore the applicant’s submission referred to in [82] is also rejected.

89    The applicant further submits that s 20(2)(c)(iib) “is a legislative and executive usurpation of Commonwealth judicial power that provides for a quasi-judicial function”. The applicant does not particularise this submission beyond an assertion that s 20(2)(c)(iib) allows “a complaint for breach of the International Covenant on Civil and Political Rights of the Australian Human Rights Commission Act 1986 (Cth) [to] be dismissed without the essential requirements of the curial process and the obligation to act judicially, and offends the Doctrine of Separation of Powers designated by s.71 Chapter III of the Constitution”.

90    The Ministers rightly refer this Court to Griffith CJ’s statement of principle in Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330 at 357:

I am of the opinion that the words “judicial power” as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

91    I accept the Ministers’ submission that the Commission “was performing an inquiry function in the present case, which is non-judicial in character”. This submission is supported by the text of the Act, which confers on the Commission powers to make reports to the relevant Minister and to make recommendations in relation to acts or practices which, in the Commission’s view, are inconsistent with or contrary to any human right: see ss 20A, 29(2) of the Act. The Ministers rightly point out that the Commission has no power to make binding determinations, and that its power is limited to making recommendations. In these circumstances, the power which the Commission exercises under s 20(2)(c)(iib) is not a “power to give a binding and authoritative decision”: Huddart Parker at 357.

92    The applicant has not shown how s 20(2)(c)(iib) involves an exercise of judicial power, and his submission fails.

93    With respect to the applicant’s submission that s 20(2)(c)(iib) “is ultra vires to the Treaty on International Covenant on Civil and Political Rights, Part II Article 2”, the Ministers refer to Minogue v Williams [2000] FCA 125; 60 ALD 366 at [25], in which a Full Court of the Federal Court affirmed the primary judge’s rejection of a submission that “the ICCPR has been incorporated into or has become part of Australian domestic law by reason of its reproduction as a schedule” to the Act, then known as the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

94    I accept the Ministers’ submission that “the provisions in the ICCPR have not been incorporated into or become part of domestic law by reason of their reproduction in the Act”. The ICCPR does not create justiciable rights for individuals, and there is therefore no basis for the applicant’s submission about purported inconsistency between s 20(2)(c)(iib) and Part II, Article 2 of the ICCPR.

95    In regard to the applicant’s submission that s 20(2)(c)(iib) is ultra vires “to the duties, functions and powers of the Commission set out in s.10A, s.11 (k), s.11 (n), s.11 (p), s.20A, s.28 and s.29 (2) of the Australian Human Rights Commission Act 1986 (Cth)”, any alleged inconsistency between s 20(2)(c)(iib) and other parts of the Act is dealt with at [86] – [88].

96    The applicant’s submission is rejected.

97    For the reasons that (1) there have been significant unexplained delays by the applicant in seeking to further amend his amended originating application, and (2) the amendments have no reasonable prospect of success, the applicant’s application to further amend his amended originating application is dismissed.

Application for Judicial Review

98    The applicant seeks review of the decision referred to at [1] above pursuant to the ADJRA and, alternatively, to s 39B of the Judiciary Act.

Review under the ADJRA

99    As noted above at [55], the applicant does not appear to identify the precise grounds upon which he seeks judicial review. However, it appears that the applicant relies upon at least ss 5(1)(c), (d), (e), (f), (h), 5(2)(b), and 7(1) of the ADJRA, because he raises, inter alia, the following grounds in his amended originating application:

(1)    The Commission’s failure “to take into account, or sufficiently take into, relevant evidence of the identity of the applicant and his status as an unlawful non-citizen”: compare s 5(1)(e), 5(2)(b) of the ADJRA.

(2)    The Commission’s failure to “take into account the lack of any evidence contrary to the relevant evidence of his identity and his status as an unlawful non-citizen”: compare s 5(1)(e), 5(2)(b) and s 5(1)(h) of the ADJRA.

(3)    The Commission’s “decision not to make further inquiry or decision … constitutes a failure to make a decision dealing with the substantive complaint”: compare s 7(1) of the ADJRA.

(4)    The Commission’s “decision not to make further inquiry or decision … does not amount to a decision that resolves the substantive complaint”: compare s 7(1) of the ADJRA.

(5)    The Commission’s decision is premised on s 20(2)(c)(iib) of the Act which does not “provide a lawful basis” to “arbitrarily dismiss[ing] a complaint for breach” of the ICCPR: compare s 5(c), (d) of the ADJRA.

100    The applicant’s substantive submissions can be broadly summarised as follows:

(1)    The Ministers had breached several of the Commonwealth’s obligations under international human rights treaties.

(2)    The Ministers’ actions, generally, were unlawful because there is “no justification, authorisation or excuse” for those actions.

(3)    Though the Commission had “chucked out” his complaint without dealing with it, this did “not take [away his] complaint”, or the underlying issues of his unlawful detention or false identity information documentation.

(4)    The Court should declare, under ss 189 and 196 of the Migration Act that the applicant is an unlawful non-citizen and either issue a visa in his true name or deport him, as these sections apply to him “immediately”.

(5)    The Court should grant “release” under s 39B of the Judiciary Act.

101    As already noted above at [17], the applicant appeared at the final hearing on the assumptions that (1) his evidence was not before the Court if he did not “take the stand in the witness box” and effectively swear to his evidence in open Court, and (2) the respondents were required to disprove his allegations or provide an alternative case or narrative.

102    Additionally, the applicant’s arguments often went squarely to the merits of the decision before the Commission. The applicant did not appear to understand that judicial review, whether under the ADJRA or the Judiciary Act, is targeted purely at whether the administrative decision-maker has made an error of law. A Court undertaking judicial review cannot remedy a decision simply because it considers the decision to be wrong or flawed, though this may be the indirect effect of a successful application for judicial review. A helpful explanation of this distinction is given by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35 – 36.

103    The Ministers’ submissions dated 9 February 2022 do not address each of the applicant’s grounds of review in detail. Instead, the Ministers confine their submissions to the issue in this matter, namely the state of satisfaction required by s 20(2)(c)(iib) of the Act that there is “no reasonable prospect” of a matter being settled by conciliation, which is the precondition to the exercise of the discretion contained in that section.

104    The legal principles relevant to reviewing the reasonableness of the exercise of a discretion conditioned on the decision-maker having reached a state of satisfaction are set out above at [58]. In particular, as the Ministers point out, the “test for unreasonableness is necessarily stringent”: SZVFW at [11]. Legal unreasonableness will not arise “[i]n circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes”: Stretton at [92].

105    The material before the delegate of the Commission indicated that:

(1)    There was a fundamental disagreement between the applicant and the Ministers regarding the applicant’s correct identity.

(2)    There was an irreconcilable dispute between the applicant and the Ministers as to the facts, including the circumstances of the applicant’s arrival in Australia.

(3)    The applicant and the Ministers fundamentally disagreed regarding the applicant’s legal status.

(4)    The second respondent was not in a position to conciliate.

106    The state of satisfaction required by s 20(2)(c)(iib) of the Act is that there is “no reasonable prospect of the matter being settled by conciliation”. Section 20(2)(c)(iib) of the Act does not require the Commission to determine the underlying issues; rather, it requires the Commission to assess whether, in the context of the parties’ respective positions, there is a reasonable prospect of agreement or settlement. The Commission is not required by s 20(2)(c)(iib) to take into account the applicant’s evidence of his substantive complaints, except insofar as this provides an indication of the parties’ respective positions. Further, as the Ministers submit and the above-cited authorities bear out, the Court cannot purport to review legal unreasonableness so as to descend into the merits of the Commission’s decision.

107    In these circumstances, the applicant’s arguments in his affidavits and written and oral submissions regarding the alleged factual and evidential bases for his complaint to the Commission, and his legal status as an unlawful non-citizen, are not to the point.

108    What is relevant is that the applicant and the Ministers held diametrically opposed views regarding the facts supporting the applicant’s complaint. In this context, the Commission’s decision not to make further inquiries into the applicant’s complaint could not be said to be legally unreasonable. Adopting the words of Wigney J in Stretton at [92], the Commission’s decision was “within the range of legally and factually justifiable outcomes”. It was clearly open on the evidence before the delegate of the Commission to conclude that there was no reasonable prospect of a settlement being reached between the applicant and the Ministers.

109    In this context, the preconditions to the exercise of the discretion under s 20(2)(c)(iib) existed at the time that the Commission made its decision. The exercise of the discretion to cease to inquire into an act or practice necessarily contemplates that the Commission would not consider the applicant’s substantive claims. This would put an end to whatever opportunity the applicant might assert he should have been granted “to have the substantive complaint and supporting evidence brought to the attention of the Minister” under ss 11(1)(k), 20A and 29(2) of the Act, and then subsequently tabled in Parliament under s 46 of the Act.

110    As noted already, the applicant’s submissions regarding the evidentiary bases of his substantive claims are not relevant to judicial review of the Commission’s decision under s 20(2)(iib), except insofar as his evidence provides an indication of the parties’ respective positions and thus goes to the question of whether the Commission’s that there is “no reasonable prospect of the matter being settled by conciliation” was within the bounds of legal reasonableness.

111    The applicant’s application for judicial review under the ADJRA fails.

Alleged breaches of the applicant’s rights under the ICCPR and the Act

112    The applicant additionally submits at various points that the respondents have interfered with his rights under the ICCPR and the Act. This also appears to be the basis of the ground of his amended originating application extracted above at [5][1.2](a). As noted above at [93] – [94], neither the ratification of the ICCPR nor its inclusion as a schedule to the Act have the effect of incorporating the ICCPR into domestic law: Minogue at [25]. The result is that neither the ICCPR nor the Act grants justiciable rights to the applicant permitting him to bring proceedings in this Court for alleged breaches.

113    Therefore, the applicant’s submissions to the effect that the Ministers’ acts or practices are “inconsistent with”, and “continue to offend against”, the rights and protections contained in the ICCPR, do not advance the applicant’s case.

Review under the Judiciary Act

114    The applicant additionally applies for review under s 39B of the Judiciary Act and r 31.01 of the Rules regarding matters “which arise out of, relate to or are connected with the same subject matter relevant to the review” sought under the ADJRA. The thrust of the application appears to be that the applicant is being unlawfully detained in Australia, and that the Ministers are required to state the basis for this detention.

115    As the Ministers rightly submit, the relief sought by the applicant in respect of his alleged unlawful detention and his status as an unlawful non-citizen have nothing to do with the Commission’s decision not to inquire further under s 20(2)(c)(iib) of the Act, and therefore the requirements of rule 31.01 of the Rules are not met.

116    Further, as the Ministers submit, the orders which the applicant invites this Court to make with respect to his alleged unlawful detention are beyond the Court’s power. I accept the Ministers’ submission that decisions regarding the applicant’s status as an unlawful non-citizen, and the provision of visa and travel documentation, are administrative acts, and “the Court cannot exercise administrative power or undertake merits review”.

117    Finally, in any event, and even assuming that the applicant has sought relief which is within the Court’s power to grant, the applicant has not provided any evidence that he is currently being detained. The applicant is an Australian citizen and is free to apply for travel documentation. On his own evidence, he has resided in Queensland for many years without constraint. The evidential basis for the applicant’s application for review under s 39B of the Judiciary Act is not established.

Conclusion

118    For the reasons given above, the applicant’s application for judicial review and his application to further amend his amended originating application should be dismissed with costs.

Associate:

Dated:    14 May 2026