Rong & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCATrans 189 (2 November 2022)

Last Updated: 2 November 2022

[2022] HCATrans 189

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, 2 NOVEMBER 2022, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR: In accordance with the Court’s protocol for remote hearings, I will announce the appearances of the parties.

MR M.W. GUO appears for the plaintiffs. (instructed by Lincolns Lawyers)

MR G.J. JOHNSON appears for the defendant. (instructed by HWL Ebsworth Lawyers)

HIS HONOUR: Gentlemen, thank you for your attendance here today. The reason why I wanted to bring this in for a mention is that, contrary to what you might have thought, this Court does not have the same resourcing as the Federal Court of Australia does when it comes to the cross‑examination of remote witnesses. So, if we are going to have cross‑examination, there will be some housekeeping that will need to be dealt with today, so that it can be dealt with sufficiently for both of you. Really, the first question that I have for you, Mr Johnson, I suppose, is, do you continue to want to cross‑examine Mr Rong?

MR JOHNSON: Yes, your Honour. It is anticipated that it would not be a long cross‑examination, but a cross‑examination nonetheless.

HIS HONOUR: Can I ask you, is it to test the factual proposition that Mr Guo’s client wishes to rely upon, namely, a lack of knowledge of falsity?

MR JOHNSON: Yes, that is among the issues, and there are other parts of the evidence which should also be tested in order that your Honour can make some final factual determinations which will be relevant to ground 2, but that is the nub of it, yes.

HIS HONOUR: It may also go, I assume, to whether there was evidence before the Minister that he caused the information to be provided. Is that something that – I do not want you to give away too much of what you want to do, but if you feel comfortable in saying so, then do so.

MR JOHNSON: Yes. My preliminary view is that that might ultimately be more a legal argument than a factual one.

HIS HONOUR: Yes.

MR JOHNSON: But one never knows, ultimately, how these things might play out. But that is . . . . . a possibility.

HIS HONOUR: So, the next question I was going to have for you is this: practically speaking, I suspect, if you are going to put any documents to Mr Rong, then the documents will need to be sent to him in China first. They will, of course, need to be, if necessary, translated, with the agreement of Mr Guo as to the accuracy of the translation. So, that is something that you will have to do. There will be no real means of putting documents to Mr Rong on the spot, electronically.

MR JOHNSON: Yes.

HIS HONOUR: What I have in mind is, if we are to proceed along these lines, and I will have to hear from Mr Guo, I will have to borrow a courtroom from the Federal Court and we will use their Teams system, which then talks to the relevant transcribers, and that would mean that Mr Rong could appear using Microsoft Teams – and I hope that is possible in China. I am told he could do it at home on a laptop, if that is what he needed to do. Alternatively, Mr Guo might want to park him in a conference room in a lawyer’s office somewhere, that is a matter for him, but the main thing is that he is in a room with good internet connection, has access to Microsoft Teams, and has a folder of documents, which have been translated, which you wish to put to him.

The other thing is that you will also need to organise a NAATI interpreter. We do not, unlike the Federal Court, we do not do that, and that is something, again, you will have to do with Mr Guo’s cooperation, Mr Guo satisfied that you have selected someone who is the right person. Then what I had in mind was we would have the interpreter in the courtroom with us, who could interpret using the courtroom’s audio facilities as they link into Microsoft Teams, and we would proceed on that basis.

I was not proposing to commit more than half a day as maximum on this matter, so you might have an hour to cross‑examine. I cannot imagine you going more than that.

MR JOHNSON: No, no.

HIS HONOUR: I have read your relevant papers, so oral argument would be limited – indeed, it probably should be limited to whatever it transcribes or arises out of the course of cross‑examination.

MR JOHNSON: Yes. Yes, those kinds of ‑ ‑ ‑

HIS HONOUR: I am familiar with the issue, I am familiar with how each case is put. I am familiar with the authorities, I am aware of Justice Bromberg’s different view about the operation of PIC 4020, so I am up to speed on all of that.

MR JOHNSON: Yes.

HIS HONOUR: Is that something you can organise, both a folder and an interpreter?

MR JOHNSON: Yes, your Honour. That will be done.

HIS HONOUR: I am not going to – Mr Johnson, Mr Guo, I am not going to make orders for this to occur. I know you both, I know you are both responsible counsel, and you will agreeably work it out, and it is only if you cannot work it out that you should contact the Court and I will arrange for another mention, but I am quite confident. You are both very senior, experienced people, and you will work this out as best as you can. I might hear now from Mr Guo about whether he would like to add anything at this stage. Mr Guo.

MR GUO: If your Honour pleases. I do not have anything to add, save for that my instructor is trying to confirm, as we speak, whether Microsoft Teams is in fact accessible in China. Perhaps if we operate on the assumption that it is, and if that turns out to be wrong we could let the Court know.

HIS HONOUR: Well, I was going to suggest, if Teams is not available, practically speaking, it will just have to be by telephone. I know that is not perfect, but – particularly in relation to witnesses who need questions translated – it is really the content of what they say that really matters, rather than us seeing them on a television screen. But that – Mr Johnson, you will just have to live with that.

MR JOHNSON: Yes. And in the circumstances, your Honour, there is little to be done. We will do our best, and we will press on in that way.

HIS HONOUR: Mr Guo, is it your intention that Mr Rong do this from home, or do it from a lawyer’s office, or what, at this stage? You may not have thought about this, I might add.

MR GUO: No, we have not. But we will speak to Mr Johnson and agree to what course can be accommodated.

HIS HONOUR: Speaking for myself, I would prefer it if he was in some form of office environment, a conference room of some kind, just to add a degree of formality to the process, which I think is better for both sides.

MR GUO: Yes, your Honour.

HIS HONOUR: The other thing is, I was thinking that I would list this for half a day sometime on the week commencing 30 January 2022, which should give you enough time to organise things. Is there a day in that week which would suit you both? Mr Johnson.

MR JOHNSON: Speaking for myself, your Honour, during that week, any of Tuesday 31 or Wednesday 1 February or Friday 3 February are available.

HIS HONOUR: Mr Guo, how are you placed?

MR GUO: I can do any of those days, your Honour.

HIS HONOUR: All right. Well, you should assume I will list it for a half‑day on one of those three days. Probably the 31st, a nice start to the year for us all, and I would be grateful if, Mr Johnson, your instructor, with Mr Guo’s instructor, could liaise with the Court on the practical side of things, namely confirming you have got an interpreter, confirming that Mr Rong will be available, confirming that the technology is going to work. You should assume it will be listed to be in one of the courtrooms on level 8 of the Sir Owen Dixon Commonwealth Law Courts here in Melbourne. Mr Johnson, I know you are not a local, but my preference is that you appear personally.

MR JOHNSON: Yes. That should not be a difficulty, your Honour, and arrangements will be made for that to occur.

HIS HONOUR: All right. Are there any other matters that either of you need to raise with me in order to make sure this works well?

MR GUO: Your Honour, I am just instructed to raise one other matter as it continues remotely.

HIS HONOUR: Yes.

MR GUO: That is, as seems to be a matter of notoriety, the COVID‑zero situation in China is quite fluid, and so that may – I cannot take it any further, of course – it may present an impediment in terms of taking Mr Rong to an office, but if that is advised to be the case, we will let Mr Johnson and your Honour know.

HIS HONOUR: Mr Guo, I perfectly well understand that. Indeed, it may be that all of us may be in a different position next January, I just do not know any more. But I am sure, with the goodwill that both of you will extend to each other, you will accommodate that. And, again, of course, if one of those dates ends up being inconvenient for some reason to Mr Rong, well, then, we will just have to pick another date. But we will get there. We will get there.

All right. Anything else, Mr Johnson?

MR JOHNSON: Nothing further, thank you, your Honour.

HIS HONOUR: Mr Guo?

MR GUO: No, your Honour.

HIS HONOUR: All right. Can I thank you both once again for your attendance here in virtual Court, and the Court will be in touch with you about which of those dates will be the date in which we will list this. In the meantime, I wish you both the best of luck in getting this organised, and if there are any issues, you just let the Court know and we will list you for a mention.

MR JOHNSON: If the Court pleases.

HIS HONOUR: I will adjourn the Court now, please.

AT 10.11 AM THE MATTER WAS ADJOURNED