Nguyen v Minister for Immigration and Border Protection

[2015] HCATrans 248

[2015] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M48 of 2015

B e t w e e n -

THI THE ANH NGUYEN

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 30 SEPTEMBER 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR N.M. WOOD:   I appear for the first respondent.  (instructed by Australian Government Solicitor)

HER HONOUR:   Could I have the matter called outside please.

COURT OFFICER:   No appearance, your Honour.

HER HONOUR:   Thank you.  Mr Wood.

MR WOOD:   Your Honour would have received a copy of an affidavit that I think we filed yesterday demonstrating our attempt to contact the plaintiff by telephone.

HER HONOUR:   Yes. 

MR WOOD:   I understand the Court also sent a letter after the hearing by express post last week to the plaintiff’s nominated address.  We have had no further contact or information about the plaintiff’s whereabouts or attitude to the litigation.  Your Honour, I think in the circumstances there are two principal pathways available to the Court that I would identify.  The first is to – sorry, before I go to those. 

Your Honour has a power under rule 13.03.2 to dismiss the summons. The real question I think is what to do with the underlying application and the proceeding as a whole. In that respect I think there are two options. Your Honour can dismiss the application under rule 25.03.3, that being one of the powers available to the Court on the hearing of an application for an order to show cause. The second option I would identify is to dismiss for want of prosecution.

I will come to want of prosecution in a moment.  An implication I think, your Honour, of dismissing the application on its merits, as it were, under 25.03.3 is that the plaintiff might be considered to be prevented effectively from recommencing any application in the nature of judicial review concerning the Circuit Court’s order in the Federal Court. 

That view might be adopted on the basis that if the present application in truth does seek a judicial review remedy about the Circuit Court’s extension of time ruling and if this Court was to dismiss that application, then for the very reasons our written submissions explain it might well have been abuse of process to recommence a further application in the Federal Court even though the matter could be, with appropriate amendments, remitted to that court.  So that is one hesitation that we think might be had about the dismissal under 25.03 option, but it nevertheless is available as plainly the plaintiff has not demonstrated any jurisdictional error affecting the Circuit Court’s order.

The second option of dismissal for want of prosecution is available, we submit, as an inherent power of the Court, an instance of the power of the Court to regulate its own process.  There are a number of cases in that area.  It does not seem to be a power that has been exercised frequently in this Court but there are three cases I would draw your Honour’s attention to that we would rely on if that was an option that your Honour was to give consideration to.

The first case is the case of Coventry v Charter Pacific.  I might hand that up together with the other two cases I will refer you to which is Lenijamar and Aon.  The first case, your Honour, is the case of Coventry v Charter Pacific Corporation 227 CLR 234. At paragraph 16 it was recorded – that case was an appeal and at paragraph 16 it was recorded that Coventry Trustees, being the appellant, had appealed but when the appeal was called on for hearing there was no appearance and it stated in short terms that:

The appeal of the Coventry Trustees should stand dismissed for want of prosecution. 

It is evident that that is a power available to the Court.  There is no detailed discussion of the circumstances where such an order would be appropriate but it would appear to be analogous, at least to this extent, that that was a hearing of the appeal just as this is a hearing for an application for an order to show cause and there has been no appearance by the plaintiff or the moving party.  The second case I draw your Honour’s attention to is a decision of the Full Court of the Federal Court ‑ ‑ ‑

HER HONOUR:   How is that going to help me?

MR WOOD:   The Federal Court judgment?

HER HONOUR:   Yes.

MR WOOD:   Well, I draw it to your Honour’s attention because there is a discussion there in particular in the joint judgment of Justices Gummow and Wilcox where their Honours refer to the English authority that is commonly cited in this area, particularly the judgment of the English court in Birkett v James where I think it was Lord Diplock purported to identify a number of conditions or factors guiding the exercise of the court’s power to dismiss for want of prosecution. 

What the majority judgment of Justices Wilcox and Gummow do in that case is to identify that – and I draw your Honour’s attention to pages 394 and following – that the conditions or factors identified in the English cases depended on Rules of Court in England.  What their Honours say at page 395 in the first substantive paragraph is that there is a, in the Federal Court, system of case management that is of course given particular reflection in what was then Order 10, rule 7 of the Federal Court Rules which I think now is reflected in the contemporary Federal Court Rules.  I acknowledge that that rule is not a rule of this Court, but what their Honours say in the third sentence of that paragraph on page 395 is that:

the existence of a case management system . . . is the backdrop against which the relevant rules must be considered ‑ ‑ ‑

HER HONOUR:   The problem is there are rules there, are there not, even in the Federal Court?  That is why I do not know that it is very much – very helpful, is it?

MR WOOD:   There are rules and so I am certainly not seeking to apply the jurisprudence about the particular meaning of what was then Order 10, rule 7 to this circumstance, only to note first of all the Court has the power, second of all, the old English cases as to the circumstances or conditions to the exercise of the power have been identified as being linked to the particular rules in the Court of England. 

The third case I was going to take your Honour to, although your Honour would be well aware of it, is Aon where, relevantly, the High Court referred with approval to the discussion in Lenijamar as authority for the proposition that in the Australian courts generally, including the High Court, there is a recognised system and culture of principles of case management. 

My submission to your Honour would be that the situation that we are in today is that we have now had two dates for the hearing of the application for an order to show cause. There has been no appearance on either occasion, and that therefore there is a continuing failure by the plaintiff to prosecute the application in circumstances where both the Court and the defendant have sought to make contact with the plaintiff.  That is the predicament that we are in. 

The submission I make to your Honour is that it would be consistent with the broad discretion of the Court that ought not be confined by strict rules or particular conditions that in these circumstances where there is a continuing failure and no known prospect of it being revived to dismiss for want of prosecution.

HER HONOUR:   And which order do you seek - the first or the second?

MR WOOD:   I have identified the two options.  We would prefer to dismiss for want of prosecution.  The reason for that is that that would be, I think, an interlocutory order.  It would not prevent the plaintiff if the plaintiff thought appropriate from recommencing, for instance, in the Federal Court invoking section 39B to seek judicial review of the Circuit Court’s judgment.  So it is in order to not shut the plaintiff out from agitating what may or may not be a good claim that is the reason we would prefer that path.  The other passage, your Honour ‑ ‑ ‑

HER HONOUR:   Which is the passage in Aon you wish to take me to?

MR WOOD:   I will go back to Lenijamar and then I will come to Aon.  The particular passage in Lenijamar that we think is apposite is on page 396.  Again, I acknowledge that the discussion there relates to the particular rule, but in the final full paragraph beginning “The discretion conferred by O 10, r 7 is unconfined”, about six lines down their Honours identify two situations that are obvious candidates for the exercise of that power, their Honours having previously identified the discretion as a broad one.  The say the first category is:

cases in which the history of non‑compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial –

and the second is cases –

whatever the applicant’s state of mind or resources – in which the non‑compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

We say that both of those categories, in effect, describe the circumstance that we are in in the present case.  The passage in Aon that I would take your Honour to is in paragraph 92 in the third sentence of that paragraph of the judgment of the plurality the Court says this:

It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process.

There is then a reference in footnote (183) to a number of cases including Lenijamar and the passage that I have referred your Honour to.  The discussion of course then continues and as your Honour would be aware the gist of the judgment in Aon was that there are factors broader than specific prejudice to a defendant or respondent in exercising the Court’s procedural powers including relevantly the impact on other parties and the burden on

the Court’s resources and that these reflect modern principles of case management.

The difficulty that we are in at the moment is that we can simply have no confidence that anything else will happen if an order is not made dismissing the application for want of prosecution today.  The parties and the Court would simply be waiting and perhaps hoping that the plaintiff would take a step and in circumstances where there is simply no response to correspondence, in addition to failure to attend, there can be no confidence that any such step will be taken. 

My submission would be that if the order that I proposed is made that would not preclude the plaintiff either from – or it would not preclude the plaintiff, in my submission, from commencing a fresh proceeding in the Federal Court.  There would be no time limit applicable to a proceeding under section 39B.  Ordinary preclusionary doctrines including abuse of process would, of course, exist but I do not anticipate that if the plaintiff was to simply seek judicial review of the Federal Circuit Court’s refusal to grant an order under 477(2) of the Migration Act that in the circumstances of this case that my client would contend that that was an abuse of process.  Nor, in circumstances where the matter is not being dismissed on the merit, as it were, would it I think give rise to any estoppel. 

So that is the path we identify.  There are, of course, a great number of cases discussing a want of prosecution more generally.  If your Honour is assisted, we could provide a written submission in short course identifying some of those cases.  We were somewhat reluctant to commit those resources in circumstances where we did not know if the plaintiff would attend, but my submission would be that the gist of those cases is that while the conditions or factors identified in the English case of Birkett are of some potential significance, they are not a checklist or a strict or inviolable set of conditions and that the court, including as an aspect of its inherent jurisdiction, has a broad discretion to be exercised according to the circumstances of the case as appropriate and we submit there really is no other satisfactory path available to the Court in this case but to dismiss.

HER HONOUR:   Thank you.  Have a seat please.

The plaintiff filed an application for an order to show cause in relation to a decision of the Federal Circuit Court of Australia, which I will define as the FCC, made on 23 March 2015 to refuse to grant an extension of time under section 477(2) of the Migration Act 1958 (Cth), which I will define as “the Act”, to enable the plaintiff to seek judicial review of a decision of the second defendant, which I will define as “the MRT”, made on 12 December 2013 to refuse to grant the plaintiff a Partner (Migrant) (Class BC) visa, which I will define as “partner visa”.

On 12 August 2009, the plaintiff made an application under the Act for a partner visa. “Time of decision” criterion for the grant of a partner visa was that the visa applicant meet the requirements of subclauses 100.221 subclauses (2), (2A), (3), (4) or (4A) of Schedule 2 to the Migration Regulations 1994 (Cth), which I will define as “the regulations”. Relevantly, subclauses (2) and (2A) required that the plaintiff be the spouse or de facto partner of her sponsor.

The plaintiff claimed to be in a spousal relationship with her sponsor, Mr Hung Dung Ngo, who I will define as “the sponsor”.  “Spouse” is defined in section 5F of the Act.  Regulation 1.15A, a regulation for the purposes of section 5F(3) of the Act, provided that a decision‑maker was to consider a range of circumstances when considering an application for a partner visa, including circumstances relating to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

On 2 August 2012, a delegate of the first defendant, the Minister, made a decision under section 65 of the Act to refuse to grant the plaintiff a partner visa. The plaintiff applied to the MRT for review of the delegate’s decision. The MRT considered the evidence provided by the plaintiff in support of her claims to be in a spousal relationship with her sponsor. The MRT was not satisfied that the plaintiff met the relevant requirements of clause 100.221 of Schedule 2 to the regulations.

On 12 December 2013, the MRT affirmed the delegate’s decision. The MRT’s decision record was incorrectly dated 12 November 2013. On 17 January 2014, the MRT issued a corrigendum to correct the date on the decision record to 12 December 2013. On 25 February 2014, the plaintiff made an application to the FCC for an order under section 477(2) of the Act extending the 35 day period within which she could apply to that court under section 476 of the Act for judicial review of the decision of the MRT. An extension was required whether the date of the MRT’s decision is considered to be 12 November 2013, 12 December 2013, or 17 January 2014. The grounds on which the plaintiff sought the extension of time were as follows:

1.The decision was first sent to my migration agent in December 2013 and by the time he contacted a Solicitor to find out what avenues of appeal was [sic] available, the Solicitor was on Christmas holidays and was not returning until mid January 2014 and I did not know any other Migration Solicitor who could help advise me.

2.Another decision dated 17 January 2014 was then sent out to my Migration agent and myself and this was very confusing, as I could not understand why the [MRT] would send out two decisions.

3.I was seriously considering applying to the Minister to exercise his discretion, but then chose to appeal the decision of the MRT and there was a few days delay in putting in the appeal.

4.I say that I am only a few days overdue and that there will be no prejudice suffered by the respondent and I say that my appeal has reasonable prospects of being successful.

The plaintiff’s proposed appeal ground, if an extension of time was granted, was that the decision of the MRT was made without jurisdiction or was affected by an error of jurisdiction.  The plaintiff provided the following particulars of that proposed appeal ground, and I quote:

a.The [MRT] has erred in its interpretation of r 1.15A and clause 100.221 in that there was ample evidence for the conclusion that the [plaintiff] and sponsor had a mutual commitment to a shared life as husband and wife, that the relationship was genuine and continuing and that the couple did live together. 

b.The [MRT] was wrong in its conclusion that the evidence re the business partnership was contrived.

On 23 March 2015, the FCC, constituted by Judge Riley, refused the application for an order extending time.  No reasons have been published by Judge Riley, although ex tempore reasons were provided.  On 15 April 2015, the plaintiff filed the application for an order to show cause in this Court.  The plaintiff sought:

1.An order in the nature of the writ of prohibition preventing the [Minister], his department or its employees and agents from taking any further step in reliance on the decision of the [FCC] made 23 March 2015.

2.An order in the nature of a writ of certiorari quashing the decision of the [MRT].

3.An order in the nature of the writ of mandamus that the matter be remitted to the [MRT] and that the [MRT] give further consideration according to law to all the matters to which the decision relates.

4.An extension of time for the filing of this application and the relief sought.

5.Any other relief that the Court thinks fit.

In that application the plaintiff contends that she is entitled to that relief because, and I quote:

The decision of the FCC was made without jurisdiction or is affected by an error of jurisdiction.

Subject to two matters, the particulars repeat those relied on in the FCC.  The first change is that the error in “a” is attributed to both the MRT and the FCC.  The second change is that the new ground, “c”, is added which states, and I quote:

The [FCC] was wrong in denying the [plaintiff] an extension of time.

The application to show cause was listed for hearing at 9.30 am on 22 September 2015.  The matter was called.  The plaintiff did not appear.  The hearing was adjourned to 9.30 am this morning, 30 September 2015.  A letter was sent by the Court to the plaintiff advising her that the hearing had been adjourned and that the application would be heard this morning at 9.30 am on 30 September 2015.

Yesterday, a solicitor retained by the Minister filed an affidavit in which she explained that she had contacted the Department of Immigration and Border Protection, which I will define as “the department”, and obtained the mobile phone number that the department holds for the plaintiff, as well as a mobile phone number the plaintiff had previously supplied to the department.  The solicitor attempted to call each number on 23 September 2015.  When the solicitor called each number, a recorded message was played which said that the number called was disconnected. 

The matter was called this morning, 30 September 2015. The plaintiff again did not attend. The Minister submitted that the application for an order to show cause should be dismissed with costs under rule 25.03.3 of the High Court Rules 2004, or dismissed for want of prosecution within the inherent jurisdiction of this Court; see, for example, Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234 at 241 at paragraph 16. The Minister supported the second of those alternatives.

In the circumstance of this application, I consider that the application should be dismissed for want of prosecution.  I do so for the following reasons:  first, the Court has jurisdiction to dismiss the proceeding for want of prosecution; second, in the circumstances of this matter, it is an appropriate course because, as outlined by counsel for the Minister, it would give rise to an interlocutory order which would not deprive the plaintiff of an opportunity to commence proceedings for relief under the Judiciary Act in the Federal Court.  In those circumstances, I will order that the proceeding be dismissed for want of prosecution.

Do you seek costs, Mr Wood?

MR WOOD:   Yes, your Honour, I do seek costs of and incidental to the application.

HER HONOUR:   You have that order.  Thank you for your assistance.

AT 9.56 AM THE MATTER WAS CONCLUDED