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

The plaintiffs sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse their application for a Business Skills (Residence) (Class DF) State/Territory Sponsored Business Owner (Subclass 892) visa. The plaintiffs also sought an extension of time to make their application. The matter was heard in the High Court of Australia's original jurisdiction by a single Justice.

The legal issues before the Court were whether the decision to refuse the visa was vitiated by a fraud perpetrated by the plaintiffs' migration agent, and whether the plaintiffs had satisfied Public Interest Criteria 4020 (PIC 4020). Specifically, the Court had to determine if the first plaintiff, Mr Rong, had "given, or caused to be given" false or misleading information to the Department of Home Affairs, as required by PIC 4020(1), given that a letter from his migration agent contained false statements about his duties in his business. Mr Rong contended he had no knowledge of these false statements or the letter's dispatch.

The Court reasoned that while the extension of time was not opposed, the judicial review grounds failed. Regarding PIC 4020(1), the Court found that the objective evidence, including Mr Rong's statutory declaration and the extensive supporting documentation provided in response to a departmental request, indicated that Mr Rong had participated in the preparation of the July 2018 letter and provided instructions to his migration agent. The Court inferred that Mr Rong knew the documents he supplied were to be attached to the letter and that the letter would address his management of the business. Furthermore, the inclusion of a specific, idiosyncratic duty in the letter, which Mr Rong later admitted to performing, contradicted his claim of no prior discussion of his duties with his agent. The Court applied the principle that a visa applicant can "cause to be given" false information even without direct knowledge of its falsity, provided they are content to have an intermediary act on their behalf and provide documents, as established in cases like *Singh v Minister for Immigration and Border Protection*. The Court rejected the argument that the failure of the defendant to call the migration agent as a witness could support an inference in favour of the plaintiffs.

The Court dismissed the proceeding and ordered that the plaintiffs pay the defendant's costs. The Court also extended the period within which the plaintiffs' application could be made and enlarged the time fixed by the High Court Rules for the purposes of the plaintiffs' application.