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

[2022] HCATrans 76

[2022] HCATrans 076

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 WEDNESDAY, 20 APRIL 2022, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances.

MR M.W. GUO appears on behalf of the plaintiffs.  (instructed by Lincolns Lawyers)

MR G.J. JOHNSON appears on behalf of the defendant.  (instructed by HWL Ebsworth)

HIS HONOUR:   Mr Guo, can I confirm with you what I have, and you can let me know if I am missing anything.  I have your application, I have an affidavit of Ms Tan which was affirmed on 20 December last year, I have a notice of appearance, I have the defendant’s response and I have your reply.  Am I missing anything at the moment?

MR GUO:   No, your Honour.

HIS HONOUR:   All right, thank you.  Mr Johnson, can I ask you, is there anything in the affidavit to which you object?

MR JOHNSON:   No, your Honour.

HIS HONOUR:   Do you accept, Mr Johnson, for the purposes of this proceeding, that the information that Ms Hyland gave the Minister was given – and I will put this in two parts – firstly, without instruction from the plaintiffs, or do you have any basis for thinking it was done as suggested without instructions?

MR JOHNSON:   Yes, that is the assertion made.  I note there is only evidence from Ms Tan about that.  This is one of the issues the Minister has raised about the evidence.

HIS HONOUR:   Leave aside sufficiency of evidence, I am really saying – I suppose what you are saying is on that part of the matter your position is the evidence is insufficient.

MR JOHNSON:   Yes.

HIS HONOUR:   All right.  The second part of the inquiry is, do you accept that what Ms Hyland said to the Minister was made without knowledge on the part of the plaintiffs of its falsity?  Or is that again another insufficient evidence issue?

MR JOHNSON:   Yes.  The answer is, again, it is an insufficiency of evidence issue.  It ties to ‑ ‑ ‑

HIS HONOUR:   All right, I understand that.  Mr Guo, can I indicate to you that I propose to determine this matter on the papers, subject to two matters.  The first is obviously if I feel there is a need for an oral hearing because of something I do not understand or that needs clarification, then you can be assured that I will convene such a hearing.  Secondly, it is subject to giving you a further opportunity to put on any further material upon which you would seek to rely and that would include any further affidavit material that you want to put on, having regard to what you have heard from Mr Johnson this morning, and any further written submissions that you would like to put on.  Mr Johnson, you would have an opportunity to respond.  Again, if you want to put on any affidavit evidence upon which you rely, I would give you leave to do so, any further written submissions and then, Mr Guo, you would have an opportunity to reply.  Then, I will see what I can do about hearing it on the papers. 

I understand the issues.  As some of you may know, I have another one before me as well which raises the same remittal issue.  So that the outcome will be either that I decide to remit, because I accept your submissions, Mr Guo, or if I do not decide to remit, I will determine the matter substantively and in the usual fashion, you will either have your relief, Mr Guo, or you will not.

So, Mr Guo, can I ask you, would you propose to put on any additional material?  You do not have to commit to an answer today.

MR GUO:   We certainly would be grateful for the opportunity.

HIS HONOUR:   All right.  You give me a date.

MR GUO:   It is somewhat arbitrary but say a month from now.

HIS HONOUR:   All right.  Obviously, if that – and I say this to both of you – if whatever dates we fix today become impossible, inconvenient or what have you, please get in contact and we will see what we can do.  That would take us to 20 May.  Mr Johnson, how much time would you like?

MR JOHNSON:   I propose the same period, your Honour, for any response.

HIS HONOUR:   All right, that would take you, I think, to about 17 June.  For reply, Mr Guo?

MR GUO:   Two weeks would be more than sufficient, your Honour.

HIS HONOUR:   That brings us to 1 July.  All right, what I will order today is:

1.The plaintiffs file and serve, on or before 20 May 2022, any further affidavits upon which they would seek to rely and any further written submissions in support of their application.

2.On or before 17 June 2022, the defendant file and serve any affidavits upon which the Minister seeks to rely and any further written submissions in support of the defence.

3.On or before 1 July 2022, the plaintiffs file and serve any written submissions in reply upon which they seek to rely.

Then I would simply adjourn today’s matter.  I will not make any order for costs today.  You can assume they will get rolled up.  I do not propose to impose any word or page limit on the submissions.  Given that I am going to hear the matter on the papers, I want to give you both extensive capacity to put the cases that you wish to put.  I have already read and understand how each of you put your case or cases, but this is one more opportunity to try and persuade, as it were.

Anything more from you, Mr Guo?

MR GUO:   No, your Honour.  We had apprehended that your Honour might raise the Gajjar remittal issue, and I am not quite sure how it was raised in Nguyen, but your Honour ‑ ‑ ‑

HIS HONOUR:   Because it is not an easy issue I think the safer course of action is just to roll it up with the final hearing, as it were.

MR GUO:   Yes, and the way we put Gajjar, as your Honour has seen, is we only seek to distinguish it.  We do not seek to argue the ‑ ‑ ‑

HIS HONOUR:   Correct, and that is a point of difference to the other matter in my docket.  Yes, I understand that.

MR GUO:   Yes, if your Honour pleases.

HIS HONOUR:   If I decide that it is distinguishable then it will be a very short judgment in which you will be remitted down.

MR GUO:   Yes.

HIS HONOUR:   I would not go on and then deal with your other substantive grounds.

MR GUO:   Yes, if your Honour pleases.

HIS HONOUR:   Thank you for that.  Mr Johnson, anything else from you?

MR JOHNSON:   No, nothing further, your Honour, simply to note that in light of further evidence that may be forthcoming, of course the Minister will consider that and consider any response to that.  The only additional issue may be the prospect of testing the initial evidence, particularly if it comes directly from the plaintiff.  We will consider that at the appropriate time depending upon what the evidence is, but whilst I do not enjoy the prospect of cross‑examination in this Court, of course in a matter like the present where factual issues may be in contest, it is something that may need to be considered at the appropriate time.

HIS HONOUR:   All right, I understand that.  That is fine.  You will make your decision when the time comes.  If we need to have a hearing of that nature then we will have a hearing of that nature.

Can I thank you both for your attendance today.  Please adjourn the Court.

AT 10.09 AM THE MATTER WAS ADJOURNED