"It is also noted that the plaintiffs are seeking to utilize her right to have judicial review of the matter despite having an option to have merit reviewed by the tribunal first which could be regarded as an abuse of process leading to relief being denied.

The plaintiffs regard it to be fair and reasonable to seek to have the matter properly considered by two decision makers: the original decision maker in the form of the delegate of the defendant and the Tribunal upon review if there is a refusal.

Having denied proper consideration of claim by the original decision maker, it would be unfair for the plaintiffs to only get one actual review of the merit of the case, should she use her merit review right where it is unreasonable for the decision maker to refuse the visa in the given circumstances.

Should the Court find the decision to be unreasonable, the plaintiffs would still be able to have the merit reviewed by both the original decision maker and the tribunal and so justifies an action to seek judicial review over merit review of the matter.

It is submitted that there is no abuse where the decision is unreasonable and deny the plaintiffs its basis right to proper consideration of the application crucial for her."

1. These arguments are misguided for two reasons. First, as Gordon J held in Lam v Minister for Immigration and Border Protection ("Lam"),[3] where an application for merits review is "ongoing and yet to be concluded" (in addition to being "valid on its face" and made within the prescribed time limit) it is "not appropriate" for this Court to determine an application for a constitutional or other writ.[4]
2. Here, the Court has not received a copy of the plaintiffs' application to the ART. However, the plaintiffs, having made that application themselves, plainly must be taken to accept that it is "valid on its face" as in Lam. The defendant has also accepted that the ART has jurisdiction to determine that application. It is also apparent from the above arguments advanced by the plaintiffs that the merits review application remains extant in the ART (at least as at the time that their application in this Court was filed). Moreover, in respect of the prescribed time limit, the application to the ART was required to be made within 28 days of the notification to the applicant of the reviewable protection decision under s 347(3)(b) of the Migration Act. As the delegate's decisions were notified to the plaintiffs on 14 March 2025, they had until 11 April 2025 to make such an application, meaning that their application to the ART on 7 April 2025 was made within the prescribed time limit.
3. It follows that the merits review application was made validly and within the prescribed time limit, and so the ART is required to review it under s 348(1) of the Migration Act. As such, it would not be appropriate for this Court to determine the present application.
4. The second reason that the plaintiffs' arguments must be rejected is that the plaintiffs, just as in Lam, do "not, and cannot, identify any fact or matter that might be said to constitute an exceptional circumstance to warrant this Court considering the application without [their] statutory rights of review having been exhausted".[5]
5. The plaintiffs submit that the alleged legal unreasonableness is the "exceptional circumstance" which warrants the present application while the plaintiffs continue to enjoy a statutory right of appeal. In that respect, they also rely on Minister for Immigration and Citizenship v Li ("Li"), in which this Court found that a decision of the Migration Review Tribunal to refuse the applicant's request for an adjournment to obtain further materials in support of their application for a visa was unreasonable.[6]
6. However, there is no force in this argument. A complaint of legal unreasonableness is not an "exceptional circumstance" that would warrant the intervention of this Court in circumstances where statutory rights of review have not been exhausted. Legal unreasonableness is simply a ground of judicial review and is not sufficient for this Court to supplant the scheme for reviewing decisions under the Migration Act.
7. If the plaintiffs' merits review application is unsuccessful, they may seek judicial review of the ART's decision in the Federal Circuit and Family Court of Australia (Division 2) under Pt 8 of the Migration Act, and thereafter by way of appeal, including ultimately by way of an application for special leave in this Court.
8. In these circumstances, the plaintiffs' application for a constitutional or other writ is an abuse of process and accordingly, should be summarily dismissed pursuant to rr 25.09.3(b) and 28.01.2(c) of the High Court Rules 2004 (Cth).
9. In light of my foregoing reasons, it is unnecessary to determine the underlying claim of legal unreasonableness on the part of the delegate.

1. The application for a constitutional or other writ should be summarily dismissed with costs.
2. The Minister also sought an order that his name in this proceeding be amended to the "Minister for Immigration and Citizenship" (to reflect the current description of their office). I also make that order.

[1] The plaintiff's application is expressed to seek judicial review in respect of "the decision" of the delegate on 14 March 2025. As explained below, the delegate in fact made two separate (but closely related) decisions on 14 March 2025.

[2] [2016] HCA 41; (2016) 91 ALJR 1 at 8-9 [22]; [2016] HCA 41; 338 ALR 360 at 367 (footnotes omitted).

[3] [2019] HCATrans 174.

[4] [2019] HCATrans 174 at lines 55-74.

[5] [2019] HCATrans 174 at lines 74-79.

[6] [2012] HCA 61; (2013) 249 CLR 332.