Rong & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2023] HCATrans 53

[2023] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 2021

B e t w e e n -

JINTANG RONG

First Plaintiff

YALIN RONG

Second Plaintiff

FENGYI LI

Third Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 4 MAY 2023, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   This application for a constitutional or other writ was heard in Melbourne on 29 March 2023 by a Court constituted by myself sitting as a single Justice in the Court’s original jurisdiction.  I would dismiss the application and make the following orders:

(1)Pursuant to s 486A(2) of the Migration Act1958 (Cth), the period within which the plaintiffs’ application may be made in relation to the decision made on 1 July 2021 by a delegate of the defendant be extended to 23 December 2021.

(2)Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged for the purposes of the plaintiffs’ application.

(3)The proceeding be dismissed.

(4)The plaintiffs pay the defendant’s costs.

I publish my reasons and orders and direct that they be incorporated into the transcript.

By an application for a constitutional or other writ, the plaintiffs sought judicial review of a decision made by the defendant to refuse the plaintiffs’ application for a Business Skills (Residence) (Class DF) State/Territory Sponsored Business Owner (Subclass 892) visa (“subclass 892 visa”).  The plaintiffs also sought an extension of time within which to make that application.  Because of this Court’s decisions in Gajjar v Minister for Immigration and Citizenship[1] and Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2], and because the plaintiffs were overseas at the relevant time, the parties accepted that the matter properly engaged this Court’s original jurisdiction and that remittal to Division 2 of the Federal Circuit and Family Court was not possible[3].

[1]    (unreported, High Court of Australia, 1 November 2012).

[2]    (unreported, High Court of Australia, 22 July 2022).

[3]    The plaintiffs also accepted that there could be no remittal to the Federal Court of Australia.

For convenience, these reasons will focus on the position of the first plaintiff, Mr Rong[4].  He was the lead plaintiff and the only plaintiff to give evidence in relation to the application.  He was also the owner of the business described below.

[4]Mr Rong gave evidence that his surname was in fact “Wang” not “Rong" and his first name “Tang” not “Jintang”.  However, the parties accepted that nothing turned on that distinction and, for the purposes of the proceeding, were content to proceed by referring to the first plaintiff as Mr Rong.

The application for an extension of time was not opposed by the defendant at the hearing.  Accordingly, I granted that extension.  This left for consideration only the application for judicial review, which raised two grounds.  The nub of the first ground turned upon whether the requirements of Public Interest Criteria 4020 (“PIC 4020”) had been satisfied (it being a requirement of a subclass 892 visa that the plaintiffs satisfy PIC 4020)[5].  The decision-maker concluded that Mr Rong failed to satisfy PIC 4020(1), which is in the following terms:

[5]    Migration Regulations 1994 (Cth), reg 892.224(1)(a).

“There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)the application for the visa; or

(b)a visa that the applicant held in the period of 12 months before the application was made.”

In essence, it was not in dispute that a letter written by the Mr Rong’s migration agent (“the agent”) to the “Department of Home Affairs” (“the Department”) on 11 July 2018 contained false statements about the duties performed by Mr Rong in his business.  Mr Rong claimed to have no knowledge that these false statements had been made or that this particular letter had been sent to the Department.  In these circumstances, he contended that he had not “given, or caused to be given”, information that was false or misleading for the purposes of PIC 4020(1).

The second ground was that the decision to refuse the grant of the subclass 892 visa had been vitiated by a fraud perpetrated by Mr Rong’s migration agent.

For the reasons set out below, both grounds must be rejected.

Mr Rong’s bottle shop in Patterson Lakes

Mr Rong affirmed an affidavit in which he outlined the matters relevant to his and the other plaintiffs’ visa applications.  Mr Rong is a Chinese businessman.  In late 2014, he began searching for a business to purchase in Melbourne.  He used a business broker, a Mr Lin, who has an office at Box Hill.  Mr Lin identified a “Bottlemart” franchise in Patterson Lakes, in Melbourne, which was for sale.  Mr Rong purchased this franchise with a view to operating the business and obtaining a visa for himself and his family.  Mr Rong wanted to migrate to Australia permanently.

On the recommendation of a friend he knew from China, who had migrated permanently to Melbourne, Mr Rong engaged a migration agent, whom I will refer to as “Ms H”.  At that time, Mr Rong did not know of the “specifics” of what was required to obtain a subclass 892 visa.  Ms H operated her migration agent services from an office in Box Hill.  It would appear that Ms H was also probably born in China, or at least spoke Chinese, an inference drawn from the fact that her company executed a contract with Mr Rong in his native language.  As already mentioned, it was part of Mr Rong’s case that Ms H had engaged in fraudulent conduct in preparing his visa application.  For the reasons set out below, the evidence fell well short of making out this ground.  Because of this, and given that Ms H was not called to give evidence, with the agreement of the parties I will not identify her.  Doing so does not affect the cogency of these reasons.

It was relevant to Mr Rong that Box Hill was a suburb in Melbourne which housed, and houses, a great many Chinese migrants.  In that respect, Mr Rong, rightly or wrongly, thought that Ms H’s business was associated with a firm of accountants, which he had also engaged, and which was located in the same building in Box Hill.  In any event, on 25 August 2014, Mr Rong signed a contract to utilise the migration services of a company which was owned and controlled by Ms H.  The contract is written in Mandarin but was accompanied in the materials before the Court by an English translation.  Clause 1.2.2 of the English version of the contract provided that Ms H’s company was to “[a]ssist and guide” Mr Rong “in preparing all the materials for applying for a visa” (emphasis added).  Clause 1.2.3 provided that Ms H’s company was to apply for a temporary residence visa for Mr Rong and “to maintain contact with the Department of Home Affairs” until Mr Rong had secured a visa.  Clause 2.2 referred to the preparation and submission of “[subclass] 892 relevant application forms in due course”.  Clause 4 referred to “MARA’s code of conduct rules” and imposed an obligation on the company to provide Mr Rong with a Chinese or English version of “MARA’s IRMAP”.  It was not disputed that “MARA” is a reference to the Migration Agents Registration Authority and that IRMAP is a reference to a document entitled “Information on the Regulation of the Migration Advice Profession”.

Giving information to the Department

In 2017, Mr Rong attended Ms H’s office in Box Hill and signed a series of blank forms, which he understood were needed for the purpose of lodging his visa application.  He said, and I have no reason to disbelieve him, that it was a common business practice in China to sign blank forms where a professional is engaged to supply services.  Mr Rong had confidence in Ms H and relied upon her “apparent professionalism”.

According to Mr Rong, from time to time, Ms H, or someone from her office, would ask him to supply documents relevant to his bottle shop business.  Mr Rong said the “specific reasons” for requesting such documents were not disclosed to him, but he provided them because he assumed they were relevant to his application for a subclass 892 visa.  Save for one occasion described below, Mr Rong claimed that he did not have any discussion with Ms H about the tasks he undertook as the owner of the bottle shop.  In that respect, he also claimed that he was never told when his visa application was lodged, or the fact that it had been lodged.

On 14 June 2018, the Department requested the provision of further information (“the June 2018 request”).  Mr Rong’s evidence was that at that time he did not know about this development.  Ms H responded to the Department with a letter dated 11 July 2018 (“the July 2018 letter”).  This is the document which contains the false and misleading information about Mr Rong’s “typical working day” at the bottle shop.  Mr Rong claims that he did not at the time know that this letter had been sent; he said that he found out about it for the first time in 2019.  His evidence was that he was not told about the contents of the letter at that time and that neither Ms H, nor anybody else from her office, had asked Mr Rong about what he did at his shop before the letter was sent.

In late 2018, one of the employees at the bottle shop told Mr Rong that the Department had called asking for him.  Mr Rong then contacted Ms H.  She told him not to be concerned but requested that he attend her office.  At that meeting, Ms H told Mr Rong that she thought that the Department wanted to interview him and that they should participate in “mock interview sessions”.  At one of these, Ms H read out a list of Mr Rong’s duties at the shop; Mr Rong claims that in 2019 he discovered that these were the same duties as those set out in the July 2018 letter.  Mr Rong also claims that he told Ms H that he did not recognise many of the duties and that he did not do, for example, “low-level types of tasks, such as checking the temperature of the refrigerators . . . or cleaning the floors”.  Ms H told Mr Rong that he did not spend enough time in his business, an allegation he maintains he had not heard before, and that she had already supplied the list of duties to the Department, which he needed to memorise for the purpose of his interview.  Mr Rong claims to have said to Ms H that it was not appropriate for him to memorise a false list.

Mr Rong was eventually interviewed by the Department on 22 January 2019.  On 27 February 2019, the Department sent to Mr Rong a letter in which it recorded, amongst other matters, an allegation that the information previously supplied to the Department concerning his “management role” in the business did not correspond with statements made by him in his interview.  He was told that the Department suspected that he had given, or caused to be given, false and misleading information, contrary to PIC 4020(1).  He was invited to comment on this allegation within 28 days.

In response, Mr Rong changed his migration agent, obtained his file from Ms H, and saw, so he claims for the first time, the July 2018 letter.  On 1 April 2019, his new migration agent supplied the Department with a statutory declaration signed by Mr Rong.

Mr Rong’s statutory declaration

This is the moment when Mr Rong’s case began to unravel.  In his affidavit, he said that the third paragraph of the statutory declaration contained a statement that he “had not seen” the July 2018 letter.  But that is not an accurate or complete summary of the statutory declaration.  Instead, it has Mr Rong stating the following:

“I have appointed [Ms H] as my migration agent to help me prepare and lodge my application for subclass 892 visa.  [Ms H] lodged my application to the department on 16^th Mar 2017 . . . On 14^th Jun 2018 the department sent out a request for additional submission to [Ms H] and she helped me to prepare and lodge the submission on 11th Jul 2018.” (emphasis added)

The reference above to the preparation of “the submission on 11th Jul 2018” is unquestionably a reference to the July 2018 letter as sent by Ms H.  The statutory declaration thus states that this letter was prepared, at least in part, by Mr Rong.  It is true that the statutory declaration goes on to allege that Mr Rong had no knowledge of two emails sent on 16 January 2019 and 18 February 2019 by Ms H to the Department.  These, it was said, were sent without Mr Rong’s authorisation.  Mr Rong’s statutory declaration also says that he had “never seen any statement or coverpage submitted” in response to the June 2018 request, and that the information provided by Ms H to the Department regarding his responsibilities at the bottle shop was neither true nor authorised by him.  Despite this, consistently with the plain language of the statutory declaration, I find that Mr Rong must have known about the July 2018 letter and participated in its preparation.  This is, after all, what the statutory declaration plainly states.  Whether Mr Rong had subjective knowledge of the description of his “typical working day”, expressed in the letter in English, is another matter.

The objective evidence supports the foregoing finding.  The July 2018 letter may be only 6 pages long but it was accompanied by 23 attachments comprising 162 pages of business records and supporting documentation.  Those records were a commercial lease for the bottle shop; tax invoices for rent and outgoings; bank statements from a company of which Mr Rong is the sole director and shareholder; electricity bills; internet and telephone bills paid by Mr Rong; a liquor licence renewal notice; a direct debit request for rental payments signed by Mr Rong; a leave approval for one of his employees; a PAYG summary for the year ended 30 June 2017; tax invoices for WorkCover insurance and business insurance; correspondence between Mr Rong and the landlord of his commercial premises; tax invoices from suppliers addressed to Mr Rong; reference letters from suppliers; a tax invoice from Bunnings for an item purchased by Mr Rong; a reference letter from a handyman who had worked at the shop; BAS Statements for the year ended 31 March 2018; a tax agent portal generated Income Tax Account and Integrated Client Account for Mr Rong’s company; and an Australian Federal Police clearance certificate and a Chinese penal clearance certificate, in each case with respect to Mr Rong.

The foregoing documents are not limited to the usual business records, such as tax returns and annual financial accounts.  Indeed, the documents are somewhat eclectic.  They are eclectic because the very specific categories of documents were gathered together and attached to the July 2018 letter in direct response to the June 2018 request.  That request sought evidence about, amongst other things, the following matters:

“•Some examples of activities undertaken specifically relating to planning, organising, directing and controlling the resources of the business

•Some evidence of your role in decision making showing your responsibility for such areas as strategic management, recruitment, price structure, business profitability, expenditure and overall performance of the business

•Some evidence of your overall level of commitment to the business and specifically the frequency of your involvement in your specified primary tasks

•Some evidence to how you managed the business in absentia when you travelled abroad, or away from the usual place of business

•Some business documents prepared and/or signed by you (eg contracts with suppliers, credit applications with suppliers, eftpos/merchant agreements with banks, insurance policy agreements, employment contracts etc)

•Some evidence of relevant communication (emails, letter, fax) between you and third parties (eg staff, banks, landlord, suppliers, clients etc)

•Some documents from customers or suppliers addressed to you

•Statements from third parties to corroborate your claims

•Some evidence of your involvement in the recruitment, training and supervision of staff

•Some evidence of your involvement in the marketing of your business

•A copy of your company’s bank authority which confirms you and any other relevant parties as signatories to business bank accounts

•Some evidence of repair/maintenance work managed by you.”

The last request, for example, explains why the reference letter from a handyman was attached to the July 2018 letter.  These records could only have been sourced from Mr Rong.  And given their sheer size and complexity, and their obvious responsiveness to the June 2018 request (set out above), I infer that Mr Rong knew that they were being supplied so that they could be given to the Department as annexures to the July 2018 letter.  This, presumably, is what he meant in his statutory declaration when he said Ms H had helped him to prepare and lodge that letter.

The foregoing, at least in part, is corroborated by an email sent by Ms H to the Department on 11 July 2018.  In it, Ms H sought an extension of time to respond to the Department’s request for further information.  Amongst other things, the letter expressly referred to the assistance that had been provided to Ms H by Mr Rong.  Ms H wrote:

“The client submitted a number of the required documents while I was away, and I still need time to go through these documents and finish writing the accompanying letter.”

Given the assistance Mr Rong gave Ms H, it is difficult to accept that he knew nothing about the purpose or contents of the July 2018 letter.

There is another objective consideration.  In his statutory declaration, Mr Rong said that as part of his duties he went to large retail shops, such as “Dan Murphy’s” and “BWS”, to acquire extra stock when it was on sale at prices which were less than those offered by his major supplier.  To similar effect, in the July 2018 letter, the description of Mr Rong’s “typical working day” included a “[v]ist [to] Dan Murphy’s to purchase beer once a week”.  I infer that the only way Ms H could have known that this was one of Mr Rong’s duties is because he must have told her.  Such a duty is sufficiently idiosyncratic in nature as to render it most unlikely that Ms H included it in the July 2018 letter without any input from Mr Rong.  In that respect, it is not suggested that anyone else gave Ms H instructions in relation to the visa application.  Accordingly, this fact contradicts Mr Rong’s statement in his affidavit that he had never discussed his duties with Ms H before the July 2018 letter was prepared and sent to the Department.

For the foregoing reasons, I am not satisfied that Mr Rong had nothing to do with the July 2018 letter and that he did not know about its contents or that it was sent.  Instead, I find that Mr Rong participated in its preparation, including by providing relevant supporting documentation, and gave some instructions to Ms H.  That does not necessarily mean that Ms H had actual knowledge about all of the matters referred to in the letter as being tasks or duties undertaken by Mr Rong during a “typical working day”.  I cannot be certain of that.  But for the reasons set out above, I find that he did know that one of the topics that would be covered by the July 2018 letter would be the nature and content of his management of the business.

Mr Rong was cross-examined about some of the foregoing matters by counsel for the defendant.  Mr Rong maintained his belief that he did not know about the July 2018 letter and did not have any involvement in the preparation of the list of duties referred to in that letter.  But the objective evidence, as set out above, contradicts his memory of past events.  It is possible that Mr Rong’s limited grasp of the English language may have led him to be confused about what had occurred.

Finally, I note that the plaintiffs submitted that the Court should infer that because the defendant did not call Ms H to give evidence, her evidence would not have assisted the defendant’s case.  In support of this submission, the plaintiffs invoked Jones v Dunkel[6].  Two observations should be made.  First in Kordan Pty Ltd v Federal Commissioner of Taxation[7], Hill, Dowsett and Hely JJ explained that the rule in Jones v Dunkel can only be used to render more probable an inference which otherwise arises from the evidence.  Their Honours said[8]:

[6](1959) 101 CLR 298.

[7] (2000) 46 ATR 191.

[8](2000) 46 ATR 191 at 203 [48].

“However, what is important to note is that the rule, however expressed, does not permit an inference to be drawn by reason of the failure of the other side to call a witness where that inference is not otherwise open.  Put another way, the failure to call evidence does not provide positive evidence, nor does it fill up any gap in evidence.”

The inference contended for by the plaintiffs is insufficiently precise to be governed by the rule in Jones v Dunkel.  The plaintiffs needed to identify a more specific inference arising from the evidence which could then have been rendered all the more likely by the failure to call Ms H.  This never occurred.

In any event, and secondly, I am not satisfied that Ms H was a witness within the “camp” of the defendant.  She could have been called by either side; but no party was prepared to do so.  And even if called, her evidence was unlikely to have been capable of contradicting the objective matters set out above.

“Given, or caused to be given”

This is not a case where it is alleged that Mr Rong instructed Ms H to make false statements to the Department.  This is a case in which the defendant claims that Mr Rong caused false statements to be given to the Department, even though he had no actual knowledge of the falsity of the information thereby provided.

In Singh v Minister for Immigration and Border Protection[9] the visa applicant’s brother-in-law submitted a false document to his migration agent who then supplied it to the Department.  The applicant had no knowledge that this had occurred and claimed that it was an act of sabotage.  His visa application was refused on the basis that PIC 4020(1) applied.  The Administrative Appeals Tribunal affirmed that decision and an application for judicial review to the then Federal Circuit Court of Australia failed.  The applicant appealed that decision to the Full Court of the Federal Court of Australia.  Griffiths and Moshinsky JJ rejected a submission that the visa applicant had not given, or caused to be given, the “bogus document”.  After reviewing thoroughly a great many authorities, including an earlier decision of the Full Federal Court in Trivedi v Minister for Immigration and Border Protection[10], their Honours relevantly said[11]:

[9] (2018) 261 FCR 556.

[10] (2014) 220 FCR 169.

[11] (2018) 261 FCR 556 at 596 [159].

“On the evidence before the AAT, the appellant was content to have his brother-in-law act as his intermediary and to provide documents to the Department in support of his visa application.  In the events that occurred, the brother-in-law engaged a migration agent to take the final step of lodging the visa application and supporting documents with the Department, including the bogus IELTS test results allegedly manufactured by the brother-in-law.  The appellant claimed that he was unaware of his brother-in-law’s alleged intervening fraudulent conduct in altering the IELTS test results.  The evidence before the AAT was to the effect that the appellant did not have any direct contact with the migration agent but it appears that the appellant did not claim that he was unaware of the fact that his brother-in-law had retained a migration agent.  The appellant acknowledged that he had ‘submitted’ his visa application (see [34] above).  In these circumstances, it was reasonably open to the AAT to find that the appellant ‘provided’ to the Department the documents in support of his visa application, including the bogus document.  Similarly, it was reasonably open to the AAT to find that the appellant had given or caused to be given a bogus document to the Department, having regard to his knowledge and willingness for his brother-in-law to act as his intermediary.  The position might be different if a visa applicant is totally unaware of the fact that a visa application has ostensibly been made on his or her behalf by a migration agent, whether or not an intermediary is also involved.”

The defendant emphasised from the foregoing passage that for the purposes of establishing that a person gave, or caused to be given, a “bogus document”, it was sufficient that the visa applicant in Singh had been “content to have his brother-in-law act as his intermediary and to provide documents”.  The fact that he was unaware of the brother-in-law’s alleged fraudulent conduct did not preclude a conclusion that he had nonetheless “caused to be given” the document in question.

Bromberg J dissented in Singh.  In that respect, the parties accepted that I was free to apply either the reasoning of Griffiths and Moshinsky JJ, or Bromberg J, or neither.  Bromberg J decided that a person does not give, or cause to be given, information or a document, for the purposes of PIC 4020(1), unless the person is responsible for the “physical transfer” of the document or information.  His Honour said[12]:

[12] (2018) 261 FCR 556 at 558 [5] (emphasis in original).

“[T]he criteria of engagement of PIC 4020(1) is that ‘the applicant has given, or caused to be given, to the Minister . . . a bogus document or information that is false or misleading in a material particular’ (emphasis added).  The text may well deal with more than merely the physical transfer of a document or of information from a visa applicant to the Minister.  But at the least, PIC 4020(1) is concerned with whether the document or information was provided by the visa applicant to the Minister.  To that extent, its text may sensibly be read as providing that PIC 4020(1) is only engaged where the bogus document or false or misleading information is either directly provided to the Minister (or his or her delegate) by the visa applicant or the visa applicant bears sufficient responsibility for its provision to enable the conclusion that the visa applicant ‘caused [the document or information] to be given’.”

Bromberg J concluded that because the Administrative Appeals Tribunal had failed to ask whether Mr Singh “bore responsibility for the provision of the bogus document”, it had misconstrued the words “given, or caused to be given”[13].  Having misconstrued PIC 4020(1), the Tribunal had thereby erred.

[13] (2018) 261 FCR 556 at 561 [17]-[18].

I will assume in favour of Mr Rong that the test propounded by Bromberg J is correct.  Bromberg J did not in his reasons elaborate on what is required to take “sufficient responsibility” for the physical provision of a document or information.  However, in the context of PIC 4020(1), it must refer to a person who, in some way, has participated in the means by which a document or information has “caused to be given” to the Department or has authorised in some way for this to happen.  Taking responsibility in this context might also simply be a way of describing what it is to “cause” a document or information to be provided.  Either way, it would not include a case where a person had no knowledge of the giving of the document in question; nor would it include a case where a person did not participate or become involved in any way in the preparation of the document or did not in any way authorise its communication in some way.  It would also probably not include a person whose participation and involvement in the preparation of the document was only minimal or slight.

But Mr Rong does not fall within any of these non-exhaustive categories.  For the reasons I have given, he did participate in the preparation of the July 2018 letter, and that participation could not be characterised as only slight.  At least 162 pages of documents were provided by him to Ms H.  For the reasons explained above, I infer he provided them to Ms H because he knew that the Department had made a request for further information and that a response was being produced.  He knew that the Department wanted more information about his business and what he did in it.  He was thus responsible, together with Ms H, for causing the letter to be sent.

It does not matter that Mr Rong may not have known about all that was said in the letter concerning his management of the business.  Ms H, it would appear, at the very least exaggerated the detail of his role.  It is perfectly possible that if Mr Rong had known about the detail of the inaccuracies contained in the letter he may well have protested against their inclusion.  After all, he was perfectly candid about the deficiencies in his job description in his statutory declaration dated 1 April 2019.  But that does not avoid the conclusion that he nonetheless participated in the physical transfer of the letter, in the sense I have described above, and that the letter contained misleading material.  On the objective evidence, he cannot be untangled or divorced from the communication of the false information.  Regrettably for Mr Rong, he was “sufficiently responsible” for giving a letter of this kind.

The same conclusion arises if one were to apply instead the reasoning of Griffiths and Moshinsky JJ in Singh.

The allegation of fraud

Neither party called Ms H to give evidence.  In those circumstances, the contention that she had committed a fraud in describing Mr Rong’s typical work cannot be made out.  The burden of proving fraud is a heavy one[14].  Here, the only evidence of fraud was the fact of the contents of the July 2018 letter and Mr Rong’s evidence that those contents were incorrect and had not been relayed to Ms H.  That falls well short of what is required to prove a fraud which has vitiated the exercise of a statutory duty[15].

[14]    See, eg, SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at 455 [51] per Allsop CJ (Mortimer J agreeing), citing SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501.

[15]    Minister for Home Affairs v DUA16 (2020) 271 CLR 550. See also SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.

Relief

I make the following orders:

(1)Pursuant to s 486A(2) of the Migration Act 1958 (Cth), the period within which the plaintiffs’ application may be made in relation to the decision made on 1 July 2021 by a delegate of the defendant be extended to 23 December 2021.

(2)Pursuant to r 4.02 of the High Court Rules 2004 (Cth), the time fixed by rr 25.02.1 and 25.02.2(b) be enlarged for the purposes of the plaintiffs’ application.

(3)The proceeding be dismissed.

(4)The plaintiffs pay the defendant’s costs.

Would you please adjourn the Court.

AT 9.31 AM THE MATTER WAS CONCLUDED