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

[2023] HCATrans 39

[2023] HCATrans 039

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 MELBOURNE AND BY VIDEO CONNECTION

ON WEDNESDAY, 29 MARCH 2023, AT 11.59 AM

Copyright in the High Court of Australia

MR M.W. GUO:   May it please the Court, I appear for the plaintiffs.  (instructed by Lincolns Lawyers & Consultants)

MR G.J. JOHNSON:   If the Court please, I appear for the respondent.  (instructed by Sparke Helmore Lawyers)

HIS HONOUR:   Yes, Mr Guo.

MR GUO:   If your Honour pleases.  May I begin by dealing with two brief housekeeping matters?

HIS HONOUR:   Yes.

MR GUO:   The first is, as your Honour appreciates, from the nature of the allegations that have been made in this case.  My learned friend and I intend to refer to the third party as either, simply, “the agent” or “Ms H” in the course of today.

HIS HONOUR:   Yes, I am happy with that.

MR GUO:   Then, the other matter by way of housekeeping is your Honour will have seen in our application that we seek an extension of time to 21 December 2021.  As it transpired, the application was not accepted for filing until the 23rd, so that just needs a slight amendment.

HIS HONOUR:   So, you want it for the 23rd of ‑ ‑ ‑ 

MR GUO:   December 2021.  I think I may have misspoken and said March previously.

HIS HONOUR:   So, 23 December 2021.  Do you object to that, Mr Johnson?

MR JOHNSON:   No.

HIS HONOUR:   You will have that extension.

MR GUO:   If your Honour pleases.  Does your Honour wish me to formally go through all of the evidence upon which ‑ ‑ ‑

HIS HONOUR:   No, what I would like to do is just make sure I have got everything you want me to look at.

MR GUO:   Yes.

HIS HONOUR:   So, I have got, in the materials, there is an affidavit of Ms Tan affirmed on 20 December 2021, would you read that?

MR GUO:   I do, your Honour.

HIS HONOUR:   Any objection?

MR JOHNSON:   No, your Honour.

HIS HONOUR:   All right.  That affidavit and its exhibits are taken as read.  Then, I have got an affidavit – I will get to it in a minute – of Mr Rong, which I think was affirmed or sworn on 20 June 2022?

MR GUO:   Yes, your Honour, and I read that.

HIS HONOUR:   You would read that, any objection, Mr Johnson?

MR JOHNSON:   There is no objection.

HIS HONOUR:   All right.  That affidavit is taken as read, with its exhibits.  Are there any other affidavits?

MR GUO:   There are no other affidavits, but there is the ‑ ‑ ‑ 

HIS HONOUR:   But we have got some material.

MR GUO:   Yes.

HIS HONOUR:   Yes.  So, just to let you know what I have, Mr Guo, I have two volumes of materials entitled “bundle of documents” part 1 and part 2.

MR GUO:   Yes, your Honour, so, I tender those ‑ ‑ ‑ 

HIS HONOUR:   You seek to tender those.  Any objection, Mr Johnson?  All right, well, then, exhibit 1 will be two volumes of “bundle of documents” dated 22 June 2022.  Now, as always, Mr Guo, unless one of you takes me to a document in that bundle, I will not be reading it.

MR GUO:   No, of course, your Honour, and your Honour will have seen also, from Mr Rong’s affidavit, that he himself cross‑references some of those documents.

HIS HONOUR:   Yes, that is quite all right, yes.  Anything else, in terms of what evidence you want before me?

MR GUO:   Not in terms of the evidence, your Honour.

HIS HONOUR:   All right.  Well, then, you propose to call Mr Rong?

MR GUO:   I do.

HIS HONOUR:   All right.  Does he have all of this material translated?

MR GUO:   He has the material which my opponents have notified my instructing solicitors they wish to take him to.

HIS HONOUR:   Do we have an interpreter here?  Yes?  Would you come forward, please.  I think the practice of the Court is normally to swear in the interpreter.  I did not do it so much when I was a Federal Court judge, but I think if you are both content with that, we should do that, before we have Mr Rong sworn in.  Would you step into the witness box, please?

DONGMEI CHEN, sworn as interpreter.

HIS HONOUR:   Thank you for that.  You may sit down.  Can I have your name, please?

THE INTERPRETER:   Sure.  First name is Dongmei, surname Chen.

HIS HONOUR:   Thank you, Ms Chen.  If the Court Officer could – he affirmed his affidavit, did he not?

MR GUO:   He did, your Honour.

HIS HONOUR:   If you could have Mr Rong sworn in and affirmed.

JINTANG RONG, affirmed:

HIS HONOUR:   He has a translation of his affidavit there, Mr Guo?

MR GUO:   He does, your Honour, and that has been agreed, subject to one issue about the spelling of his name in Chinese characters, but I do not think that will be controversial.

HIS HONOUR:   I do not think I need to be worried about that, I hope.

MR GUO:   I do not think so, your Honour.

HIS HONOUR:   All right.  Do you have any questions?

MR GUO:   Just the formal ones, your Honour.

HIS HONOUR:   Thank you.  Go ahead.

MR GUO:   Mr Rong, could you please confirm your full name to his Honour?‑‑‑Jintang Rong.

HIS HONOUR:   Thank you.

MR GUO:   And, Mr Rong, what is your current address?‑‑‑Number 8, Street number 2, Bi Shui Xuan, Chencun District, Shunde City, in Foshan Province.

Mr Rong, you affirmed an affidavit in this proceeding on 20 June 2022, correct? ‑‑‑Yes, I did.

Are there any corrections you wish to make to that affidavit?‑‑‑Yes.  In terms of the spelling of my surname, instead of “Rong” it was “Wang”, and then my name “Tang” – it was another Chinese character with similar pronunciation but different handwriting.

I do not wish to give evidence from the Bar Table, your Honour, but that is an artifact of the translation, which I referred to.

HIS HONOUR:   That is all right.  Are we all content, just for the moment, for the purposes of the proceedings, to call him “Mr Rong”?

MR GUO:   Yes.

HIS HONOUR:   Mr Johnson?  Yes, all right.  Could you please tell Mr Rong to have his phone turned off?

MR RONG (through interpreter):   Sure.

HIS HONOUR:   Thank you.

MR GUO:   Mr Rong, are there any other corrections you wish to make to your affidavit?‑‑‑On paragraph 43, it reads “Mr Xing”, it should be “Ms Xing”.

HIS HONOUR:   So, “Ms” rather than “Mr”.

THE INTERPRETER:  Yes, “Ms” instead of “Mr”.

MR GUO:   Anything else, Mr Rong?‑‑‑No.

If your Honour pleases, those are my questions.

HIS HONOUR:   Thanks, Mr Guo.  Mr Johnson.

CROSS‑EXAMINED BY MR JOHNSON:

MR JOHNSON:   Thank you, your Honour.  If the Court please.  Good morning, Mr Rong.

MR RONG (through interpreter):   Good morning.

MR JOHNSON:   Mr Rong, Mr Guo appearing for you, asked you before about your affidavit.  Do you have a version of that affidavit written in Chinese in front of you?‑‑‑Yes, I do.

During the questions I am going to ask you, Mr Rong, I will be referring to the migration agent that you refer to in that affidavit.  You understand the migration agent I am referring to, do you?‑‑‑Yes.

And, to be clear, because I know you mentioned more than one migration agent in your affidavit, I am referring in particular to the migration agent that you engaged in about August 2014.‑‑‑Yes.  I understand.

And for the purposes of my questions, and so as not to identify that migration agent, I will be referring to her as “Ms H”.‑‑‑Okay.

Thank you, Mr Rong.  Mr Rong, if you take up your affidavit, please.  You came to Australia on a subclass 163 visa in about 2014, is that right?‑‑‑Yes.

And at paragraph 8 of your affidavit, you say that you “knew” that you “needed to apply for a further visa in order migrate to Australia permanently”?‑‑‑That is correct.

And you say that to do that, you “knew that it would be a good idea to engage an Australian migration agent”?‑‑‑Correct.

In that knowledge, you engaged Ms H, correct?‑‑‑Correct.

And at paragraph 9 you say that you:

did not know of the specifics of what was required in order to obtain a subclass 892 visa –

and that is why you engaged a migration agent?‑‑‑That is correct.

And you signed a contract with Ms H, correct?‑‑‑Yes.

And in having signed that contract and engaged Ms H, you intended her, did you not, to take appropriate steps to help you obtain a subclass 892 visa, correct?‑‑‑Correct.

And part of those steps, or one of those steps, you anticipated would include the lodging of a visa application form, correct?‑‑‑Yes.

And another one of those steps that you anticipated Ms H would take would be to collect documents or materials to send to the Department in support of the visa application?‑‑‑Yes.

And those matters I have mentioned were some of the items referred to, indeed, in your contract with Ms H, to which you refer in extract at paragraph 11 of your affidavit.  Can you see that?‑‑‑Yes.

Mr Rong, it is the case, is it not, that you contemplated that Ms H would send letters to the Department in connection with your visa application addressing necessary requirements for the grant of the visa, is that right?‑‑‑Yes.

And you never said to Ms H, did you, that she should always notify you before sending any document to the Department on your behalf in connection with your visa application?‑‑‑I did not.

And one of the letters that Ms H did send to the department, and it is a letter of some significance for your case, is one that Ms H sent on her company’s letterhead to the Department dated 11 July 2018?‑‑‑Are you talking about the training interview report?

No, I do not think so, Mr Rong.  The letter I am referring to is a letter that you should have a copy of in Chinese in front of you.  Can you confirm that you have a letter dated 11 July 2018 written in Chinese?‑‑‑My apologies.  Let me have a look.

For your Honour’s reference, this letter appears at page 233 of the application.

HIS HONOUR:   I have a separate copy of it.

MR JOHNSON:   Thank you, your Honour.

MR RONG (through interpreter):   Because it has been a while, so I cannot recall very well.

MR JOHNSON:   That is all right, Mr Rong.  All I want to confirm is whether you have the translation of that letter in front of you?‑‑‑I am still looking for it.

HIS HONOUR:   Mr Johnson, this letter is in one of the volumes of the book ‑ ‑ ‑ 

MR RONG (through interpreter):   Yes, I have got it.

HIS HONOUR:   This letter is in one of the volumes ‑ ‑ ‑ 

MR JOHNSON:   Not the translated version into Chinese.

HIS HONOUR:   Okay.

MR JOHNSON:   But that is a version that was provided to Mr Rong.

HIS HONOUR:   Do you recall if it is in volume 1 or 2?  I have got it separately, but I just want to mark it.

MR JOHNSON:   Yes – no, the English version of the letter is at volume 1 at page 233.

HIS HONOUR:   Thank you.

MR JOHNSON:   Mr Rong, if you take up that letter, can you see it is addressed, on page 1 of the letter, to the Adelaide Business Skills Processing Centre of the Department of Home Affairs?‑‑‑Yes.

There are some headings, which in my version of the letter are in bold, but I do not know whether they are in the same form in your letter, but there are some headings, the first of which is “Ownership”, can you see the heading “Ownership” on your letter?‑‑‑Yes, so you are talking about the ownership of the business purchase, in relation to the business purchase?

Yes, that is one of the topics addressed in the letter.‑‑‑Yes.

And can you see the next heading, Mr Rong, the word “Management”?  I am sorry, Mr Rong, can you see that heading in the letter, the word “Management”?‑‑‑Yes, I do.

And under that heading, with the number 1, the letter says:

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

And then underneath that heading are some dot points.  Can you see those dot points in your letter, Mr Rong?‑‑‑Yes.

There are some dot points stating what your shop opening hours are, can you see that?‑‑‑Yes.

And then under that, there are a list of dot points that refer to various duties or tasks that the letter says you undertake in your business.  And your evidence, Mr Rong, is that a number of those items are not things that you told Ms H that you did in your business, is that your evidence?‑‑‑Correct.  She wrote this to let me know the – you know, the topics that I need to review for the interview with the case officer.

Do you say, Mr Rong, that each of the activities in those dot points are not activities that you did in your business?‑‑‑Well, I am doing some of those activities, but not all of them, in terms of managing the business, because it is saying that, you know, every day I have to do all these – the whole list of things.  There are lots of them.  It would not be possible for me to do that many things.

Four dot points from the bottom of that list, the letter says:

Visit Dan Murphy’s to purchase beer once a week –

Can you see that?‑‑‑Yes.  I did visit Dan Murphy two to three times a week to see whether there was any special discounts for beers.

Yes.  And you told Ms H that that was one of the things you did in your business prior to 11 July 2018, did you not?‑‑‑Yes.

So, just to be clear, you did, prior to 11 July 2018, have a conversation with Ms H about the duties you performed in your business, correct?‑‑‑Well, I did not tell her what I did in terms of managing the business prior to lodging the additional material, but at the time or after, you know, the lodgment of the additional material she did ask me questions in relation to my management of the business.  She was worried that there would not be enough time, so she did ask me what I did, and then I told her.

Mr Rong, you accepted a moment ago that you told Ms H about visiting Dan Murphy’s to purchase beer, and you told her that prior to 11 July 2018, is that your evidence?‑‑‑If – when you are talking about prior to 11 July 2018, I am not sure whether that was the – I cannot remember very well whether that was the time where the additional material was requested or lodged, but prior to the additional material, I did not tell Ms H about my operation of the business.  I only provided her with my taxation and, you know, the business financial statements.

Well, I suggest to you, Mr Rong, that you did tell Ms H something to the effect that you would visit Dan Murphy’s to purchase beer once a week, and that you told her that prior to the date of this letter, 11 July 2018?‑‑‑I did not communicate with her in relation to my work prior to that time.

No further questions, your Honour.

HIS HONOUR:   Thank you, Mr Johnson.  Any re‑examination, Mr Guo?

MR GUO:   No re‑examination, your Honour.

HIS HONOUR:   Thank you, Mr Guo.  Ms Chen, could you tell Mr Rong that that is the end of his cross‑examination, and he may be discharged from attending Court.  If he wishes to stay online to watch the proceeding, that is fine.  If he wishes to turn off the connection and do something else, that is fine as well.

MR RONG (through interpreter):   Thank you very much.

HIS HONOUR:   Does he wish to stay and watch?

MR RONG (through interpreter):   Yes.  I would like to stay.

HIS HONOUR:   All right.  You are free to do that.  Thank you for giving your evidence.  Thank you.

MR RONG:   Thank you so much.

HIS HONOUR:   Thank you.  All right.  Yes, Ms Chen, one more thing to ask Mr Rong, could he mute his end so that we do not get interference?

THE INTERPRETER:   Sure.

MR RONG:   Thank you.

THE WITNESS WITHDREW

HIS HONOUR:   Thank you.  Sorry about that.

MR GUO:   Not at all, your Honour.  If your Honour pleases, I am mindful that at the last mention of this matter, your Honour indicated to the parties that if you would receive any oral submissions, they would be confined to what might have arisen out of the viva voce evidence.

HIS HONOUR:   Yes.  Yes.  And I will say this, if there is anything that you wanted to add from your written submissions – and this is to both of you – leave aside the evidentiary issue, if I can call it that, which you will say something about, I suppose, in a moment.

MR GUO:   Yes.

HIS HONOUR:   Then there will be the issue of the two judgments in Singh.

MR GUO:   Yes.

HIS HONOUR:   If there is anything you wanted to add to why you, presumably, want me to follow Justice Bromberg’s judgment, and you want me to follow the majority judgment.  That is pretty much where the tipping point is.

MR GUO:   Yes.  That is essentially it.  And for our part, we submit, respectfully, that we have been rather comprehensive in our written submissions.

HIS HONOUR:   I think you have, yes.

MR GUO:   I am not sure there is much more for your Honour to have from me, in that I do not think I can assist your Honour particularly further, unless there were specific questions your Honour had of me.

HIS HONOUR:   No.  I will have to think about it.

MR GUO:   If your Honour pleases.  So, then, in relation to ‑ ‑ ‑ 

HIS HONOUR:   I mean, it is not suggested that – and I do not think Mr Johnson is, that I could be, in any way, bound by Singh.

MR GUO:   No.

HIS HONOUR:   No.

MR GUO:   We do not make that suggestion.

HIS HONOUR:   The freedom.

MR GUO:   I think there is some discussion, at least in academic circles, about whether a Justice of the High Court sitting alone is bound by ‑ ‑ ‑ 

HIS HONOUR:   I know there is, yes.

MR GUO:   But we are not making the submission ‑ ‑ ‑ 

HIS HONOUR:   You are not taking that point, no.

MR GUO:   No.

HIS HONOUR:   All right.  Proceed.

MR GUO:   So, then, it just remains for me to make some submissions about the nature of the evidence.

HIS HONOUR:   Yes.

MR GUO:   In short, the core of Mr Rong’s evidence and, as it matters for what is really in dispute here, is that the chronology reveals that he did not have any involvement with the preparation of what the submissions have referred to as the list of duties.  He did not have any input into that.  He became aware of it, and the falsities in it, only after it was lodged.  I can take your Honour to the specific parts of Mr Rong’s affidavit where he makes or gives that evidence.  The short point is, despite cross‑examination, he was not moved from that position.

So, insofar as Mr Rong acquired any awareness of the falsity of parts of the list of duties, that awareness arose at a time when, I will put it this way, the damage had already been done.  The opportunity for the non‑application, or non‑satisfaction of PIC 4020 had already arisen.  So, it does not actually matter that later on he became aware of the falsity.  By that stage, the damage had already been done.  And, in fact, my submission is it is to his credit, it is a further reason for your Honour to accept his evidence, that he admitted to the knowledge of the falsity.  It is just that the admission of the knowledge of the falsity took place at a point in time which has no legal consequence for the application or non‑application of PIC 4020.  As I have said before, the damage had already been done.

So, essentially, that is the crux of what we submit is important for your Honour.  He was not involved, he was not party to nor privy to the provision of that false information upon which the delegate relied.  He said so in terms, he was not moved in cross‑examination, it is consistent with, for example, the timesheets that he has referred to in his affidavit, which he retrieved from the agent’s premises.  There is nothing in there, as your Honour has seen, which suggests that there was a conference that took place for the purpose of receiving instructions – and that was the premise of some of my learned friend’s cross‑examination.

HIS HONOUR:   Well, what do you say, if I asked you to take me to the document which most aptly sets out the false statements, and what his knowledge was of the giving of that document, leave aside the contents.  What do you say about that?

MR GUO:   He says he was not privy to, and did not have any knowledge of the giving of that document.  So, if your Honour goes to ‑ ‑ ‑ 

HIS HONOUR:   His affidavit?

MR GUO:   His affidavit, yes.  So, your Honour sees from around paragraph 20 of the affidavit, Mr Rong sets out what his expectations were of the agent.  Then, relevantly, if your Honour goes to paragraph 23, there is some evidence there about the nature of the communications and the limited communications he did have with the agent’s office, and that is consistent with what your Honour heard in the box today.  In terms of the specific letter, if your Honour goes to paragraph 35.

HIS HONOUR:   Yes.

MR GUO:   I appreciate I am skipping the necessary context ‑ ‑ ‑ 

HIS HONOUR:   That is all right.

MR GUO:   But 35 is really the high point, there, which I think answers your Honour’s question.  Mr Rong deposes that the agent “had already submitted the list of duties” ‑ ‑ ‑ 

HIS HONOUR:   And is that the 11 July letter?

MR GUO:   That is that letter, yes.

HIS HONOUR:   Yes, all right.

MR GUO:   And to be clear that he is referring to that letter, if your Honour goes back to paragraph 20, there is the reference to “the PIC 4020 letter”.

HIS HONOUR:   Yes.

MR GUO:   So, that is the letter which was the subject of the cross‑examination earlier today.

HIS HONOUR:   So, do you want me to make a finding of fact that not only did he have no knowledge of what was in the letter, that he did not know it had been sent.

MR GUO:   Yes.

HIS HONOUR:   And he did not ask for it to be sent in any specific way?

MR GUO:   Yes.

HIS HONOUR:   So, do you put your case, then, on an alternative basis, namely, (a), it could not be said he caused the thing to be sent ‑ ‑ ‑ 

MR GUO:   Yes.

HIS HONOUR:   And then (b), Justice Bromberg is right.

MR GUO:   Yes.  Yes, so they are, if I understand your Honour’s question correctly, the answers that we urge, which correspond to grounds 1 and 2 of our application.

HIS HONOUR:   So, what do those words, “cause” – I think the phrase is “caused to be sent”, or something like that.

MR GUO:   Yes.

HIS HONOUR:   There are two ways of looking at it.  Mr Johnson will no doubt say, well, “cause” here merely means retaining a migration agent and telling them to get you a visa, that is causing it to be sent.

MR GUO:   Yes.

HIS HONOUR:   That is one way of looking at it.  Another way of looking at it is that it requires a much more specific direction or instruction and awareness of a document being sent, regardless of whether you had knowledge of its contents.

MR GUO:   Yes, and perhaps, if I might submit, there is a third answer ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR GUO:   ‑ ‑ ‑ which is really the way we put our case, which is, notwithstanding the existence of general instructions and the existence of a general retainer to act, and here, consistent with the contracts, the words “caused to be provided” in PIC 4020, because they are in PIC 4020, must mean a bit more than just having engaged someone and something being provided in the general course or scope of that authority.  Here, the evidence is what was provided was outside the scope of that authority, so it is not – it may not be necessary for your Honour to make a specific finding one way or the other about the particular provision of this document.

One of the questions in cross, as I apprehended it – understood it, was did Mr Rong provide instructions for the sending of that particular letter?  The third answer to your Honour’s question about the construction of PIC 4020 does not depend on a particular finding, because the evidence is, as we submit, that the letter was provided beyond the scope of authority.

HIS HONOUR:   Is there anything in Singh which deals with the interpretation “caused to be provided”?

MR GUO:   I do not ‑ ‑ ‑ 

HIS HONOUR:   If you cannot remember off the top of your head ‑ ‑ ‑ 

MR GUO:   No.

HIS HONOUR:   ‑ ‑ ‑ you have leave, we have – once you have shown Mr Johnson and he is happy, just to send a communication to the Court setting out the paragraphs you would like to highlight.

MR GUO:   If your Honour pleases.  Does that answer your Honour’s questions ‑ ‑ ‑ 

HIS HONOUR:   Yes, I think it does.

MR GUO:   ‑ ‑ ‑ about the findings which we say your Honour should make.  If I then might return to some few other high‑level submissions about the nature of the evidence.  I made a point about the timesheet, and Mr Rong has given evidence, he says in his affidavit he retrieved the timesheet from the records he obtained from the agent’s office.

The point there is that there is nothing in that timesheet, purported timesheet, which is anything along the lines of charging for time or recording of time corresponding to a conference to take instructions.  If there was something like that, then perhaps factually this case might take a different complexion, but there was not, and that is another way of saying that the chronology that Mr Rong has given evidence about, both in writing and in the box today, is consistent with all the other facts that are available.

One final point that I would make about the nature of the evidence is that, whilst we certainly do not hang our hat and we do not say it is necessary for your Honour to find, it is open for your Honour to draw a Jones v Dunkel inference from the Minister not calling the agent.  We have made the point in written submissions that the Minister knows how to get in touch with the agent, and, in fact, the submissions in writing from the Minister concede that that side of the Bar Table has taken certain steps, but she has not shown up today, and naturally, she is a witness – bearing in mind the nature of the allegations – she is a witness in the Minister’s camp, not the plaintiffs’ camp.

So, if your Honour were unsure about and needed some more comfort about whether to draw particular inferences, then your Honour can find comfort in a Jones v Dunkel inference arising from the Minister not calling the agent.  That is to say ‑ ‑ ‑ 

HIS HONOUR:   Is that just a general inference that her evidence would not have supported the Commonwealth’s case?

MR GUO:   That is right, your Honour.

HIS HONOUR:   All right.

MR GUO:   But, as I hasten to add, we do not submit that your Honour needs to go that far.  From the evidence that is already positively in front of your Honour, you can reach the conclusions necessary for the plaintiffs to succeed.  There are other matters about the evidence, which we have set out in writing, and we maintain those points, and nothing that has transpired in the box today detracts from that.  I do not propose to simply just repeat that, your Honour.

HIS HONOUR:   All right.

MR GUO:   If your Honour pleases.

HIS HONOUR:   Thank you for that.  Yes, Mr Johnson.

MR JOHNSON:   If the Court please.  With respect to the construction question that arises in ground 1, a great deal depends upon how your Honour is being asked to construe the words “given” or “caused to be given”, and they cohere with the findings of the delegate in this case being the relevant engagement with the public interest criterion that was applied here.  In my submission, the construction proffered by the plaintiffs is too broad, and in fact would be unworkable in a similar way as discussed by Justice Buchanan when approaching PIC 4020 in Trivedi.  One of the bases of his Honour’s reasoning there concerning the question of whether it needs to be established that a person knows about the falsity of information or a document is that it would be essentially unworkable for an administrator to have to delve into the mind of the visa applicant.

Similar considerations apply here, and that, in my submission, seems to underpin where the majority were coming from in finding no error by the Tribunal in Singh in taking the Trivedi path in the factual circumstances that arose in that matter, which, as your Honour will have seen, are more closely aligned to the present case than, for instance, the Trivedi Case, which was a different case.  If it were the case – and I want to address here what my friend said about the giving of general authority, there is no question here on the facts that Mr Rong gave Ms H general authority to be his migration agent to make a visa application, which she did, and to send documents to the Department on his behalf in connection with that application, which she also did.

HIS HONOUR:   And you say, even if it be the case that she acted outside the scope of her authority, from the Department’s perspective she had ostensible authority.

MR JOHNSON:   Yes, and the simple fact that she provided a letter to the Department in the course of her duties as a migration agent in sending a letter addressing visa requirements to the Department, the fact that that letter contained errors or even falsehoods does not derogate from the fact that the letter was sent within authority, at least ostensible authority.  If that were not the case, and if the provision of a letter containing falsehoods in respect of a visa application was outside of the authority of the agent, then PIC 4020 would have very limited, if any, operation in any case where a migration agent was engaged by a visa applicant and sent a letter of that kind.

That would not, in my submission, be a tolerable construction of the provision which, as your Honour has seen from Trivedi and other cases, explains the purpose of the provision as being, among other things, to ensure that the Department does not consider or assess visa applications by reference to false information.  So, in my submission, at the core of it, at the very least, Mr Rong, in having accepted in the witness box today the matters he properly accepted, consistent with his affidavit evidence about the nature of the general authority he gave to Ms H, the provision of that letter that Ms H gave to the Department in the course of her general duties as a migration agent within that authority was, at the very least, caused to be given by him, lest it be suggested in any context that the sending of a letter without notice to the principal is not sent by the principal – I mean, that would be contrary to most notions of agency, whether it is a migration agent context or any other principal‑agent scenario.

That construction as I have put is consistent with the majority in Singh.  When one, in fact, reads the minority and majority positions in that case, despite the fact that the controversy before your Honour in some part hinges upon those differences, there is perhaps less difference than first – than is first apparent.  Justice Bromberg appeared to be troubled with the notion that, in the circumstances of that case, where an intermediary – indeed, the visa applicant’s brother‑in‑law – had, without the awareness of the visa applicant, produced, created, some false records for provision to the Department, his Honour was troubled with the notion that the visa applicant should bear responsibility for that.

And his Honour uses those words, bears responsibility, and his Honour, on the prompting of the applicant in that case, did not interpret PIC 4020 as having a “strict or absolute liability” nature to it.  But in my submission, with respect, it is not apt to look at PIC 4020 as a strict or absolute liability kind of provision.  For the purposes of your Honour’s determination, on ground 1, the question is, was the relevant document given or caused to be given by Mr Rong?  And when one looks at the majority position in Singh, their Honours in their conclusions also used or addressed the question by reference to the bearing of responsibility, but found that the visa applicant should be visited with responsibility in the circumstances of that case, because he, in the words of the majority at paragraph 149, page 593 of the report:

contemplated that this brother‑in‑law would act as his intermediary in dealing with the Department –

So, there is a question of contemplation of the actions of others, even if the actions of the other are not instructed, even if the actions of the other are false, and, indeed, in that case, vindictive, I think, were the circumstances that underpinned the particular facts in Singh.  Perhaps a far cry from the present case, where there is no evidence of those dealings on the part of Ms H, but I will come to that in a moment.

So, the majority there focused on the contemplation of the involvement of the brother as an intermediary.  Here, Mr Rong certainly contemplated, and indeed, engaged Ms H to be his migration agent, to submit a visa application on his behalf and to give documents to the Department in support of that visa application.  The letter that was sent, the 11 July 2018 letter, of its kind, was the sort of letter that one would expect to be sent in a visa application case in that it purported to address the criteria for the grant of a visa.

One factor which, in my submission, is relevant, and which I asked Mr Rong about, which he did not answer directly – but I am not asking your Honour to find that Mr Rong is not credible, he generally is a credible witness, I do not take any issue with that – but in the letter that Ms H sent to the Department, there is a reference to a whole number of different activities, some of which he says, although without great clarity, were not things that he did, or were not correct, and as my friend says, Mr Rong was upfront with the Department about making that admission relied upon by the delegate, but one of the more specific things mentioned in that list, on page 234 of the book, is the visiting of Dan Murphy’s to purchase beer once a week, and Mr Rong said, well, yes, he did visit Dan Murphy’s – I think he said two or three times a week.  And there is reference also to the Dan Murphy’s activities in some of the materials that were given to the Department, as well, as something that he did as part of his management of the business.

HIS HONOUR:   I think his oral evidence today was not to buy beer, but to check beer discounts.

MR JOHNSON:   Yes, that is right, and there is other evidence that, elsewhere in the materials, about how he used to stockpile the – those discounted purchases, in his garage, I think the evidence was.  But the reference to visiting Dan Murphy’s – that, in my submission, is not something that one simply makes up.  There is a certain generic nature to some of the other matters in that list of items there, but as I put to Mr Rong, and what I am submitting to your Honour, is that he must have told Ms H that prior to this letter being sent.

So, to the extent that there are inaccuracies, falsehoods, exaggerations within this list, there is at least some reference there to a matter that Mr Rong more or less confirmed was something he did, in my submission, and that coheres with the argument that I make, that this was a letter sent to the Department in connection with the visa application, and within the general authority of Mr Rong, that Ms H do that in order to ‑ ‑ ‑ 

HIS HONOUR:   So, is it your case, Mr Johnson, that whilst you might be prepared to accept that he had no actual knowledge of the sending of this letter, he must have given her some form of instruction prior to it being sent, and the inference arises from the specificity of “Dan Murphy’s”?  Yes, I see.

MR JOHNSON:   That is the submission.  So, that argument – or that submission that I have just put to your Honour addresses any concerns your Honour might have by reference to, for instance, the timesheet that does not refer to a conference for the giving of instructions.  That sort of evidence can take matters only so far.  This letter must have been prepared with some instruction having been given by Mr Rong.

I do not think your Honour is assisted very much one way or the other on the Jones v Dunkel point.  I resist that your Honour would draw an inference because of any conclusion that Ms H was, as it were, in the Minister’s camp.  In my submission, she is not.  She is a migration agent, she is a member of the public, she is available to be spoken to by the Minister’s representatives or Mr Rong’s representatives.  I certainly, if I can say this to your Honour from the Bar Table, considered it appropriate for the Minister to at least attempt to speak to Ms H, in order that one can understand the matter, the manner of things, but as it turned out, evidence from her was not forthcoming, and my submission is your Honour would not draw an inference one way or the other.

I am not asking your Honour to draw any adverse inferences evidentially against Mr Rong’s case, despite the fact that Mr Rong bears the onus of establishing any fraud in this Court, her absence means that your Honour does not have the benefit of that evidence but, of course, inferences can be drawn from the materials that are available and courts have regularly done that in that respect.

That is all I wish to say about ground 1, your Honour, and ground 2 I have addressed essentially in writing.  I think your Honour understands the point – your Honour will have seen that I do not make any argument that Mr Rong was complicit or in cahoots with Ms H in presenting false information, that is not the Minister’s case.  Rather, it is put, first, is there fraud?  That is a matter for your Honour to be satisfied on the evidence.  The plaintiff bears the onus of establishing that this is fraud.

I do not suggest this is a case of negligence, but there is not a strict dichotomy between fraud and negligence, it is just the fact that cases of negligence are generally not considered to be cases of fraud, at least in a public law sense, but what we have here, and your Honour can infer this from the 11 July 2018 letter and the evidence that Mr Rong gave in the box today, is that the list of items in that letter, whilst admitted to be false, were probably just exaggerations in order to help Mr Rong’s visa application.  Now, is that fraudulent?  Well, that is the question for the Court.  Is it false? 

Yes.  Was it done, perhaps, for the purpose of, at least on Ms H’s part, to help Mr Rong?  That might be another inference available to your Honour.

The question is, is it fraud?  In my submission, no.  The second question:  even if it is fraud, what is the effect?  This Court in DUA16 looked at that question in the context of the Immigration Assessment Authority context, Part 7AA.  In SZFDE this Court has examined very carefully the notion of fraud within, and paying attention to, the particular statutory context in which the impugned decision has been made.  My friend says, well, by the time that letter with its information was submitted it was too late, and he is right in the sense that the false information was relied upon, there can be no question about that, but what was relied upon, the false information, what was not relied upon, in my submission, was the fraud.

Fraud and false information might accompany one another in particular cases, but they do not mean the same thing, and the notion of fraud, as this Court has examined in SZFDE and other cases, involves an element of deception, and that is what stultifies, in my submission.  In the present case, both Mr Rong and the delegate, by the time any decisions were made or any requests for further information were requested by the Department, knew what the state of play was.  They knew what the allegation was.

Mr Rong told the Department that Ms H had done what she had done, and that he did not instruct her or consent to her providing that information, it was all there for consideration.  Yes, that information resulted in an adverse decision under PIC 4020, but that was a consequence of the false information, not a consequence of any deception through a fraudulent procedure.  So, that is the way that I put the argument in relation to ground 2.

May it please the Court.

HIS HONOUR:   Thank you, Mr Johnson.  Anything in reply?

MR GUO:   Yes, your Honour.  There was an exchange between your Honour and my learned friend which resulted in the submission that the construction we advance would result in unworkability about PIC 4020, and then your Honour asked my learned friend whether his case was, if this was not a case of actual authority, then, at least from the perspective of the Department, was it one of ostensible authority?  The difficulty with that submission, in my submission, is that it is artificial to suggest an unworkability is associated with our construction.  Why?  Because there was a natural justice obligation on the delegate under section 57 of the Act to put certain things to the plaintiff, and that is in fact what actually occurred here.

So, unlike the policy considerations which motivated Justice Buchanan to find, as his Honour did, interpreting PIC 4020 as he did, there is no equivalent unworkability here.  There is a built‑in natural justice obligation which requires the putting of certain things, and that is what occurred here.  And it was that very process which flushed out the existence of the false nature of the information that had been provided.  So, that is not unworkability, that is the, in my submission, very opposite of it.  It shows that the system is very workable and the workability of it is what has uncovered the occasion to apply or not apply PIC 4020.

There is also another aspect of the submission made by my learned friend in relation to unworkability, which just does not, with respect, grapple with the policy that sits behind reading PIC 4020 together with Part 3 of the Act, and your Honour has seen what we have said in writing about that.  One cannot just look at PIC 4020 in isolation.  One must also appreciate that it sits within a statutory scheme which regulates the conduct of migration agents.  Now, because that is so, in my submission, it is not correct to read PIC 4020 in such a harsh way, well beyond what Justice Buchanan said PIC 4020 should be, to also fix on a principal the conduct of an agent that is outside the scope of actual or ostensible authority.

HIS HONOUR:   Can I ask you this, apropos Mr Rong’s concession that the information was wrong ‑ ‑ ‑ 

MR GUO:   Yes.

HIS HONOUR:   Do you say I should read “given” or “caused to be given” in an ambulatory way, in the sense that the presence of a misleading false document, which is uncorrected, is what is required, but if the bogus document is corrected, you are outside of PIC 4020, before any decision to refuse the visa is made?

MR GUO:   In my submission, that would be a better construction of PIC 4020.  I only hesitate because I seem to recall there are some cases that deal with this temporal question.

HIS HONOUR:   Yes, there are.  I cannot remember their names.

MR GUO:   Regardless of any submission that I might or might not make about the correctness ‑ ‑ ‑ 

HIS HONOUR:   Do you want to just add that to that shopping list of things that you and Mr Johnson will bring to the Court’s attention?

MR GUO:   Yes.

HIS HONOUR:   Could you do that by the end of the week?  Is that possible?

MR GUO:   We will get it done, your Honour.

HIS HONOUR:   Thank you.

MR GUO:   Regardless, though, the primary way in which we would put our case, as your Honour appreciates, does not require that construction to be given to PIC 4020.

HIS HONOUR:   I understand.

MR GUO:   So, the point that I make, that we have made in writing, and which is not responded to, with respect, about the need to consider the policy behind Part 3, and reading the scheme as a whole – these are all, as your Honour knows, of course, trite propositions of statutory construction.  None of those things are done or attempted to be reconciled by the Minister in coming to and advancing the construction that he puts forward to your Honour.  And in a situation where there are, at least on the plain text of the words, competing constructions equally available, one must necessarily look at all these other notions of context and purpose.  If one does that, one cannot escape Part 3, and to read PIC 4020 in the absolute way the Minister advances is to offend that principle of statutory construction, which requires consideration of context and purpose.

There was an exchange between my learned friend and your Honour about whether the submission, the mere submission of a letter by an agent without the principal having first specifically authorised that letter, which is said to follow from the construction that the plaintiff is advancing, would offend general principles of agency and principal.  In my submission, it could not be read and understood to have such an explosive effect on that doctrine.  All must necessarily depend on the content of the letter, and cannot roll up some general proposition and bring in a case like this with it, because this case is perhaps unique from the general situation, from general expectation where one might expect a principal to specifically authorise the sending of the particular letter.  The difference here, of course, is that something was done beyond what was contemplated by the plaintiffs.

That takes me to the next point about contemplation.  The submission from my learned friend to your Honour was – and he tried to do this with reference to what the majority said in Singh, in this case, the submission made by the Minister is that there was contemplation of the engagement of the agent – well, of course there was, it is evidenced in the contract.  But it could not be said, and it certainly was not put in the evidence, that there was contemplation that the agent would step beyond what could lawfully be done.

We have referred in our written submissions, your Honour, to the various provisions of the code of conduct for agents.  Your Honour is well familiar with them, they are also exhibited to the Tan affidavit, and we have cited the specific provisions which have particular force, and which made it reasonable for Mr Rong to depend on the agent in his quest to obtain a visa.  All those provisions are entirely consistent with an expectation that the agent would act only within lawful means, and do only those things that her instructions either expressly or implicitly contemplated, and on no view could it be said that even implicitly there was some authority given – or “contemplation”, to use my learned friend’s language – contemplation that the agent would then go on to, again, using my learned friend’s language, exaggerate certain matters in a misconceived quest to help her client.  That could not ever possibly be said, in my respectful submission, to be within contemplation.

That is one point about contemplation.  The other point about contemplation, and my learned friend’s attempt to roll that up and draw that from Singh is that, as your Honour will recall, the reason why, or a reason why we submit their Honours Justice Griffiths and Moshinsky departed from Justice Bromberg in the outcome was a different view taken to how the case – or whether the case could be amended on appeal to run a ground about fraud as a jurisdictional fact.  This is something we have referred to in our written submissions.

So, even if one could have some sort of argument about what was contemplated or not, and what the delegate here could find as a fact reasonably open to her to make, that is a very different question when your Honour considers what is before you in ground 2, which is, as your Honour recognises, we are asking your Honour to go beyond what the delegate actually found as facts and consider for yourself, because it is a jurisdictional fact, whether there was some kind of fraud in the public law sense.

Finally, on the Browne v Dunn point, what my learned friend seeks to do ‑ ‑ ‑ 

HIS HONOUR:   Jones v Dunkel.

MR GUO:   I am sorry, Jones v Dunkel point – although it is a Browne v Dunn point as well ‑ ‑ ‑ 

HIS HONOUR:   As well, yes.

MR GUO:   ‑ ‑ ‑ as I will seek to explain.  What my learned friend seeks to do – and this is revealed in his closing submissions, he seeks to extrapolate from a very narrow line of cross‑examination entirely about, and nothing more than, what happened vis-à-vis Dan Murphy’s, and seeks to go from that and ask your Honour to infer more generally that there was some kind of broader giving of instructions, and this is why I slipped and said Browne v Dunn.  In my submission, the inference that my learned friend urges your Honour to make needs to be – the questioning needed to be much more specific than, well, you did or did not say something about Dan Murphy’s, therefore there must have been some general discussion you had and therefore, in some amorphous, unidentified way, you were party to or complicit in or at least had knowledge of the provision of the false information.

The nature of the putting by my learned friend was nowhere near enough to support that kind of submission, with respect.  And even if your Honour is not with me on that, where would it take things?  Because, if your Honour goes to the delegate’s reasoning, and your Honour will find the delegate’s decision in the Tan affidavit at RT‑5, page 94 ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR GUO:   It is not entirely clear which parts of the list of duties the delegate relies on for application of PIC 4020, but it is clear that, at least in some generic or abstracted way, it was.  If your Honour goes to page 95 – I am using the bold pagination at the bottom – does your Honour see, three paragraphs from the bottom?

HIS HONOUR:   “On 12 July”?

MR GUO:   Yes, and then in the next line there is reference to the:

‘exhaustive list’ of duties –

Then, over two pages, on page 97, where the delegate gets into his reasoning, halfway down the page there is a paragraph with one sentence:

The document surrounding the applicants management duties contained false and misleading information.

And then the further discussion that your Honour sees – the point is, there is no specific reference in this letter, no specific reliance by the delegate, on any particular duty or set of duties in the list of duties.  So, where does that take us?  All that the plaintiff can do is say, well, because this is what the delegate said, there was reliance on the list of duties, I do not know which specific things you are saying are false or not false that were material to your decision, but I can say, in a general way, I had no part in the provision of this information, and that is what Mr Rong did say, on oath, and he was not moved from that in the box today.

So, even if it was true – which we certainly would resist your Honour making a finding in that respect – but even if it was true that there was some giving of instructions in relation to Dan Murphy’s, it leads to a so what in terms of what was material to the delegate’s reasoning process.  So, it is not enough for the Minister to make that point and say, therefore, PIC 4020 was correctly applied here.

If your Honour pleases.

HIS HONOUR:   Can I ask you and Mr Johnson one question I meant to ask at the start, and that is, do you both accept that this matter is properly in the original jurisdiction of the Court and could not have been remitted?

MR GUO:   This is the debate that arises from Gajjar, and if I may speak frankly about ‑ ‑ ‑ 

HIS HONOUR:   Which I had – I published the set of reasons ‑ ‑ ‑ 

MR GUO:   In Nguyen?

HIS HONOUR:   Yes.

MR GUO:   Yes.  And as I read Nguyen, I did not understand your Honour to say it could – it is invariably the case that it can never be distinguished.  Your Honour might tell me otherwise in your reasons, but ‑ ‑ ‑ 

HIS HONOUR:   In any event, no one is pressing the points.

MR GUO:   That it should have been filed elsewhere?

HIS HONOUR:   It is too late now to remit it anyway.

MR GUO:   Because your Honour has heard the evidence?

HIS HONOUR:   Yes, exactly.

MR GUO:   Yes, that is right.  Yes.  All right.

HIS HONOUR:   All right.  It just makes it a bit easier for me, that is all.

MR GUO:   If your Honour pleases.

HIS HONOUR:   Thank you very much.  All right, then.  I will reserve my judgment in this matter.  I thank Ms Chen, the interpreter, for her attendance today.  I thank both of counsel and their instructing solicitors for all the assistance they have given the Court.

Adjourn the Court, please.

AT 1.22 PM THE MATTER WAS ADJOURNED