MZZHZ v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 1273

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MZZHZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1273

File number(s): MLG 320 of 2013;
MLG 2780 of 2017

Judgment of: JUDGE LUCEV

Date of judgment: 25 November 2024

Catchwords:
MIGRATION – Where application for judicial review of decision of Refugee Review Tribunal dismissed by a Registrar for non-appearance at first Court hearing – where Notice of Discontinuance subsequently filed in respect of dismissed proceedings – where subsequent judgment of the Full Court of the Federal Court in another matter that Registrar’s had no power to dismiss application for non-appearance at first Court hearing – whether Registrar’s order void from the beginning – where Court an inferior court of record – where Registrar’s order for dismissal of application subsequently set aside by consent – whether originating application still on foot

PRACTICE AND PROCEDURE – Notice of Discontinuance - application to set aside – whether Notice of Discontinuance inoperative or ineffective – effect of applicant’s illiteracy in native and English languages – date of effect of Notice of Discontinuance – whether mandatory requirement to serve Notice of Discontinuance - whether originating application still on foot – whether Notice of Discontinuance to be set aside

PRACTICE AND PROCEDURE – Extension of time in which to file a judicial review application – factors – where very substantial delay of more than four years and nine months – observations on effect of very substantial delay – whether adequate explanation for delay – effect of applicant’s illiteracy in native and English languages – effect of application for Ministerial intervention – whether prejudice – whether proposed grounds of review reasonably arguable

MIGRATION – Judicial review – decision of the Refugee Review Tribunal – application for an extension of time to file judicial review application –– citizen of Afghanistan of Tajik ethnicity – whether Refugee Review Tribunal constructively failed to consider whether applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed to Afghanistan – whether erroneous construction that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree – whether incorrect test applied for serious harm – use of phrase “systematic serious harm” – whether proposed grounds of review reasonably arguable – whether material jurisdictional error

Legislation:
Administrative Review Tribunal (Consequential and Transitional Provisions (No 1) Act 2024 (Cth), s 4, sch 16, Pt 2, Item 10, Pt 5, Item 25

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9, 10, 44, 138, 189

Federal Circuit Court of Australia Act 1999 (Cth) ss 15, 57

Federal Court of Australia Act 1976 (Cth) s 23

Migration Act 1958 (Cth) ss 36, 91R, 417, 474, 476, 477

Federal Circuit Court Rules 2001 (Cth) rr 13.01, 13.03C

Cases cited:
ADH17 v Minister for Immigration and Border Protection [2020] FCA 53

ADN15 v Minister for Immigration and Border Protection [2016] FCA 810

AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884

AMF15 v Minster for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 238 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150

BBU15 v Minister for Home Affairs [2019] FCA 1324

BCX16 v Minister for Immigration [2019] FCA 465

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Borra v Minister for Immigration & Anor [2013] FCCA 1216

BQB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 535

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1

Broad Spectrum Training Pty Ltd v Bidding Buz Ltd [2010] FMCA 932; (2010) 244 FLR 335

BTI15 v Minister for Immigration and Border Protection [2020] FCA 681

BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83

BZAGD v Minister for Immigration and Border Protection [2016] FCA 670

CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699

CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1

CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412

Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424

CID15 v Minister for Immigration and Border Protection [2017] FCA 780

CNC15 v Federal Circuit Court of Australia [2017] FCA 1540

CNM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1358

Craig v State of South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; (1995) 82 A Crim R 359

CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305

DAJ19 v Minister for Immigration [2020] FCCA 2142

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475; (2020) 382 ALR 246

DQU16 v Minister for Immigration [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

DZY17 v Minister for Home Affairs [2018] FCAFC 196

EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3271

FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 59

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479

Genovese v BGC Construction Pty Ltd [2006] FMCA 1507

Gill v Minister for Immigration and Border Protection [2014] FCCA 1929

Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31

Haji Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374; (1999) 94 FCR 259

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315

Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; (2010) 84 ALJR 154; (2010) 262 ALR 569; (2010) 113 ALD 1; (2010) 190 IR 437

Kosovich v Mancini (1982) 31 SASR 272

M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24

McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109

Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590; (2017) 347 ALR 62

Minister for Immigration and Citizenship v SZCFW (2007) 161 FCR 441

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1; (2000) 74 ALJR 1556; (2000) 175 ALR 585; (2000) 62 ALD 1

Moussa v Minister for Immigration and Border Protection [2015] FCA 1280

MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

MZZLD v Minister for Immigration (No 2) [2017] FCA 31

MZZZL v Minister for Immigration & Anor [2014] FCCA 1309

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118; (2013) 230 A Crim R 16; (2013) 87 ALJR 737; (2013) 298 ALR 144

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33; (2021) 95 ALJR 128; (2021) 386 ALR 212; (2021) 246 LGERA 293

Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435; (1999) 73 ALJR 687; (1999) 162 ALR 336

Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490

Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491

Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411

Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470

SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702

SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234

SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

SZVJE v Minister for Immigration [2016] FCCA 594

Tran v Minister for Immigration and Border Protection [2014] FCA 533

TTY167 v Republic of Nauru [2018] HCA 61; (2018) 362 ALR 241

Tu’uta Katoa v Minister for Immigration [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604

VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602

Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104

Wei v Minister for Immigration & Anor [2013] FCCA 262

Woods v Bate (1986) 7 NSWLR 560

WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736

WZANW v Minister for Immigration & Anor [2009] FMCA 1075

WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398

Division: Division 2 General Federal Law

Number of paragraphs: 186

Date of last submission/s: 22 June 2023

Date of hearing: 23 February 2023 (MLG 2780 of 2017 only) and
22 June 2023

Place: Perth

Counsel for the Applicant: Dr McBeth

Solicitor for the Applicant: Clothier Anderson

Counsel for the First Respondent: Mr Barrington

Solicitor for the Respondents: Clayton Utz

Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 320 of 2013;
MLG 2780 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MZZHZ

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

25 NOVEMBER 2024

THE COURT:
1.In matter number MLG 320 of 2013 the Court orders that the Applicant’s amended originating application filed 30 May 2023 be dismissed insofar as it seeks to set aside the Notice of Discontinuance filed by the Applicant on 9 October 2013.
2.In matter number MLG 320 of 2013 the Court declares that the Notice of Discontinuance filed by the Applicant on 9 October 2013 had the effect of validly discontinuing the Applicant’s originating application filed on 15 March 2013.
3.In matter number MLG 2780 of 2017 the Court orders that the Applicant’s application filed 19 December 2017 to extend time for the filing of an originating application, as amended by the Applicant’s amended application filed 25 November 2021 to extend time for the filing of an originating application, be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION

There are two applications before the Court:
(a)in MLG 320/2013 an application to treat as inoperative or of no effect or to set aside, if necessary, a Notice of Discontinuance purportedly filed by the applicant, MZZHZ, on 9 October 2013 (“Set Aside Application”), and if the Notice of Discontinuance is set aside or is otherwise inoperative or ineffective, to deal with a now amended judicial review application, originally filed on 15 March 2013 in the then Federal Magistrates Court (“First Judicial Review Application”), which had, prior to the filing of the Notice of Discontinuance, been dismissed on 1 May 2013 for non-appearance at a first Court hearing by a Registrar of the then Federal Circuit Court (“Registrar’s Dismissal Order”); and
(b)in MLG 2780/2017 an application, originally made on 19 December 2017, for an extension of time (“Extension of Time Application”) under s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file a, now amended, application for judicial review (“Proposed Second Judicial Review Application”), and if an extension of time is granted, to determine the Proposed Second Judicial Review Application (in relation to determining the Proposed Second Judicial Review Application, or the First Judicial Review Application if it remained on foot, see Transcript, 22 June 2023, pp 3-5).
Both the First Judicial Review Application and the Proposed Second Judicial Review Application, as both amended, seek review, on the same grounds, under s 476(1) of the Migration Act of the same 2013 decision of the then Refugee Review Tribunal (“Tribunal Decision” and “Tribunal”) respectively to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”). The Tribunal Decision dated 7 February 2013 was to refuse MZZHZ a Protection Class XA Visa (“Protection Visa”). The Tribunal Decision appears in the Court Book (“CB”) at CB 318-383, and again at CB 600-665. The CB was marked as Exhibit 1 at a hearing on 22 June 2023.
By reason of an order made on 7 March 2023 in relation to the First Judicial Review Application changing the name of the second respondent to the Administrative Appeals Tribunal, and otherwise by reason of the Administrative Review Tribunal (Consequential and Transitional Provisions (No 1) Act 2024 (Cth), s 4, sch 16, Part 2, Item 10, and Part 5, Item 25, the Administrative Review Tribunal is substituted for the Tribunal as a party to both proceedings.
HISTORY OF THE MATTERS
These matters have a very lengthy and relatively complex history, especially as it relates to its litigation history in this Court (including the Federal Magistrates Court and the Federal Circuit Court). It will, hopefully, be of some assistance to set out significant parts of the history of the matters as they relate to the making of the Protection Visa application, the Delegate’s Decision, a request by MZZHZ for Ministerial intervention (“Ministerial Intervention Request”) the Tribunal Decision and the litigation history of both matters in this Court.
Protection Visa application, Delegate’s Decision and Tribunal Decision
MZZHZ was born in Afghanistan: CB 55, seemingly some time in the mid to late 1980’s: CB 2 (1985) and 55 (1988), but appears to have spent almost all of his life in Pakistan: CB 4, 12, 25, 70-71 and 239. MZZHZ arrived in Australia, at Christmas Island, on 22 February 2012: CB 1.
In an Irregular Maritime Arrival Entry Interview conducted on 16 March 2012 MZZHZ rated his English language capabilities as “Poor”: CB 27, Q22.
The Protection Visa application was made by MZZHZ on 27 June 2012.
On 22 August 2012 the Delegate’s Decision was to refuse the Protection Visa on the basis that:
(a)MZZHZ’s claims regarding the risk to him were not credible;
(b)he was not at any more risk than any other citizen of Afghanistan; and
(c)there were not substantial grounds for believing that, as a necessary and foreseeable consequence of MZZHZ being removed from Australia, there was a real risk MZZHZ will suffer significant harm if he is returned to Afghanistan: CB 147-159.
Later on 22 August 2012, with the assistance of a migration agent, MZZHZ applied to the Tribunal for review of the Delegate’s Decision (“Tribunal Review Application”): CB 161-171.
On 7 September 2012 the Tribunal wrote to MZZHZ’s lawyer inviting MZZHZ to appear before the Tribunal for a hearing of the Tribunal Review Application on 1 November 2012 (“Tribunal Hearing”): CB 208-216.
On 2 November 2012 the Tribunal wrote to the parties to advise that the Tribunal Hearing was to be rescheduled to 14 December 2012, the Presiding Member of the Tribunal having been unable to conduct the Tribunal Hearing on 1 November 2012: CB 281-289.
On 14 December 2012 MZZHZ and his then representative attended the Tribunal Hearing, and MZZHZ had the assistance of a Dari interpreter. The Tribunal Hearing went for a little under three hours: CB 306-309.
On 8 February 2013 the Tribunal published the Tribunal Decision which was to affirm the Delegate’s Decision: CB 318-383.
First Judicial Review Application
On 15 March 2013 the First Judicial Review Application was filed by MZZHZ in the then Federal Magistrates Court, and in which MZZHZ:
(a)applied for an extension of time under s 477(2) of the Migration Act (an extension of time which was not required); and
(b)provided grounds of application alleging a denial of procedural fairness and that the wrong legal test was applied by the Tribunal: CB 394-399.
As a consequence of the Registrar’s Dismissal Order the First Judicial Review Application was dismissed by a Registrar of the then Federal Circuit Court at the first Court date on 1 May 2013, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), because there was no appearance by MZZHZ: CB 473.
On 9 October 2013 a Notice of Discontinuance was filed by MZZHZ: CB 474-475.
On or about 20 October 2015 MZZHZ made the Ministerial Intervention Request pursuant to s 417 of the Migration Act: CB 481-483, and attached a number of documents: CB 484-554. In setting out the background to the matter MZZHZ referred to the fact that he had applied for a Protection Visa which had been refused on 22 August 2012 (the Delegate’s Decision) and he had then applied to the Tribunal on 28 August 2012 and that the Tribunal Decision had affirmed the Delegate’s Decision on 8 February 2013. The Ministerial Intervention Request does not advert in any way to the First Judicial Review Application, the Registrar’s Dismissal Order or the Notice of Discontinuance.
On 12 February 2016 MZZHZ was advised that the then Minister had personally considered his case and decided that it would not be in the public interest to intervene, and therefore had not exercised the power under s 417 of the Migration Act in MZZHZ’s case: CB 555-556.
On 2 August 2017, more than four years after the making of the Registrar’s Dismissal Order, the Full Court of the Federal Court handed down judgment in Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590; (2017) 347 ALR 62 (“BJC16”), in which it was held that only the Court constituted by a Judge or the Chief Judge (and not a Registrar) had power under r 13.03C(1)(c) of the FCC Rules to dismiss an application at a first Court date for non-appearance by an applicant: BJC16 at [63]-[64] per Kenny, Griffiths and Mortimer JJ.

On 18 October 2017 MZZHZ filed a Notice of Address for Service with the address for service being that of a firm of lawyers, namely, Clothier Anderson Immigration Lawyers (“Clothier Anderson”): CB 476-477. The Notice of Address for Service indicated that it was giving notice of a change in legal representation, notwithstanding that no Notice of Address for Service had ever been filed by lawyers for MZZHZ in relation to the First Judicial Review Application, because no lawyers had appeared for MZZHZ in relation to the First Judicial Review Application until Clothier Anderson came on the record. At this time the Extension of Time Application was still two months away from being filed: see below at [23].
Eight days later on 26 October 2017 Clothier Anderson filed a Notice of Intention to Withdraw as Lawyer, noting that there was no next listing date for the First Judicial Review Application before the Court: CB 478-480.
Nothing further occurred in relation to the First Judicial Review Application until February 2023 when the Extension of Time Application then came on for hearing before Judge Lucev. The further history in relation to the Extension of Time Application, the First Judicial Review Application and the Set Aside Application after February 2023 is set out at [43]-[47] below.
The Extension of Time Application
The Extension of Time Application (within which is the Proposed Second Judicial Review Application) was filed on 19 December 2017 by Clothier Anderson on behalf of MZZHZ. The grounds of the Extension of Time Application are “[o]n the grounds set out in the affidavit of the Applicant sworn 13 December 2017” (“MZZHZ’s December 2017 Affidavit”), which was filed on 19 December 2017, the content of which appears at [49] below. The grounds of the Proposed Second Judicial Review Application appear at [154] and [171] below.
On 4 September 2018, almost nine months after the filing of the Extension of Time Application, a Registrar of the Court made the then usual programming orders, including orders:
(a)for the Minister to file and serve a Court Book;
(b)permitting MZZHZ to file any amended Extension of Time Application, a supplementary Court Book, any further and other affidavit evidence in support of the Extension of Time Application, and written submissions;
(c)permitting the Minister to file written submissions; and
(d)listing the Extension of Time Application for hearing almost two years later on 17 August 2020 before Judge Mercuri, and if an extension of time were granted, a hearing of the Proposed Second Judicial Review Application.
On 18 September 2018 the CB was filed by the Minister. The CB contained, in addition to the Department and Tribunal documents, the Court documents from the First Judicial Review Application and the Ministerial Intervention Request documents: see CB 394-480 and 481-554 respectively.
On 11 December 2019 the parties were emailed a Notice of Adjournment dated 12 December 2019 advising “that the hearing on 17 August 2020 had been vacated and this proceeding has been adjourned to a date to be fixed”. No reason was given for the adjournment.
On 10 September 2021 the parties were advised that the matter had been listed for hearing on 8 December 2021 before Judge Davis.
On 12 November 2021 Judge Davis made orders setting aside the programming orders in [24(b) and (c)] above, and made new orders replicating those orders with new timeframes for filing (25 November 2021 for MZZHZ and 3 December 2021 for the Minister);
On 25 November 2021 MZZHZ filed:
(a)an amended Extension of Time Application, containing amended grounds for the Proposed Second Judicial Review Application which appear at [154] and [171] below;
(b)an affidavit, affirmed the same day (“MZZHZ’s November 2021 Affidavit”), the content of which appears at [50] below; and
(c)an outline of submissions (“MZZHZ’s November 2021 Submissions”).
On 3 December 2021 the Minister filed an outline of submissions (“Minister’s December 2021 Submissions”).
Although both MZZHZ’s November 2021 Submissions and the Minister’s December 2021 Submissions advert to the First Judicial Review Application, the Registrar’s Dismissal Order, the filing of the Notice of Discontinuance, and the judgment of the Full Court of the Federal Court in BJC16, it is apparent that no consideration was given to whether the First Judicial Review Application might still be on foot (because of the effect of BJC16) or whether the Notice of Discontinuance had any effect or ought to be set aside.
On 8 December 2021 the Extension of Time Application was heard by Judge Davis, and at the conclusion of the hearing the following Orders and Notes (“Court’s December 2021 Orders”) were made:
THE COURT ORDERS THAT:
1. The Respondent file any written submissions limited to any response to the oral submissions of counsel for the Applicant regarding the decision in FOA18 v Minister for Immigration [2020] FCA 815 by 15 December 2021.
2.If the extension of time application is upheld, the parties file any further written submissions on the substantive grounds of judicial review.
THE COURT NOTES THAT:
A.The Minister reserves the right to make submissions regarding the exercise of the discretion to refuse relief in the event that the extension of time is granted.
B.The Court reserves its decision on the extension of time application and will deliver its judgment on a date to be fixed.
On 15 December 2021 the Minister’s lawyers advised Judge Davis’ Associate that no submissions in response would be filed pursuant to order 1 of the Court’s December 2021 Orders.
Judge Davis resigned from the Court before delivering Reasons for Judgment.
On 24 May 2022 the Chief Judge made an order that the Extension of Time Application be listed for a directions hearing before him on 31 May 2022.
On 30 May 2022 the Chief Judge made consent orders (“Court’s May 2022 Orders”) including the following orders:
2. The directions hearing listed for 31 May 2022 be vacated.
3.Pursuant to rule 29.11(1)(c) of the Rules, the matter be listed on a date to be advised for hearing of the application for an extension of time and, if granted, for final hearing.
4.The applicant file and serve any written submissions 28 days before the hearing.
5.The first respondent file and serve any written submissions 14 days before the hearing.
On 2 June 2022 the parties were advised by the Court that the Extension of Time Application was listed for hearing, and if an extension of time were granted, a hearing of the Proposed Second Judicial Review Application, on 7 September 2022 before Judge Kendall.
On 7 June 2022 the matter was re-docketed to, and listed for directions on 24 June 2022 before, Judge Lucev.
On 15 June 2022 the parties sent a joint communication to the Court advising that they were “content” to proceed on the basis of the Court’s May 2022 Orders and the hearing on 7 September 2022 listed before Judge Kendall.
On 16 June 2022 the Court advised the parties that, on the basis of their agreement expressed in their joint communication to the Court, that the 24 June 2022 directions hearing would be vacated and the matter would proceed as they suggested, save that the hearing of the Extension of Time Application, and if an extension of time were granted, a hearing of the Proposed Second Judicial Review Application, on 7 September 2022, would be before Judge Lucev.
On 25 July 2022 the Court advised the parties that due to reasons associated with judicial hearing workloads and outstanding judgments the hearing on 7 September 2022 had been re-listed to 23 February 2023.
Pursuant to the Court’s May 2022 Orders:
(a)MZZHZ filed an outline of submissions on 25 January 2023; and
(b)the Minister filed an outline of submissions on 9 February 2023.
When the matter came on for hearing of the Extension of Time Application on 23 February 2023 the Court raised a number of issues with the parties, including:
(a)whether it might be arguable that the First Judicial Review Application might still be on foot if the Registrar’s Dismissal Order was void or voidable by reason of the judgment in BJC16;
(b)what effect the Notice of Discontinuance might or might not have if the Registrar’s Dismissal Order was void or voidable, bearing in mind also that in the First Judicial Review Application proceedings there had been no order or declaration sought or made post-BJC16 concerning the Registrar’s Dismissal Order;
(c)why the Notice of Discontinuance was filed in the First Judicial Review Application proceedings at a time (pre-BJC16) when those proceedings stood dismissed, and why the Notice of Discontinuance was accepted by the Melbourne Registry of the then Federal Circuit Court, and whether its filing or its acceptance might affect the integrity of the Court’s processes; and
(d)whether the Notice of Discontinuance in the First Judicial Review Application proceedings ought to be of no effect or be set aside, and whether the Court could do that in the Extension of Time Application proceedings, and whether there would need to be an application to re-open the First Judicial Review Application, and, if that occurred, whether both the First Judicial Review Application and the Extension of Time Application ought to be heard together.
Sensibly, both Counsel agreed that the Extension of Time Application should be adjourned for a short period to facilitate discussion about appropriate future orders. Accordingly, the Court ordered that the Extension of Time Application be adjourned to 7 March 2023.
The 7 March 2023 Orders
On 7 March 2023 the Court made a consent order in the:
(a)First Judicial Review Application (“March 2023 First Judicial Review Application Order”) as follows:
1.Order 1 of the orders of Registrar Allaway made on 1 May 2013 dismissing the application pursuant to rule 13.03C(l)(c) of the Federal Circuit and Family Court Rules 2001 (Cth) be set aside.
2.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs.”
3.The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
4.A hearing before his Honour Judge Lucev be listed, on a date to be fixed, of:
(a)the application seeking an order that the Notice of Discontinuance filed on 9 October 2013 be set aside and, if granted, for final hearing; and
(b)       proceeding MLG2780/2017.
5.The parties be given leave to rely on the Court Book filed in the matter of MLG2780/2017 on 19 September 2018.
6.The applicant file and serve the following at least 28 days before the hearing:
(a)       an amended application, if any;
(b)       written submissions; and
(c)       any additional evidence on which the applicant seeks to rely.
7.The first respondent file and serve any written submissions and any additional evidence 14 days before the hearing.
(b)Extension of Time Application (“March 2023 Extension of Time Application Order”) as follows:
1.        The directions hearing listed for 7 March 2023 be vacated.
2.        A hearing before his Honour Judge Lucev be listed, on a date to be fixed, of:
(a)the application for an extension of time and, if granted, for final hearing; and
(b)       proceeding MLG320/2013.
Further History of the First Judicial Review Application
In accordance with the March 2023 First Judicial Review Application Order:
(a)on 26 May 2023 MZZHZ filed:
(i)an amended First Judicial Review Application (including the Set Aside Application); and
(ii)an outline of submissions; and
(b)on 7 June 2023 the Minister filed an outline of submissions.
Hearing
As a consequence of the March 2023 First Judicial Review Application Order and the March 2023 Extension of Time Application Order, the Set Aside Application, the Extension of Time Application, and, if necessary, the First Judicial Review Application and the Proposed Second Judicial Review Application were listed to be further heard together on 22 June 2023 before Judge Lucev. The further hearing proceeded on that date.
MZZHZ’S EVIDENCE
At hearing MZZHZ’s December 2017 and November 2021 Affidavits were tendered by MZZHZ, without any objection from the Minister, and there was no application by the Minister to cross-examine MZZHZ.
In MZZHZ’s December 2017 Affidavit MZZHZ said as follows at [3]-[15]:
3.After my visa was refused, I sought review in the Refugee Review Tribunal (“Tribunal”). I do not recall my Tribunal hearing very well. I have also looked the decision of the Tribunal briefly with my current solicitor. I do not read English. However, she has explained to me that the decision record indicates that my representative attended the hearing with me. She has also shown me paperwork suggest that the decision was faxed to BMA Lawyers. Annexed hereto and marked ‘NH-3’ is a copy of that decision record.
4.Despite this, I do not remember the specifics of the advice I received after the Tribunal's decision. I remember that somebody called me and advised me that the Tribunal had rejected my case. I also have a letter dated 13 February 2013 from Jagrup Pangly of BMA Lawyers confirming that the Tribunal had made a negative decision in my case. The letter suggested that I contact Victoria Legal Aid. Annexed hereto and marked ‘NH-4’ is a copy of that letter.
5.I have very little memory of the events following this. I do not remember attending or contacting Victoria Legal Aid specifically or obtaining further legal advice from third parties. This does mean that it did not happen. My memory now is very bad. I have been deeply stressed and anxious about my family and my future for at least five years now. I cannot recall significant details of my case and personal history.
6.I am aware, though, that on 15 March 2013, I issued proceedings in the Federal Circuit Court. I remember that someone came with me to help, but I do not remember who this was. I have reviewed the Court application with my current solicitor and I still do not remember who came with me. A copy of that application and my affidavit is annexed hereto and marked ‘NH-5.’ I cannot explain the two errors set out in that application on page 3 listed under ‘Grounds of Application’ I do not recognise the handwriting on page 2. I believe though that the signature on page 4 is mine.
7.My current solicitor has told me that according to the Court’s online website, on 1 May 2013, there was a directions hearing listed before Registrar Allaway. A printout of the website is annexed hereto and marked ‘NH-6.’ I do not recall whether I attended Court on that day or not. I do not remember engaging with the Court process or receiving any paperwork about it. My current solicitor has shown me orders made by the Court on that date which suggest that because I was not there, the application was dismissed by the Registrar. A copy of those orders is annexed hereto and marked ‘NH-7’. To my best recollection, I did not realise that I was supposed to attend the Court on that day, and I did not make a deliberate decision not to attend. I wanted to try to pursue my case because I am afraid of returning to Afghanistan.
8.On or around 9 October 2013, I understand that a Notice of Discontinuance was filed. My current solicitor has shown me a copy of that document and I do not know how it came to be filed or drafted. I do not recall how that document came to be filed at all. Annexed hereto and marked ‘NS-8’ is a copy of that Notice of Discontinuance.
9.I am also aware that I made a request for Ministerial intervention about two years ago. I have reviewed the document submitted on my behalf to the Minister, which I had kept a copy of in my personal file. I know that I did not type this in English myself because I do not know how to do this, and one of my friends or contacts must have helped me. I have many contacts here in the Afghan community who have helped me along the way and who are very kind. Annexed hereto and marked ‘NS-9 is a copy of my request dated 14 October 2015 and the response from the Minister dated 12 February 2016.
10.I have also been given some support by the Asylum Seeker Resource Centre in Footscray over time, although to my best recollection, they have not given me legal advice. Rather they have helped me with practical things like accommodation and groceries.
11.When I received the Department's letter telling me that the Minister had not intervened in my case, I kept it, but I did not really understand the meaning of the detail in the letter. To my best recollection, I did not obtain or receive any legal advice about the content of that letter or what it meant for my chances of staying in Australia.
12.Around one year ago, someone from the Department of Immigration called me and told me I needed to make arrangements to depart Australia. The Department officer told me I needed to stop working and since then, I have not worked. My friends in Australia in the Afghan community support me financially.
13.I have not seen a psychologist or a counsellor since I arrived in Australia, but I worry constantly for my fiance’s safety. Her name is Frahnaz. My two sisters and one brother still live in Khushi, in Logar province, as do my parents. I had an uncle murdered by Taliban called Haider Ali. He was always helping people in the Shia community and he was kidnapped and beheaded. This makes me very afraid to return to Afghanistan. I do not sleep well and I worry constantly about my and my family’s future. Since I arrived in Australia, I have lost a great deal of body weight. I simply cannot remember the details of my Court case in Australia and think constantly about facing death if I go back home.
14.In around mid-2017, I sought the advice of Clothier Anderson Immigration Lawyers and engaged them to investigate whether the Department had taken steps to undertake an International Treaties Obligation Assessment process or what they called a ‘Pre-Removal Protection Check.’ They advised me that triggering these processes could be a way for the Department to assess my claims for protection. However, after some time, they advised me that they did not consider that the Department would agree to engage in these processes.
15.Over the next several months, my solicitors obtained a transcript of my Tribunal hearing a copy of my files held by the Court and by my previous solicitors, BMA Lawyers. Annexed hereto and marked ‘NS-10’ is a copy of that transcript. Upon my instructions, they briefed counsel to advise as to possible errors in my Tribunal decision. In November 2017, after I had saved further funds, they gave me costs agreement to commence a judicial review application.
In MZZHZ’s November 2021 Affidavit MZZHZ said as follows at [2]-[4]:
2.I attended Parachinar Primary school for around three years from about 1995 to 1998 to the best of my recollection and this is my entire education.
3.I confirm that I am illiterate. I do not write or read in Dari or any other language. I can speak Dari, a little Urdu and a little Pashto but I do not speak more than a few words of English.
4.My memory is very poor and I remember very little about my previous Federal Circuit Court case. I have always, however, wanted to fight to get my visa as I am afraid I will be killed if l return to Afghanistan.
SET ASIDE APPLICATION
Order sought
The Set Aside Application formally seeks an order that the Notice of Discontinuance be set aside. MZZHZ’s submissions, however, expanded what was sought to include a declaration that the Notice of Discontinuance was inoperative or ineffective, and ought to be set aside on that basis.
The Notice of Discontinuance
FCC Rules

Rule 13.01 of the FCC Rules in force at the time the Notice of Discontinuance was filed relevantly provided that:
(1)A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.
(2)       A notice of discontinuance may be filed:
(a)at least 14 days before the day fixed for the final hearing of the application; or
(b)       with the leave of the Court or a Registrar, at a later time.
(3)       ….
(4)A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party to the proceeding.
Form
The Notice of Discontinuance is on the then standard form for discontinuance of a proceeding. It bears the heading “NOTICE OF DISCONTINUANCE”. In the body of the Notice of Discontinuance:
(a)MZZHZ’s given and family names are provided as the name of the person filing the Notice of Discontinuance;
(b)it is indicated that the application that MZZHZ wants to discontinue is titled “Application” and was filed on “15/3/13” (15 March 2013 being the date of the filing of the First Judicial Review Application);
(c)under the heading “which of the orders you applied for do you want to discontinue?” the box for “all of them” has been ticked;
(d)the Notice of Discontinuance bears a signature said to be that of MZZHZ (giving his given and family names); and
(e)the Notice of Discontinuance is dated “9/10/13”, and indicates it was prepared by the person giving the notice, namely MZZHZ.
The Notice of Discontinuance has been stamped “PROCESS”, with the stamp containing the seal of the Court, the date “- 9 OCT 2013” and the words “filed/presented” and “FEE PAID”.
Issues in relation to the Notice of Discontinuance
Two issues arise in relation to the Notice of Discontinuance. They are:
(a)whether, to put it broadly, the Notice of Discontinuance was incompetent or inoperative at and from the time of its filing; and
(b)if not incompetent or inoperative, whether the Notice of Discontinuance should, in any event, be set aside.
Whether the Notice of Discontinuance was incompetent or inoperative
MZZHZ’s submissions
MZZHZ submits that the Notice of Discontinuance was inoperative or ineffective because:
(a)at the time the Notice of Discontinuance was filed, the First Judicial Review Application had purportedly been dismissed by the Registrar’s Dismissal Order. Accordingly, there was at that time ostensibly no proceeding to dismiss. The Notice of Discontinuance in those circumstances was of no effect;
(b)while it later transpired that the Registrar lacked the power to dismiss the First Judicial Review Application, that was not apparent at the time the Notice of Discontinuance was filed, as judgment in BJC16 would not come for another four years;
(c)section 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides:
A judgment or decision of the Federal Circuit and Family Court of Australia (Division 2) is valid and binding until set aside, even if it is given or made in excess of the Court’s jurisdiction.
(d)the Registrar’s Dismissal Order purported to be a decision of the Court. While it was ultimately a decision made in excess of the Registrar’s jurisdiction: BJC16, s 138 of the FCFCOA Act reflects a legislative intention that such decisions should be treated as effective until set aside. In the present case, the Registrar’s Dismissal Order was set aside by the Court’s March 2023 First Judicial Review Application Order on 7 June 2023;
(e)it follows that, at the time it was filed, the Notice of Discontinuance was not capable of terminating the First Judicial Review Application and did not have that effect;
(f)there is no evidence that the Notice of Discontinuance was served on either respondent – the Minister and the Tribunal - as required by r 13.01(4) of the FCC Rules. Indeed that is inherently unlikely, given that MZZHZ was functionally illiterate in English and his native language (Dari);
(g)on the face of r 13.01(4) of the FCC Rules, the requirement to serve the Notice of Discontinuance on the respondents was a mandatory requirement before the proceeding could be terminated; and
(h)consistently with the interpretation principles enunciated in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 (“Project Blue Sky”) at [93] per McHugh, Gummow, Kirby and Hayne JJ, when one has regard to the object of r 13.01(4) of the FCC Rules, it is plainly intended that all parties have notice of the purported end to the proceeding, given that a discontinuance substantively affects the rights and interests of all parties. A Notice of Discontinuance that was never served therefore cannot be effective in terminating a proceeding.
Minister’s submissions
The Minister’s submissions in relation to whether the Notice of Discontinuance was inoperative or ineffective are as follows:
(a)the Notice of Discontinuance was clear on its face. It was signed by MZZHZ and accepted by the Registry. MZZHZ has never said that he did not intend to file a Notice of Discontinuance, and as explained further below, there is nothing to suggest it was anything other than a deliberate and informed act;
(b)the Notice of Discontinuance was effective on the day it was served. It had the effect of signalling MZZHZ’s intention not to proceed with the First Judicial Review Application at all, and notwithstanding the Registrar’s Dismissal Order it was still possible for MZZHZ to file applications in the proceeding. He might have filed an application to set aside the Registrar’s Dismissal Order. Instead, the Notice of Discontinuance was a clear indication that MZZHZ himself sought to discontinue the First Judicial Review Application;
(c)the Registrar’s Dismissal Order dismissing the First Judicial Review Application and the judgment in BJC16 do not affect the validity of the Notice of Discontinuance: BJC16. MZZHZ’s arguments with respect to s 138 of the FCFCOA Act are, with respect, misconceived. That provision is new and there was no equivalent provision in the then Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”);
(d)at the relevant time, the Registrar’s May 2013 Dismissal Order was void ab initio: Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435; (1999) 73 ALJR 687; (1999) 162 ALR 336 (“Pelechowski”) at [27] per Gaudron, Gummow and Callinan JJ. And see generally, Hon Justice K Walker, When Can A Court’s Decision Be Ignored?, (2023) 46 MULR 571 at 581:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it.
(e)because the order was void ab initio (and not valid until set aside, which is the case with superior courts of record) the Notice of Discontinuance was effective the date it was filed;
(f)alternatively, the Notice of Discontinuance had effect as at the date of the judgment in BJC16. MZZHZ did not seek to withdraw the Notice of Discontinuance until over 10 years later. As at the date of the judgment in BJC16, there was still in existence a document evincing MZZHZ’s intention to discontinue the First Judicial Review Application. It had the effect of discontinuing the First Judicial Review Application after delivery of the judgment in BJC16;
(g)nor was the Notice of Discontinuance invalid by reason of any failure to serve the Notice of Discontinuance on the Minister. Although it is cast in mandatory terms, service of the Notice of Discontinuance is not required to occur as a precondition for the Notice of Discontinuance being accepted by the Registry. Instead the provision contemplates that service occurs after the filing of the Notice of Discontinuance;
(h)the FCC Rules do not display an intention to invalidate a Notice of Discontinuance by reason of a failure to serve that notice. The consequences of such a construction would be to work considerable uncertainty into the legislative regime. Suppose an applicant in a migration review files a Notice of Discontinuance and holds off service for a lengthy period - the proceeding might end up in a form of purgatory: not quite finished, but not fully alive;
(i)further still, it is clear that the application of the principles in Project Blue Sky can take account of the specific consequences of the departure from the statutory requirement in a particular case - that is, whether the departure led to any particular injustice: Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 at [107(4)] per Jagot J. Here, the Minister does not claim to suffer any particular detriment or injustice from not being served with the Notice of Discontinuance as soon as practicable; and
(j)more importantly, the structure of requiring a Notice of Discontinuance to be served after filing the Notice of Discontinuance demonstrates that service is not an “essential preliminary”. That strongly indicates that it was not a purpose of the FCC Rules that a breach of r 13.01(4) was intended to invalidate any act done in breach of r 13.01(1): Project Blue Sky Inc at [94] per McHugh, Gummow, Kirby and Hayne JJ; BQB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 535 (“BQB21”) at [15]-[20] per Judge Lucev.
Consideration - whether the Notice of Discontinuance was incompetent or inoperative
It is not necessary to set out all of the relevant legislation operative at the time the Notice of Discontinuance was filed. Rule 13.01 of the FCC Rules is set out at [52] above. Having regard to the fact that the key to the operation or effectiveness of the Notice of Discontinuance is in large part dependent upon the status of the Registrar’s Dismissal Order it suffices to observe that the relevant legislation was otherwise set out by the Full Court of the Federal Court in BJC16 at [11]-[19] per Kenny, Griffiths and Mortimer JJ, and to observe that as a consequence of BJC16 there can be no doubt that the Registrar’s Dismissal Order was not within the power of the Registrar to make, and was a decision made without jurisdiction: BJC16 at [42] and [64] per Kenny, Griffiths and Mortimer JJ.
The question arises as to whether the Registrar’s Dismissal Order ever had any effect, and if so from what, and to what, date it might have had any such effect.
It is pertinent to note that this Court is a continuation of the former Federal Circuit Court: FCFCOA Act, s 8(2). On the face of the FCFCOA Act this Court is an inferior court of record, although it is not expressly described as such. Section 10(1)(a) of the FCFCOA Act describes this Court (the Federal Circuit and Family Court of Australia (Division 2)) as a “court of record”, but that is to be juxtaposed against s 9(1)(a) of the FCFCOA Act which describes the Federal Circuit and Family Court of Australia (Division 1) as a “superior court of record”.
There is, however, no doubt that this Court (and the Federal Circuit Court before it) is an inferior court of record: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475; (2020) 382 ALR 246 (“DHX17”) at [28] per Collier, Ranghiah and Derrington JJ; BTI15 v Minister for Immigration and Border Protection [2020] FCA 681 at [36] per Wigney J; CNC15 v Federal Circuit Court of Australia [2017] FCA1540 at [2] per Charlesworth J. An inferior court exceeds its authority and falls into jurisdictional error if it misconstrues the statute under consideration and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case, albeit that it is recognised that in such instances the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern: Craig v State of South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; (1995) 82 A Crim R 359 (“Craig”), CLR at 177-178 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. More recently, in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; (2010) 84 ALJR 154; (2010) 262 ALR 569; (2010) 113 ALD 1; (2010) 190 IR 437 (“Kirk”) at [72] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ the plurality in the High Court, summarising the judgment in Craig, observed that misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case, was a jurisdictional error. In Kirk the misconstruction of the statute resulting in the Industrial Court of New South Wales misapprehending the limits of its functions and powers and making orders where it had no power to do so was identified as a jurisdictional error of the kind referred to in Craig, CLR at 177-178 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
As an order of an inferior court of record the Registrar’s Dismissal Order, affected as it is by jurisdictional error would ordinarily, without more, be void from the time it was purported to have been made (that is, void ab initio).
MZZHZ initially submitted, but ultimately did not press an argument, that the Registrar’s Dismissal Order was not void and remained valid and binding until set aside by reason of s 138 of the FCFCOA Act, and remained valid and binding until set aside (which it was by the March 2023 First Judicial Review Application).
At the time the Registrar’s Dismissal Order was made, s 138 of the FCFCOA Act was not in effect. It came into effect on 1 September 2021. There was no directly equivalent provision in the FCCA Act. There was s 57 of the FCCA Act, which now has its equivalent in s 189 of the FCFCOA Act, but those provisions deal with formal defects and irregularities. The Registrar’s Dismissal Order is not a formal defect or irregularity but rather an act in excess of jurisdiction.
It follows therefore that the Registrar’s Dismissal Order was void from the beginning (a position accepted as correct by MZZHZ at hearing: Transcript, 29 June 2023, p 5). It follows from that that the First Judicial Review Application remained on foot on and after 1 May 2013 because it was not dismissed because the Registrar’s Dismissal Order was void. Further, because the Registrar’s Dismissal Order was the order of an inferior court of record, it was an order that could be ignored because it was of no effect: Pelechowski at [26]-[29] and [54]-[55] per Gaudron, Gummow and Callinan JJ; New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118; (2013) 230 A Crim R 16; (2013) 87 ALJR 737; (2013) 298 ALR 144 at [56] per Gageler J. In Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33; (2021) 95 ALJR 128; (2021) 386 ALR 212; (2021) 246 LGERA 293 (“Oakey Coal”) at [48] per Kiefel CJ, Bell, Gageler and Keane JJ the plurality in the High Court said as follows (footnotes omitted, emphasis added):
The circumstance that the Land Court has been established as an inferior court, as distinct from a superior court, means that failure to comply with a condition of its jurisdiction to perform a judicial function renders any judicial order it might make in the purported performance of that judicial function lacking in legal force. That is so whether or not the judicial order is set aside.
In DHX17 at [31] per Collier, Rangiah and Derrington JJ the Full Court of the Federal Court observed that an inferior court which misconstrues the relevant statutory power it was intending to exercise and thereby misconceives the nature of the function it was performing or the extent of its powers, must necessarily have acted beyond its authority.
It follows that the March 2023 First Judicial Review Application Order setting aside the Registrar’s Dismissal Order was unnecessary and of no effect because the Registrar’s May 2013 Dismissal Order was void from the beginning, and because it could therefore have been ignored as the void act of an inferior court: Oakey Coal at [48] per Kiefel CJ, Bell, Gageler and Keane JJ.
In all the circumstances the First Judicial Review Application remained on foot at the time the Notice of Discontinuance was filed.
As to MZZHZ’s argument that the Notice of Discontinuance was inoperative or ineffective because of the Registrar’s Dismissal Order, and that the Melbourne Registry of the Court ought not to have accepted the Notice of Discontinuance for filing, that argument cannot succeed. The Registrar’s Dismissal Order was void from the beginning. The legal position at the time the Notice of Discontinuance was sought to be filed was therefore that the First Judicial Review Application remained on foot, and, albeit perhaps unwittingly, there was therefore no basis for the Melbourne Registry of the Court not to accept the Notice of Discontinuance for filing, and it would therefore have been an error not to accept the Notice of Discontinuance for filing.
MZZHZ also argued that the Notice of Discontinuance was inoperative or ineffective because it was not served in accordance with r 13.01(4) of the FCC Rules.
There is no doubt that the use of “must” in r 13.01(4) of the FCC Rules means that there is a mandatory requirement to serve a copy of the Notice of Discontinuance on the other party or parties to the proceedings “as soon as practicable”: Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J; Kosovich v Mancini (1982) 31 SASR 272 at 275 per Millhouse J; Broad Spectrum Training Pty Ltd v Bidding Buz Ltd [2010] FMCA 932; (2010) 244 FLR 335 at [40] per Lucev FM. Although it might be mandatory to serve the Notice of Discontinuance, does it mean that if, as here, the Notice of Discontinuance is not served that the relevant proceeding (here the First Judicial Review Application which remained on foot after the making of the void Registrar’s Dismissal Order) is not discontinued?
Rule 13.01(1) of the FCC Rules is permissive in that it permits a party to “discontinue … by filing a notice of discontinuance”. Where there are limits on the filing of a Notice of Discontinuance these are prescribed: r 13.01(2) makes two such prescriptions, the first with respect to a time limitation prior to final hearing of an application, and the second, prescribing a leave requirement for filing at a time outside of that time limitation. Nowhere is filing of a Notice of Discontinuance expressly made subject to service of the Notice of Discontinuance either prior to or after filing of the Notice of Discontinuance.
A Notice of Discontinuance must, however, be served: FCC Rules, r 13.01(4), and no doubt this is so that any rights or interests of other affected parties can be exercised or resolved, or, more prosaically, simply to inform the other parties of the fact of the discontinuance. Discontinuance upon filing crystalises a definite date for discontinuance, and for use in relation to the exercise and resolution of any affected rights or interests.
Discontinuance contingent upon service gives rise to possible difficulties if, for example, service cannot be effected, or there is a long delay in effecting service, or there is a dispute over the date of service, of a Notice of Discontinuance.
Having regard to the text and context and structure of r 13.01 of the FCC Rules the Court is of the view that it does not lend itself to a requirement that a Notice of Discontinuance not take effect until served. If it had been intended to make discontinuance of proceedings contingent upon service of a Notice of Discontinuance it would have been easy for the FCC Rules to say so, but they do not. The structure of r 13.01 of the FCC Rules appears to be relatively straightforward: filing a Notice of Discontinuance (with leave in appropriate cases) constitutes discontinuance of proceedings, and service follows thereafter: see, albeit in relation to a notice of appeal: Woods v Bate (1986) 7 NSWLR 560 at 569 per McHugh JA (with whom Hope JA agreed at 562).

The Court notes, for the sake of completeness, that the hearing before the Registrar which resulted in the Registrar’s Dismissal Order was not a final hearing, but rather a directions hearing, and no final hearing had at that stage been listed in relation to the First Judicial Review Application, and therefore no question of leave to file the Notice of Discontinuance being required under r 13.01(2) of the FCC Rules arises.
For all of the above reasons the Court is of the view that the Notice of Discontinuance filed by MZZHZ was not required to be served on the Minister (or the Tribunal) before it could take effect, and that the Notice of Discontinuance took effect on the day it was filed, namely 9 October 2013. The First Judicial Review Application was therefore discontinued with effect from that date. This conclusion that the Notice of Discontinuance took effect on the date that it was filed, renders it unnecessary to deal with an alternative argument raised by the Minister, namely that the Notice of Discontinuance took effect from the date of judgment in BJC16.
It follows from [58]-[77] above that the Notice of Discontinuance was not incompetent or inoperative, either when filed or thereafter.
Whether the Notice of Discontinuance ought to be set aside
MZZHZ’s submissions
In relation to whether the Notice of Discontinuance ought to be set aside MZZHZ submitted as follows:
(a)the evidence before this Court is that MZZHZ had next to no understanding of the legal process. He was illiterate: MZZHZ’s November 2021 Affidavit at [2]-[4]. He could not have completed the Notice of Discontinuance that was filed in his name;
(b)MZZHZ is candid in his evidence that he does not know and does not remember how the Notice of Discontinuance came to be filed. His evidence is that a person came to the Melbourne Registry of the Court with him to help him file the First Judicial Review Application in March 2013, but he does not remember who that was. He was unaware that he was supposed to attend Court on 1 May 2013 and did not make a deliberate decision not to attend. Rather, he wanted to pursue his case because he was afraid of returning to Afghanistan: MZZHZ’s December 2017 Affidavit at [4]-[8];
(c)the most likely inference from the evidence is that after it was brought to MZZHZ’s attention that his case had been dismissed, he attended at the Melbourne Registry of the Court to enquire what he should do and that a well-meaning person, whether from the Melbourne Registry of the Court or some other person, completed a Notice of Discontinuance in his name for him to sign, rather than an application to reinstate his proceeding. Such a misunderstanding is understandable when MZZHZ cannot read English or Dari and can understand only a few words of English;
(d)the alternative inference – that the Notice of Discontinuance was a deliberate and calculated forensic decision by MZZHZ – has no rational basis. Indeed, if there was some benefit to MZZHZ for the proceeding to be terminated, he had already received that benefit from the Registrar’s Dismissal Order on 1 May 2013. There could be no rational reason for him to take the trouble to attend the Melbourne Registry of the Court five months later to discontinue a proceeding that had already been dismissed; and
(e)it is plainly in the interests of the administration of justice to correct what was obviously an administrative error in the Melbourne Registry of the Court accepting a Notice of Discontinuance in the circumstances of this case. MZZHZ should be permitted to pursue the proceeding that he commenced within time and continues to prosecute. This Court should set aside the Notice of Discontinuance.
Minister’s submissions
The Minister’s submissions in relation to whether the Notice of Discontinuance ought to be set aside are as follows:
(a)the relevant authorities were summarised in BQB21 at [15]-[20] per Judge Lucev. The Court has an implied power to reinstate a discontinued proceeding. But it is not at large: BQB21 at [19] per Judge Lucev;
(b)in the present case, there is nothing to suggest that MZZHZ did not file the Notice of Discontinuance knowingly and voluntarily. Further, there is no allegation that the filing of the Notice of Discontinuance was procured by fraud or duress;
(c)MZZHZ correctly submits that his evidence in this case is candid. He does not know and cannot recall how the Notice of Discontinuance came to be filed. But that does not mean - and the Court should not conclude - that he could not have completed the Notice of Discontinuance. It bears his signature, and MZZHZ has never disavowed his signature on the Notice of Discontinuance form;
(d)the difficulty with MZZHZ’s submissions is that there is nothing to indicate MZZHZ was aware that the First Judicial Review Application had been dismissed for nonappearance. MZZHZ is apparently illiterate. In that context, it does not make sense for MZZHZ to have sought assistance about what to do from the Melbourne Registry of the Court, and particularly to do so many months after the dismissal of the First Judicial Review Application. It is pure speculation that a person from the Melbourne Registry of the Court assisted MZZHZ to discontinue a proceeding. That is especially so in circumstances where the First Judicial Review Application had already been dismissed, and MZZHZ apparently spoke very little English and could not read. For a member of the staff of the Melbourne Registry of the Court to take such an action would have been reckless in the extreme, and it is not the appropriate inference to draw;
(e)rather, withdrawing MZZHZ’s First Judicial Review Application is consistent with MZZHZ’s actions in later making the Ministerial Intervention Request (and reiterating that MZZHZ makes no mention of any extant judicial review proceeding as part of the Ministerial Intervention Request); and
(f)the Minister submits that the implied power to set aside the Notice of Discontinuance is not enlivened in the present case.
Consideration - Whether the Notice of Discontinuance ought to be set aside
Rule 13.01(1) and (2) of the FCC Rules (set out at [52] above) provided that an applicant may discontinue an application by filing a Notice of Discontinuance at least 14 days before the day fixed for the final hearing of the application or at a later time with the leave of the Court or a Registrar.
In Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 (“Chen”) at [40], [41] and [46] per Barker, Davies and Markovic JJ, the Full Court of the Federal Court Australia observed in respect to s 23 of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) that:
[40]The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
[41]We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.
…
[46]While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
Chen was subsequently applied in respect to s 15 of the then FCCA Act, which is in similar terms to s 23 of the FCA Act, it being held that this Court (then styled the Federal Circuit Court of Australia) has an implied power, similar to that arising in respect of s 23 of the FCA Act, as to reinstatement of a discontinued proceeding: DZY17 v Minister for Home Affairs [2018] FCAFC 196 (“DZY17”) at [46] per Besanko, Griffiths and White JJ; see too EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3271 (“EHR18”) at [17] per Judge Driver.
Section 44 of the FCFCOA Act, like s 15 of the FCCA Act, is in similar terms to s 23 of the FCA Act. It follows that, for the reasons given in Chen, this Court under s 44 of the FCFCOA Act has, and previously under s 15 of the FCCA Act had, the same implied power as to reinstatement of a discontinued proceeding as was held to exist in DZY17 and EHR18.
In DZY17, shortly after filing a judicial review application in the Perth Registry of the then Federal Circuit Court, DZY17 filed a Notice of Discontinuance. DZY17 subsequently filed substantially the same judicial review application as had been filed in the Perth Registry of the Court in the Melbourne Registry of the Court. DZY17’s evidence was that she had filed the Notice of Discontinuance because she was unable to move to Perth: DZY17 at [7] per Besanko, Griffiths and White JJ. The Full Court of the Federal Court rejected DZY17’s submission that Chen was distinguishable from her case as she had not appreciated the legal consequences of filing a Notice of Discontinuance at the time, and therefore her filing of a Notice of Discontinuance was not a “deliberate and informed act”, as the primary judge had found. The Full Court of the Federal Court stated in DZY17 at [46] per Besanko, Griffiths and White JJ that:
We reject the applicant’s contention that Chen is distinguishable. There is no scope for the applicant to argue that her filing of the notice of discontinuance was an abuse of process having regard to the meaning of that phrase in cases such as Moussa, which stand for the proposition that no abuse of process is involved where a party knowingly and voluntarily files a notice of discontinuance, as was the case here…
The implied power is not at large. In Chen, the Full Court of the Federal Court noted at [47] per Barker, Davies and Markovic JJ that:
… we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
In Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 (“Moussa”) the Federal Court, having set out r 13.01 of the FCC Rules, observed as follows at [9]-[13] per Perram J:
9It is established that a notice of discontinuance can be struck out if its filing constituted an abuse of process: Castanho v Brown & Root (UK) Ltd [1981] AC 557 at 571 per Lord Scarman (with whom the other Law Lords agreed):
“The Court has an inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to retain: and termination of process can, like any other step in the process, be so used. I agree, therefore, with Parker J and Lord Denning MR that service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of process of the court.”
10The application of that principle to a notice of discontinuance filed in this Court was accepted by Beaumont J in an obiter dictum in Wool International v Sedgwick Ltd (No 2) [1997] FCA 709. In Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1050 Mansfield J accepted the existence of the jurisdiction although his Honour described it as part of the inherent power of the Court to prevent injustice (at [5]). In that case it appeared that the notice of discontinuance had been filed without instructions. The Minister accepted that that was a sufficient fact to justify the exercise of the jurisdiction. Thus Mansfield J thought that it was “not necessary to explore in any detail the content of the concept of abuse of process”: (at [5]).
11In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 Ryan J examined these authorities. He accepted at [18] that there was a jurisdiction to set aside a notice of discontinuance which involved an abuse of process at the suit of the party affected by the abuse. He thought this jurisdiction rare. His Honour also accepted (at [20]) that there was likely an inherent power to set aside a notice of discontinuance which has been procured by fraud or duress.
12Ryan J was clear, however, in SZFOZ that the power could not be invoked where a party had knowingly and voluntarily filed the notice of discontinuance: see [20]. Precisely the same conclusion was reached by Ross J in Khadri v Minister for Immigration and Border Protection (2014) 140 ALD 136 at 140 [16]. There is yet to be a debate as to how principles relating to inherent jurisdiction can be applied to a court, such as the Federal Circuit Court, which is not a superior court and which may not have inherent jurisdiction. It is not necessary to pursue this point further.
13 Four principles may be distilled from the authorities referred to above:
1.A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.
2.It may also be set aside where its filing was procured by fraud or duress.
3.There is a jurisdiction to set such a notice aside to avoid substantial injustice.
4.None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.
The Federal Court has also found that the power to set aside a Notice of Discontinuance is not a general power to reinstate an application in the interests of justice in BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 (“BZAGD”) at [16] per Rangiah J; see also Chen at [47] per Barker, Davies and Markovic JJ.
MZZHZ relied upon his illiteracy as a basis for setting aside the Notice of Discontinuance. In essence, it was argued that because of MZZHZ’s illiteracy he could not have known what it was that he was doing when he filed the Notice of Discontinuance. Further, it was said by MZZHZ that he had no memory of filing the Notice of Discontinuance, or why he did so.
The argument concerning MZZHZ’s illiteracy must, however, be viewed in the context of his actions in relation to the proceedings as a whole – that is, in relation to the First Judicial Review Application, and the associated Set Aside Application, and the Extension of Time Application and the associated Proposed Second Judicial Review Application, as well as his actions in relation to the Ministerial Intervention Request – and MZZHZ’s evidence (which is unchallenged) in MZZHZ’s November 2017 and December 2021 Affidavits.
Illiteracy is plainly disadvantageous to MZZHZ in the context of his engaging with the Australian legal process through the mechanism of a judicial review application in proceedings under the Migration Act in a federal court where the action is premised upon there being a jurisdictional error by an administrative decision-maker, and even more so in the circumstances where, for at least part of this process, and relevantly at the time he filed the Notice of Discontinuance, he was seemingly not legally represented or advised: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J; BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J.
Plainly, generalities do not suffice. Simply, however, because an applicant is illiterate and does not fully understand the relevant legal process does not mean that they cannot institute, maintain, or discontinue, proceedings or that an applicant does not understand the nature of the proceedings in which they are engaged, or the outcome that they seek.
The submission that MZZHZ had “next to no understanding of the legal process” is not supported by MZZHZ’s December 2017 and November 2021 Affidavits. At no point in those affidavits does MZZHZ give any evidence of his “understanding of the legal process, or lack thereof”. The Court accepts that MZZHZ is illiterate, and can neither read nor write in Dari nor English, and that he may not understand the specifics of the legal process in which he is engaged, or the legal concepts concerned (in particular jurisdictional error), but that does not mean that he does not understand the nature of the proceedings or the outcome that he seeks from the proceedings. Illiteracy is not necessarily to be equated with an incapacity to understand or to give instructions. In this respect it is significant that:
(a)MZZHZ had legal assistance at the outset of the Protection Visa process, and at the very least until the time of the Tribunal Decision: MZZHZ’s December 2017 Affidavit at [1]-[4];
(b)the First Judicial Review Application was filed by MZZHZ in the then Federal Magistrates Court, and “someone came with me to help, but I do not remember who this was”: MZZHZ’s December 2017 Affidavit at [6];
(c)the First Judicial Review Application was obviously physically prepared by someone other than MZZHZ (save for his signature and the unnecessary Extension of Time Application and grounds in support thereof which are hand-written), it being typed, and including the grounds of application, which are as follows:
1. The Refugee Review Tribunal did not afford me procedural fairness:
2. The Refugee Review Tribunal applied the wrong legal test.
which given MZZHZ’s illiteracy in English could not have been drafted by him;
(d)the First Judicial Review Application bears MZZHZ’s signature and the “Yes” box for an extension of time application has been ticked in blue pen even though a typed “X” appears in the “No” box and there are hand-written grounds for the unnecessary Extension of Time Application, which are as follows:
Could you please. I got legal aid letter they are told me on 15 on March your Federal Magistrates Court inter you:
(e)whilst MZZHZ “believe[s]” that the signature of the applicant on the First Judicial Review Application is his, he does not recognise the writing comprising the grounds for an extension of time on page 2 of the First Judicial Review Application: MZZHZ’s December 2017 Affidavit at [7]. From:
(i)the fact that MZZHZ does not recognise the hand writing comprising the grounds of the Extension of Time Application;
(ii)the mode of expression of the grounds of the Extension of Time Application; and
(iii)MZZHZ’s evidence that he had been assisted by one of his friends or “many contacts … along the way”: MZZHZ’s December 2017 Affidavit at [9],
it can be inferred that MZZHZ had some further assistance from a person with a minimal level of understanding of, and capacity to write, English, in the preparation of that part of the First Judicial Review Application which constituted the unnecessary application for an extension of time;
(f)the Ministerial Intervention Request, which is typed and in well-expressed English, must have been prepared by someone other than MZZHZ, that is by someone assisting him in relation to the overall Protection Visa process; and
(g)MZZHZ obtained legal assistance from mid-2017 onwards.

In ADH17 at [48]-[49] per O’Bryan J the Federal Court concluded as follows:
48In an effort to bring his case within the principles stated by Charlesworth J in BCX16, the appellant contended that the Tribunal had found that the risk of harm from Boko Haram was elevated in the capital of Chad, N'Djamena. I reject that contention. The appellant made no submission to the Tribunal that Boko Haram presented an elevated risk in the capital; such a claim did not clearly arise from the submissions and materials before the Tribunal; and the Tribunal made no such finding. While the Tribunal recorded that country information indicated that Boko Haram had stepped up attacks in the capital, in my view that statement is not a finding that the risk of harm from Boko Haram's activities was greater in the capital than in other parts of Chad. The Tribunal accepted the appellant's submission that his sister had been a victim of a Boko Haram attack, but the Tribunal did not refer to the fact that the attack had occurred in the capital and it is apparent that the Tribunal placed no significance on the location of that particular attack. The fact that that particular attack occurred in the capital provides no basis for a conclusion that the risk of harm from future attacks by Boko Haram is greater in the capital. Having regard to the evidence before me on this appeal, which consisted of the appellant's statutory declaration and submission referred to above, in my view there was no proper basis for the Tribunal to conclude that the risk of harm from Boko Haram was greater in the capital than in the country of Chad generally and the Tribunal made no such finding.
49In those circumstances, it was unnecessary for the Tribunal to consider and make findings about the area or areas of Chad in which the appellant would likely reside if he returned. The appellant had made no submissions to the Tribunal about his likely place of residence if he returned. The evidence before the Tribunal was that the appellant had grown up in the north of the country and had moved to the capital when he was 19 years old in 1998. The appellant's submission that there was at least a possibility that he would return to reside in the capital can be accepted. However, it was not relevant for the Tribunal to make a direct finding about the appellant's likely place of residence if returned to Chad in circumstances where the appellant had submitted to the Tribunal that he faced a risk of harm from government agencies throughout Chad and the appellant submitted, and the Tribunal found, that attacks by Boko Haram had increased in Chad generally.
In ADH17 the Federal Court:
(a)at [44] per O’Bryan J, observed that the failure to make a finding on a substantial, clearly articulated argument relying upon established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction, citing Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24] per Gummow and Callinan JJ (with whom Hayne J agreed at [95]); and
(b)at [45] per O’Bryan J, noted that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)) at [61] per Black CJ, French and Selway JJ.
To put it a little differently, the Tribunal’s function was to respond to the case that MZZHZ, who was represented before the Tribunal, advanced: Dranichnikov at [78] per Kirby J; SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J.
MZZHZ placed some stress on the judgment in DQU16, and the fundamentally different nature of the statutory questions under paras (a) and (aa) of s 36(2) of the Migration Act, and asserts that the Tribunal did not engage in a factual assessment of the risk of harm that MZZHZ would face between arriving in Kabul and reaching Khoshi, but rather found that the risk of harm to be faced by MZZHZ was one faced by the population generally, and suggesting that referring back to factual findings in relation to the refugee criterion under s 36(2)(a) of the Migration Act “on its own will not be sufficient” to fulfill the statutory task when determining the complementary protection issues under s 36(2)(aa) of the Migration Act. The Court notes in DQU16 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ the High Court said that (footnotes omitted):
Although the statutory questions posed by s 36(2)(a) and s 36(2)(aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The question under s 36(2)(aa) then is whether, in light of those and any other relevant findings, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm of the kind prescribed in s 36(2A), subject to s 36(2B) and (2C). And, as will be seen, that is what the Authority did in this case.
Reliance can therefore be placed on prior refugee criterion factual findings alone if there are no “other relevant findings” and the statutory test in s 36(2)(aa) of the Migration Act is addressed. And regard must be had to the actual claims made or emerging clearly from the materials: ADH17 at [45] per O’Bryan J; NABE (No 2)) at [61] per Black CJ, French and Selway JJ.
MZZHZ’s made claims as follows:
(a)in written “Submissions in Support of an Application for Protection” prepared by lawyers then assisting him: that he could not be protected “by a weak government against a powerful Taliban”: CB 110;
(b)as summarised in the Delegate’s Decision at CB 150-151:
•He is unable to return to Afghanistan because he is a Tajik Shia;
•He claims that Tajik ethnic people from his own lands will report him to the Taliban. He claims that this relates to his grandfather’s decision to convert to Shia many years previously. He believes that he is a target because other Tajik’s disapprove of his grandfather’s choices;
•He is fearful of the Taliban because he believes that they will harm and mistreat him;
•He claims he will be recognised by others through his documentation because he is Shia and subsequently a likely target; and
•He claims the authorities in Afghanistan would not be able to provide him with protection as they cannot “protect themselves”.
(c)in a 41 page written submission to the Tribunal prepared by lawyers then assisting him:
(i)that the Taliban would target him because of his Shia Muslim faith: CB 239;
(ii)that he would “face harm in Afghanistan” on the basis of membership of social groups, namely, as a failed asylum seeker from the West, and as an Afghan citizen who had spent the majority of his life outside Afghanistan: CB 240;
(iii)that factors such as his accent, and because he had not lived “in Afghanistan” a lack of family ties and familiarity with the culture, would lead him to be easily identifiable “upon return to Afghanistan”: CB 241;
(iv)the Taliban were “widespread throughout Afghanistan … [and] the authorities will not be able to protect him”, and that the Afghan government was unable to protect itself from the Taliban: CB 243;
(v)the “mere fact that he came to Australia to seek protection … will lead to … [his] persecution in Afghanistan”: CB 247;
(vi)that the “circumstances” in Afghanistan “continued to deteriorate”: CB 253;
(vii)“[w]ith the impending departure of the foreign troops from Afghanistan, the worst is yet to come for the Afghan civilians with the Taliban anticipating that it will retake control over Afghanistan”: CB 271; and
(viii)specifically in relation to complementary protection issues under s 36(2)(aa) of the Migration Act:
(A)“that there is a myriad of country information indicated (sic) the imminent danger to Shia Muslims residing in Afghanistan”: CB 276;
(B)“it is likely that … [MZZHZ] would be identified and tortured by the Taliban”: CB 277;
(C)[a]s a Shia Muslim living in the Sunni Muslim country … [MZZHZ] would be facing extremely humiliating treatment”: CB 277; and
(D)“[r]elocation is not an option for … he cannot obtain protection from the authorities of his country”: CB 278.
At the Tribunal Hearing MZZHZ also gave evidence that the risk of harm was “in Afghanistan entirely” and “in the whole country”: CB 349 at [67] and 350 at [69] respectively. The Tribunal made a factual finding that (italics in original):
No argument was advanced a the hearing by the applicant or his representative (other than those the Tribunal has considered) to the effect that the generalised violence described in the country information submitted by the applicant may be faced by him personally as opposed to the population of Afghanistan generally either in Khoshi, in Kabul or en route between these place[s] and the Tribunal finds that it would not.
The reason that the Tribunal found that the risk of harm to be faced by MZZHZ was one faced by the population generally was because that was what was claimed by MZZHZ: the risks of violence claimed were “in”, “throughout”, “in the whole” of, and “entirely” throughout, Afghanistan. They were always MZZHZ’s claims. MZZHZ made no express claim that he faced an elevated risk of harm when travelling from Kabul to Khoshi: CB 381 at [122], or in any other place or region of Afghanistan. And the Tribunal made no finding that MZZHZ faced an elevated risk of harm when travelling from Kabul to Khoshi, or in any other place or region of Afghanistan, and expressly found that there was no evidence that MZZHZ “personally faces any risk of harm travelling to Khoshi”: CB 381 at [122]. Thus, to the extent that it might be argued that a claim of a risk of harm when travelling by road from Kabul to Khoshi arose on the materials before the Tribunal, the Tribunal made a finding that MZZHZ faced no personal risk of harm.
In BCX16 the risk of harm concerned was one in Kabul, the capital of Afghanistan, and was a risk said to arise in a specific geographic location: BCX16 at [34] and [37]-[38] per Charlesworth J (and as explained in ADH17 at [41]-[42] per O’Bryan J). For that reason BCX16 is distinguishable from the factual circumstances in this case, and this case is more like the circumstances considered in BBK15, ADH17, and EDS v Minister for Immigration [2020] FCCA 3332 at [75]-[91] per Judge Jarrett.
In the Court’s view the Tribunal correctly understood, summarised and characterized MZZHZ’s claims, and there was no constructive failure to consider whether MZZHZ faced a real risk of significant harm as a necessary and foreseeable consequence of being returned to Afghanistan. It follows that ground 1 of the Proposed Second Judicial Review Application does not establish either a reasonably arguable case of jurisdictional error, or jurisdictional error, in the Tribunal Decision.
Ground 2
Ground 2 of the Proposed Second Judicial Review Application is as follows:
2. The Tribunal applied the incorrect test for serious harm under s 91R.
Particulars
(a)The Tribunal repeatedly referred to the relevant rest as requiring “systematic serious harm”.
(b)The Tribunal conflated separate elements of the test of the former s 91R(1), namely that the feared persecution involve serious harm to the person and that the feared persecution involve systematic and discriminatory conduct.
(c)The Tribunal thereby applied a standard for persecution that was too narrow.
MZZHZ’s Submissions
As to ground 2 MZZHZ submitted that:
(a)in the course of dismissing MZZHZ’s various claims to fear harm, the Tribunal repeatedly found that MZZHZ did not face “a real chance of systematic serious harm”: see (non-exhaustively) CB 377 at [99], 378 at [101], 380 at [115]- [116], and 381 at [119] and [122];
(b)the test applied by the Tribunal was incorrect, as it conflated two of the limbs of s 91R(1) of the Migration Act. That is, the Tribunal required that there be “systematic harm”;
(c)the correct test required that the persecution that was feared involve serious harm, and also that the feared persecution involve systematic and discriminatory conduct;
(d)contrary to the test applied by the Tribunal, the harm feared by MZZHZ need not be harm that is inflicted systematically. It is enough that there be conduct that is systematic and discriminatory, and that there be a real chance that MZZHZ may be harmed, even if the harm is sporadic or incidental rather than systematic;
(e)the difference between the two tests is not merely a semantic difference, it is a material one. To give but one example, the country information accepted by the Tribunal referred to systematic and discriminatory conduct as between Sunni and Shia Muslims, and that discriminatory conduct might reasonably be expected to cause serious harm on occasion, but the Tribunal rejected the proposition “that there is ongoing systematic violence perpetrated against Shi’a Muslims”: CB 377 at [99]; and
(f)it follows that the Tribunal applied a test that was narrower than the test required by statute and thereby committed jurisdictional error.
Minister’s Submissions
The Minister submitted as to ground 2 that:
(a)in Haji Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374; (1999) 94 FCR 259 at [25] per O’Connor, Tamberlin and Mansfield JJ, and before the introduction of s 91R(1)(c) of the Migration Act, the Full Court noted that the word “systematic” may be used in alternative senses:
One sense is that of deliberate or premeditated conduct or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal.
(b)on appeal to the High Court it was noted that “systematic conduct” does not require a person to fear organised or methodical conduct “akin to the atrocities committed by the Nazis in the Second World War”, but rather required selective harassment as opposed to unsystematic or random acts: Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1; (2000) 74 ALJR 1556; (2000) 175 ALR 585; (2000) 62 ALD 1 (“Ibrahim-HCA”) at [99] per McHugh J. See also VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 (“VSAI”) at [53] per Crennan J in which the Federal Court said that the epithet “non-random” is apposite to cover the different shades of meaning;
(c)although these authorities predate the introduction of s 91R of the Migration Act, the Full Court of the Federal Court has held that there is no indication that Parliament intended to attribute a different meaning to the phrase “systematic” than that described by McHugh J in Ibrahim-HCA: Minister for Immigration and Citizenship v SZCFW (2007) 161 FCR 441 at [31] per Gyles, Stone and Allsop JJ. In VSAI at [53] per Crennan J the Federal Court noted that “systematic” means “motivated”;
(d)this meaning of the phrase “systematic conduct” was understood by the Tribunal. Shortly after noting the requirement that persecution must involve systematic and discriminatory conduct, it noted that “persecution implies an element of motivation on the part of those who persecute for the infliction of harm” (emphasis added): CB 320 at [10]-[11];
(e)the use of the word “systematically” throughout the Tribunal Decision is also consistent with it being used in the sense of deliberate, premediated, and/or non-random conduct. Contrary to MZZHZ’s submissions, the Tribunal did not require the harm to be methodical or regular (and did not dismiss it because it was sporadic or incidental);
(f)for example, MZZHZ relies upon the Tribunal’s use of the phrase “systematic” at CB 377 at [99]. The Tribunal found, however, that the two recent attacks did not amount to “ongoing systematic violence perpetrated against Shi’a Muslims” because it did not evidence a system or method. Rather, the Tribunal considered that those two attacks were “rare exceptions” to what was otherwise a lack of reference in the country information to deliberate violence perpetrated against Shi’a Muslims; and
(g)there can be no jurisdictional error by the Tribunal referring to systematic in the sense of non-random or deliberate, and the Tribunal was not required to consider a risk of randomised violence when considering whether MZZHZ faced a real chance of serious harm. This ground must be rejected.
Consideration – ground 2
At the time of the Tribunal Decision, the refugee criterion for a protection visa (as opposed to the alternative complementary protection criterion that was the focus of ground 1) was contained in s 36(2)(a) of the Migration Act and was in the following terms:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Refugees Convention requires a person to have a well-founded fear of persecution for one of the specified reasons of race, religion, nationality, membership of a particular social group or political opinion.
The definition of “persecution” was at the time of the Tribunal Decision qualified by s 91R of the Migration Act which provided that:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
The notion of persecution involves selective harassment: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”). A fear of persecution will be “well-founded” if there is a “real chance” that an applicant will suffer the claimed persecution in the reasonably foreseeable future, and a “real chance” is a prospect that is not “remote” or “far-fetched”: Chan, CLR at 389 per Mason CJ, 398 per Dawson J, 407 per Toohey J and 429 per McHugh J; CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 (“CGA15”) at [22] per Murphy, Mortimer and O’Callaghan JJ. What matters is the actual level of risk in a particular place: CGA15 at [22] per Murphy, Mortimer and O’Callaghan JJ; CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [35] per Moshinsky J; SZVJE v Minister for Immigration [2016] FCCA 594 at [20] per Judge Driver.

In Ibrahim-HCA at [99] per McHugh J (in dissent, but not on this point) it was observed that (footnotes omitted):
It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.” The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.
The Tribunal understood the relevant legal test in relation to an applicant’s fear of persecution and the need for “serious harm” to be involved, referring to the relevant provisions of the Migration Act in its setting out of the relevant law: CB 320 at [10]-[11].
MZZHZ referred to a number of paragraphs (non-exhaustively) in the Tribunal Decision relating to what it said were the Tribunal’s repeated findings of a real chance of serious systematic harm. In each of the paragraphs referred to by MZZHZ as evidence of the Tribunal’s findings with respect to a real chance of serious harm, save for CB 377 at [99], the Tribunal found that there was either no evidence or a lack of evidence of a risk of the relevant harm, and even at CB 377 at [99] the Tribunal referred to “two recent attacks” as “rare exceptions”. The two relevant references to systematic harm not cited by MZZHZ at CB 376 at [95] and 381 at [120], are also instances where the Tribunal found that there was either no evidence of a risk of the relevant harm. In short, it appears that the Tribunal did not accept that MZZHZ would be harmed for any Convention reason that he had advanced, and this was sufficient to determine MZZHZ’s claims adversely to him: Ibrahim – HCA at [141] per Gummow J (with whom Gleeson CJ agreed at [1]).
The use of “systematic” in the Tribunal Decision as it related to the question of “serious harm” was not inconsistent with its meaning as referred to in Ibrahim – HCA at [99] per McHugh J, because, viewed in context (and reading the Tribunal Decision as whole without a zealous search for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [25] per French CJ, Bell, Keane and Gordon JJ) there were either no systematic acts found by the Tribunal or - as in the case of the two “rare exceptions”: CB 377 at [99] – they appear to have been found by the Tribunal to be unselective acts in the sense that they were unsystematic or random.
In the Court’s view the Tribunal applied the correct test for serious harm. It follows that ground 2 of the Proposed Second Judicial Review Application does not establish either a reasonably arguable case of jurisdictional error, or jurisdictional error, in the Tribunal Decision.
Conclusion on Extension of Time Application
In relation to the Extension of Time Application the Court has concluded that:
(a)the length of the delay alone weighs very significantly against the granting of the Extension of Time Application;
(b)the lack of an adequate explanation for the delay weighs significantly against the granting of the Extension of Time Application;
(c)the length of the delay, together with the lack of an adequate explanation for the delay, weigh very significantly against the granting of the Extension of Time Application;
(d)there is some, albeit minor prejudice to the Minister in relation to the costs and the finality of litigation, and some prejudice, again relatively minor, to other litigants in migration judicial review proceedings in the Court, which weigh, albeit slightly, against the grant of the Extension of Time Application;
(e)the fact that there is not a reasonably arguable case of judicial review in relation to either ground 1 or ground 2 weighs very significantly against the grant of the Extension of Time Application, and would also ordinarily require that the Extension of Time Application not to be granted: MZZIV at [6] per Mortimer J; CNM16 at [20] per Rares J,
and having regard for its conclusions at (a)-(e) above the Court has further concluded that it is not in the interests of the administration of justice that the Extension of Time Application be granted, and it must therefore be dismissed.
PROPOSED SECOND JUDICIAL REVIEW APPLICATION
If the Court’s conclusions in relation to the Set Aside Application and the Extension of Time Application are wrong, and if it is necessary for the Court to consider the Proposed Second Judicial Review Application as a Second (or amended) Judicial Review Application, the Court would dismiss the Second (or amended) Judicial Review Application for the reasons set out at in relation to grounds 1 and 2 at [157]-[170] and [174]-[182] respectively above. Given, however, the Court’s conclusions with respect to the Set Aside Application and the Extension of Time Application it is unnecessary to make orders reflecting the conclusion that the Court has reached with respect to the Proposed Second Judicial Review Application as a Second (or amended) Judicial Review Application: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305 at [82] per Judge Lucev.
CONCLUSION AND ORDERS
In relation to the various matters in issue in these proceedings and the conclusions reached in the foregoing reasons the Court will make:
(a)orders that:
(i)the Set Aside Application; and
(ii)the Extension of Time Application,
be dismissed; and
(b)a declaration that the Notice of Discontinuance had the effect of validly discontinuing the First Judicial Review Application.
The Court will hear the parties as to costs.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 26 November 2024

File number(s):	MLG 320 of 2013; MLG 2780 of 2017
Judgment of:	JUDGE LUCEV
Date of judgment:	25 November 2024
Catchwords:	MIGRATION – Where application for judicial review of decision of Refugee Review Tribunal dismissed by a Registrar for non-appearance at first Court hearing – where Notice of Discontinuance subsequently filed in respect of dismissed proceedings – where subsequent judgment of the Full Court of the Federal Court in another matter that Registrar’s had no power to dismiss application for non-appearance at first Court hearing – whether Registrar’s order void from the beginning – where Court an inferior court of record – where Registrar’s order for dismissal of application subsequently set aside by consent – whether originating application still on foot PRACTICE AND PROCEDURE – Notice of Discontinuance - application to set aside – whether Notice of Discontinuance inoperative or ineffective – effect of applicant’s illiteracy in native and English languages – date of effect of Notice of Discontinuance – whether mandatory requirement to serve Notice of Discontinuance - whether originating application still on foot – whether Notice of Discontinuance to be set aside PRACTICE AND PROCEDURE – Extension of time in which to file a judicial review application – factors – where very substantial delay of more than four years and nine months – observations on effect of very substantial delay – whether adequate explanation for delay – effect of applicant’s illiteracy in native and English languages – effect of application for Ministerial intervention – whether prejudice – whether proposed grounds of review reasonably arguable MIGRATION – Judicial review – decision of the Refugee Review Tribunal – application for an extension of time to file judicial review application –– citizen of Afghanistan of Tajik ethnicity – whether Refugee Review Tribunal constructively failed to consider whether applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed to Afghanistan – whether erroneous construction that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree – whether incorrect test applied for serious harm – use of phrase “systematic serious harm” – whether proposed grounds of review reasonably arguable – whether material jurisdictional error
Legislation:	Administrative Review Tribunal (Consequential and Transitional Provisions (No 1) Act 2024 (Cth), s 4, sch 16, Pt 2, Item 10, Pt 5, Item 25 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9, 10, 44, 138, 189 Federal Circuit Court of Australia Act 1999 (Cth) ss 15, 57 Federal Court of Australia Act 1976 (Cth) s 23 Migration Act 1958 (Cth) ss 36, 91R, 417, 474, 476, 477 Federal Circuit Court Rules 2001 (Cth) rr 13.01, 13.03C
Cases cited:	ADH17 v Minister for Immigration and Border Protection [2020] FCA 53 ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884 AMF15 v Minster for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 238 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 BBU15 v Minister for Home Affairs [2019] FCA 1324 BCX16 v Minister for Immigration [2019] FCA 465 Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187 BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 Borra v Minister for Immigration & Anor [2013] FCCA 1216 BQB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 535 BQQ15 v Minister for Home Affairs [2019] FCAFC 218 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 Broad Spectrum Training Pty Ltd v Bidding Buz Ltd [2010] FMCA 932; (2010) 244 FLR 335 BTI15 v Minister for Immigration and Border Protection [2020] FCA 681 BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 CNC15 v Federal Circuit Court of Australia [2017] FCA 1540 CNM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1358 Craig v State of South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; (1995) 82 A Crim R 359 CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305 DAJ19 v Minister for Immigration [2020] FCCA 2142 DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475; (2020) 382 ALR 246 DQU16 v Minister for Immigration [2021] HCA 10; (2021) 273 CLR 1; (2021) 95 ALJR 352; (2021) 388 ALR 363 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 DZY17 v Minister for Home Affairs [2018] FCAFC 196 EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3271 FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 59 Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; (1990) 93 ALR 479 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Gill v Minister for Immigration and Border Protection [2014] FCCA 1929 Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 Haji Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374; (1999) 94 FCR 259 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; (2010) 84 ALJR 154; (2010) 262 ALR 569; (2010) 113 ALD 1; (2010) 190 IR 437 Kosovich v Mancini (1982) 31 SASR 272 M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590; (2017) 347 ALR 62 Minister for Immigration and Citizenship v SZCFW (2007) 161 FCR 441 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1; (2000) 74 ALJR 1556; (2000) 175 ALR 585; (2000) 62 ALD 1 Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 MZAAD v Minister for Immigration and Border Protection [2015] FCA 1031 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 MZZLD v Minister for Immigration (No 2) [2017] FCA 31 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118; (2013) 230 A Crim R 16; (2013) 87 ALJR 737; (2013) 298 ALR 144 Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33; (2021) 95 ALJR 128; (2021) 386 ALR 212; (2021) 246 LGERA 293 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435; (1999) 73 ALJR 687; (1999) 162 ALR 336 Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 SZVJE v Minister for Immigration [2016] FCCA 594 Tran v Minister for Immigration and Border Protection [2014] FCA 533 TTY167 v Republic of Nauru [2018] HCA 61; (2018) 362 ALR 241 Tu’uta Katoa v Minister for Immigration [2022] HCA 28; (2022) 276 CLR 579; (2022) 96 ALJR 819; (2022) 403 ALR 604 VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 Wei v Minister for Immigration & Anor [2013] FCCA 262 Woods v Bate (1986) 7 NSWLR 560 WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 WZANW v Minister for Immigration & Anor [2009] FMCA 1075 WZAWB v Minister for Immigration and Border Protection [2016] FCCA 1345; (2016) 309 FLR 398
Division:	Division 2 General Federal Law
Number of paragraphs:	186
Date of last submission/s:	22 June 2023
Date of hearing:	23 February 2023 (MLG 2780 of 2017 only) and 22 June 2023
Place:	Perth
Counsel for the Applicant:	Dr McBeth
Solicitor for the Applicant:	Clothier Anderson
Counsel for the First Respondent:	Mr Barrington
Solicitor for the Respondents:	Clayton Utz
Second Respondent:	Submitting appearance, save as to costs

MLG 320 of 2013; MLG 2780 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MZZHZ Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE REVIEW TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	25 NOVEMBER 2024