Nguyen v Minister for Immigration and Border Protection

The High Court of Australia considered an application for an order to show cause filed by the plaintiff against the Minister for Immigration and Border Protection and the Migration Review Tribunal. The plaintiff sought to challenge a decision of the Federal Circuit Court which refused to grant an extension of time for the plaintiff to seek judicial review of a Migration Review Tribunal decision affirming the refusal of a Partner (Migrant) (Class BC) visa. The Minister submitted that the application should be dismissed.

The central legal issue before the High Court was how to deal with the plaintiff's application for an order to show cause, given the plaintiff's repeated failure to appear at the scheduled hearings and the Minister's submission that the matter be dismissed. The court was required to determine whether to dismiss the application on its merits under rule 25.03.3 of the High Court Rules 2004, or to dismiss it for want of prosecution under the Court's inherent jurisdiction.

The Minister argued for dismissal for want of prosecution, citing cases such as *Coventry v Charter Pacific Corporation* and the principles discussed in *Lenijamar* and *Aon*. These authorities supported the exercise of a broad discretion by the court to manage its process, including dismissing proceedings for a continuing failure to prosecute, particularly where there is no prospect of the matter being revived and where the court and respondent have made efforts to contact the applicant. The Minister preferred this option as it would be an interlocutory order, potentially allowing the plaintiff to recommence proceedings in the Federal Court under section 39B of the *Judiciary Act 1903* (Cth) without necessarily being precluded by abuse of process or estoppel.

The High Court ordered that the proceeding be dismissed for want of prosecution. The Court found that it had jurisdiction to do so and that it was an appropriate course in the circumstances, as it would result in an interlocutory order that would not prevent the plaintiff from commencing fresh proceedings in the Federal Court. The Minister was awarded costs of and incidental to the application.