Federal Court of Australia

Nguyen v Secretary, Department of Home Affairs [2026] FCA 883

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 3, pursuant to r 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth), the application is dismissed.

2.    Subject to order 3, the applicant pay the first respondent's costs fixed in the amount of $5000.

3.    There be leave to the applicant to apply on or before 21 July 2026 to vacate orders 1 and 2.

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

REASONS FOR JUDGMENT

COLVIN J:

1    On 1 July 2025, the Administrative Appeals Tribunal affirmed a decision by a delegate of the Minister refusing to grant Ms My Nguyen a protection visa. Subsequently, Ms Nguyen made a request for the Minister to exercise the personal power conferred by s 351 of the Migration Act 1958 (Cth) to substitute for the decision of the Tribunal a decision more favourable to Ms  Nguyen. The Minister's department assessed that the request did not comply with Part 2 of the Ministerial Instructions - requests for use of the Minister’s intervention powers under sections 351 and 501J of the Migration Act 1958. On that basis, the request was finalised without referral to the Minister.

2    In January 2026, Ms Nguyen brought an application for review of the decision to finalise the request. In a statement of claim filed with the application, Ms Nguyen claimed that the decision was unlawful. Relief was sought which, if granted, would require the Secretary of the Minister's department to refer the request to the Minister. The proceedings were commenced by Ms Nguyen as a litigant in person. On her application she specified an email address and a residential address as her address for service.

3    The affidavit in support of Ms Nguyen's application annexed a letter from her migration agent which sought to support her request for Ministerial intervention on the basis of what were described as her unique and exceptional circumstances as a victim of alleged family violence and coercive control in her marital relationship in Australia.

4    The proceedings were listed for an initial case management hearing to be held on 15 April 2026. On 12 April 2026 (a Sunday), an email was received by my associate from the email address as specified on the application. The valediction gave Ms Nguyen's full name. The email included the following:

I am unsure how I should attend the court hearing. Could you please provide the details of the hearing and explain how I should attend?

Also I will need a Vietnamese interpreter on the day of the hearing.

I sought the orders below…

[Proposed orders were set out which included a proposed order that the matter be listed for final hearing on a date that was left blank]

5    On 13 April 2026, an email was sent by my associate to the email address setting out the arrangements for the hearing and confirming that a Vietnamese interpreter had been arranged.

6    On 14 April 2026, the Court received a minute of proposed orders which appeared to be signed by Ms Nguyen and a lawyer acting for the Minister. On the same day, orders were made in terms of the minute.

7    The parties were requested to provide their unavailable dates for a hearing in July or August. The Minister provided unavailable dates. There was no response from Ms Nguyen.

8    On 22 April 2026, an email was sent to the parties in the following terms:

Please be advised that the above matter has been listed for hearing on 7 July 2026 at 10.15 am AWST.

(bold in original)

9    The proceedings came on for hearing on 7 July 2026. There was no appearance by Ms Nguyen. The matter was called three times in the precinct of the Court. There was still no appearance.

10    The Minister moved for orders dismissing the proceedings pursuant to Rule 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth). The Minister read an affidavit of the solicitor with conduct of the matter for the Minister. In addition to the matters to which reference has been made, the affidavit deposed to the following matters:

(1)    On 10 June 2026, the Minister's solicitors emailed to the email address, correspondence and a proposal to resolve the matter;

(2)    On 18 June 2026, an email was sent by the Minister's solicitors following up on the communication of 10 June 2026;

(3)    Ms Nguyen had not responded to the above email communications;

(4)    On 25 June 2026, the Minister's solicitors were copied into an email from the Court noting that Ms Nguyen had not filed submissions and that they were overdue and seeking an explanation;

(5)    The Minister's solicitors had not received any response to the above email from the Court;

(6)    On 26 June 2026, the Minister's solicitors sent an email to the email address concerning certain procedural orders that were to be sought by the Minister;

(7)    On 1 July 2026, the solicitor responsible attempted to call Ms Nguyen on the telephone number in her originating application. The call went to voice mail and a message was left asking Ms Nguyen to return the call. No return call has been received.

(8)    On 3 July 2026, the Minister's solicitors were copied into an email from the Court to Ms Nguyen confirming that the hearing remained listed on 7 July 2026 and stating that her application may be dismissed if she did not attend;

(9)    On 6 July 2026, the Minister's solicitors sent an email to the email address advising Ms Nguyen that if she did not appear the Minister would seek to have her matter dismissed with costs.

11    In the above circumstances, I was satisfied that there was evidence that communications to the email address in relation to the application had been sent and received by Ms Nguyen. I was also satisfied that Ms Nguyen had been made aware of the hearing date for the application. In those circumstances, I was persuaded that a proper basis had been established for the making of an order dismissing the proceedings pursuant to r 30.21(1).

12    The Minister sought costs fixed in the amount of $5,000. The Minister had prepared the application book and written submissions. There had been consideration given to a possible constitutional issue. Counsel had prepared for the conduct of the hearing. In the circumstances, I was satisfied that the amount sought was reasonable.

13    However, in circumstances where there were communications in April 2026 indicating that Ms Nguyen sought to participate in the hearing and had requested the assistance of an interpreter, I indicated that I would provide for Ms Nguyen to be able to apply to vacate the orders within 14 days . I also indicated that I would provide reasons for making those orders. The reasons given above are those reasons.

14    In the course of preparing these reasons, it has come to my attention that the orders made on 14 April 2026 included an order (as proposed by the parties) in the following terms :

The matter be listed for hearing on a date not before 13 July 2026.

15    In fact, as I have explained, on 22 April 2026, the hearing date was set for 7 July 2026 and that date was notified to the parties. The date of 7 July 2026 was also referred to in subsequent emails sent to the email address by the Court and in communications from the Minister's solicitors.

16    In those circumstances, I have considered whether it would be appropriate not to enter the orders dismissing the application and exercise the Court's power to vary or set aside the order before entry: see r 39.04. Had I adverted to the difference between the date in the orders (not before 13 July 2026) and the date of listing (7 July 2026) at the time that I determined that the orders sought by the Minister should be made on the basis that there be leave to vacate the orders, I would have made orders in the same terms. I would have regarded the provision for leave to apply to vacate the orders to be sufficient protection against any possible injustice. Given the fact that there had been a number of communications to the email address, being an email address used by Ms Nguyen to receive and send email communications in relation to the proceedings in April 2026, I would have considered it unlikely that there was any uncertainty as to the hearing date. The only hearing date for the application communicated to the parties was 7 July 2026. There were a number of email communications to the email address that specified that date.

17    For those reasons, I have allowed the orders to be entered.

18    For completeness, I indicate that any application for leave to vacate orders 1 and 2 may be made by email to my associate at any time on or before 21 July 2026. Any evidence relied upon to support the application should be provided by way of affidavit.

Associate:

Dated:    7 July 2026