AXY17 v Minister for Immigration
[2017] FCCA 2006
•7 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXY17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2006 |
| Catchwords: MIGRATION – Extension of time application made pursuant to section 477(2) – extension of time in relation to the application to review the Delegate’s decision and the Tribunal’s decision – binding and significant jurisprudence preventing the Tribunal from extending time for applications to review – no authorities offered by the Applicant’s lawyer to support his contention that the Tribunal has this power – no evidence to support an extension of time being granted to the application for review filed in this Court – responsibility on legal representative properly “to consider” the reasonable prospects of success of an Application – application to extend time refused – personal costs order made against Applicant’s solicitor – consideration of operation of Code of Conduct for migration agents. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J(1)(a), 5J(4)(b), 36(1), 36(2A), 36(2)(aa), 48B, 314(2), 412, 412(1)(b), 477(1) – (3), 486E, 486E(1)(b)(i), 486F(1)(a) & (c) |
| Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Rana v Minister for Immigration and Border Protection [2014] FCA 1233 Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 |
| Applicant: | AXY17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 13 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Canberra |
| Delivered on: | 7 September 2017 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Hugh Ford and Associates |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application, filed 6th March 2017, be dismissed.
Pursuant to ss.486E and 486F of the Migration Act 1958, the Applicant’s solicitor pay the First Respondent’s costs in the sum of $3606.00.
Pursuant to s.486F(1)(c) of the Migration Act 1958, within 14 days of the date of these Orders, that is by close of business on 19 September 2017, the Applicant’s solicitor is to repay to the Applicant any costs she has already paid to her solicitor in relation to the current migration litigation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 13 of 2017
| AXY17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
The Applicant is a citizen of Ghana. She is aged 45 years. She first came to Australia in October 2009 as the holder of a domestic worker – diplomatic or consular (sub-class TG-426) visa.
In July 2011 she applied for a Partner Combined visa. This application was refused on 19th May 2014. It is not immediately clear why it took so long (between July 2011 and May 2014) to determine that visa application. However, such matters are not germane to the issues currently before this Court.
On 2nd April 2015, the Applicant applied for a protection visa. She claimed to fear harm (including being killed) from her deceased Husband’s family if she returned to Ghana.
On 10th November 2016, a Delegate of the Minister refused this application. Details of that decision are set out later in these reasons.
On 23rd January 2017, the Administrative Appeals Tribunal (“the Tribunal”) determined that, because of the late filing of the Application to Review the Delegate’s decision, it did not have jurisdiction to hear it. The relevant detail of the Tribunal’s decision is set out later in these reasons.
Because:
(a)s.477(1) and (3) of the Migration Act 1958 (“the Act”) require that any relevant Application to this Court must be brought within 35 days of the “date of the migration decision”;
(b)the date of the “migration decision” was relevantly 23rd January 2017 (although the First Respondent submits that the relevant date was 25th January 2017 pursuant to s.477(3)(d)), any Application to review the Tribunal’s decision ought to have been made on or before 1st March 2017; and
(c)the Application to Review was filed only on 6th March 2017,
the immediate Application before the Court is for an extension of time. That Application is resisted by the First Respondent (“the Minister”).
Pursuant to s.477(2), the Court may extend time if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In the light of the outline just given, there are three issues for the Court to determine arising out of the current Application, which was filed on 6th March 2017:
(a) the Applicant seeks to have this Court (i) grant an extension of time, pursuant to s.477(2) of the Act in relation to the Application to review the Tribunal’s decision, and, assuming that an extension of time is granted (ii) then to review, and ultimately to quash, the decision of the Tribunal, dated 23rd January 2017; and
(b) in addition to seeking to have the Application to review dismissed, the First Respondent’s submission/Application also seeks, in effect, a personal costs Order against the Applicant’s solicitor, pursuant to s.486F(1)(a) and (c) of the Migration Act 1958 (“the Act”).
For the reasons that follow, the Application to extend time must be dismissed with costs as per the Schedule to this Court’s Rules in the sum of $3606.00. For the same reasons, the Applicant’s lawyer must pay, pursuant to s.486F(1)(a) of the Act, the sum of $1800.00 towards the Applicant’s costs, being approximately one half of the costs awarded to the First Respondent. It is a matter for the Applicant whether she takes any other action, for example against others who advised, who failed to do so, and or who failed to take relevant action in time.
Background – The Delegate’s Decision
On 10th November 2016 the Delegate made a decision that the Applicant is not a person in relation to whom Australia has protection obligations under ss. 36(1) and (2) of the Act. Briefly stated, the reasons for this were as follows: first, the Applicant claims that she is a national of Ghana; the Delegate found the Applicant to be so. The Delegate next found that based on the evidence before her, the Applicant does not have a right to enter and reside in a country other than her country of citizenship. Thirdly, the Delegate made the following findings of fact: (see CB at 147-156).
a)The Applicant is a member of the Ashanti tribe who married Frank Ofori of the Kwahu tribe under Ashanti customary law on 27 January 1990. They have four children, all currently living in Acra. Three of them live with the Applicant’s mother, while one lives with her brother.
b)The Applicant contended, and the Delegate accepted, that the Applicant’s husband repeatedly physically abused her. While they were married, she converted to Christianity: when he found out, he was angry that she had not told him about this. He believed in a community god called Tigarre.
c)The couple divorced in 2008, under Ghanaian civil law. The Applicant’s husband did not accept the divorce.
d)The Applicant formed a relationship with a national from Sierra Leone who was also an Australian citizen. This relationship ended after the person remained in Sierra Leone due to work commitments.
e)The Applicant’s former husband (Mr Ofori) died on 15th August 2012. His family blamed the Applicant for his death. The husband’s family rejected the participation of the Applicant’s family in the funeral preparation and funeral rights. The deceased’s family members told the Applicant’s mother that she should return home to perform customary widow’s rights.
f)The Applicant returned to Ghana for one month in 2013 to make arrangements for the care of her children. While there, one evening walking alone on her way to church, she was set upon by four men who tried to pull her into a car. Bystanders rescued her, and she required hospital treatment. She reported the attack to the police, who asked her to attend the police station again the following day. She did not do so.
The Delegate made the following findings for the purposes of s. 5J(1)(a) of the Act:
a) That the Applicant fears persecution because she is a member of the particular social group “widows” in Ghana.
b) Being a member of this particular social group is the reason for fearing persecution.
c) The Applicant fears persecution because of the risk of serious harm (as required under sub-section 5J(4)(b) of the Act).
d) The persecution feared by the Applicant involves “systematic and discriminatory conduct”.
The next part of the decision dealt with the question posed by the Delegate, namely, “is the fear of persecution well-founded?” In this section of the Delegate’s reasons there was focus upon women, including widows, in Ghana. Following this assessment the Delegate concluded that she was not satisfied that there is a real chance of persecution for one or more of the reasons mentioned in sub-section 5J(1)(a) of the Act. Because of this finding, the Delegate further concluded that the Applicant is not a refugee, as defined in s.5H, and the criterion in s. 36(2)(a) of the Act.
For the purposes of the complementary protection criterion in s.36(2)(aa) the Delegate found that the harm claimed by the Applicant is significant within the meaning of s.36(2A) but that the “real risk of significant harm” was not made out and therefore there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ghana, there is a real risk the Applicant will suffer significant harm as required by s. 36(2)(aa). Accordingly, the Delegate determined that the Applicant is not a person to whom Australia has protection obligations as prescribed by the Act.
On 9th December 2016, the Applicant filed her Application to review the Delegate’s decision online.[1]
[1] See CB 158 – 160.
On 3rd January 2017 the Registrar of the Tribunal wrote to the Applicant in relation to her application to review the Delegate’s decision. The Registrar of the Tribunal expressed a view that the Application was not valid because it was “not lodged within the relevant time limit.” The Registrar explained its then view in the following terms:
The time limit is 28 days from the day on which you are taken to have been notified of the primary decision. The primary decision as e-mailed to your authorised recipient on 10 November 2016 and, on the basis that 10 November 2016 was the date on which you are taken to have been notified, the last day for lodging the application for review was 8 December 2016. As the application was not received until 9 December 2016, it appears to be out of time. However, this is a matter which must be determined by a Member.
The Applicant was then invited to make any comments on whether a valid Application had been made and to do so in writing by 17th January 2017. She was further advised that the Application would then be referred to a Member for decision.
On 13th January 2017 the Applicant’s Migration Agent, Ms Ramos, wrote to the Registrar of the Tribunal (CB: 185-186). In that letter, Ms Ramos outlined the information technology failure that her office had experienced in December 2016 which led to the Applicant’s application not being filed within time. In the course of that letter, Ms Ramos said:
Personally I felt bad with the review application [the Applicant] a widowed woman from Ghana, her case needs to have the opportunity to be heard. In my professional life as a Migration Agent this is my first time that I had failed one of my clients. Unfortunately, I didn’t realise that this error had happened, until the 9th of December.
I beg to the Hon Tribunal Member in charge, to allow this application to proceed for the benefit of [the Applicant]. I accept any sanction imposed on my registration, but please do not penalise [the Applicant] denying the opportunity for her case to be reviewed at the AAT.
The Tribunal’s decision
Because of its brevity, it is appropriate to set out the Tribunal’s decision in full (CB 203):
STATEMENT OF DECISIONS AND REASONS
APPLICATION FOR REVIEW
1) An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 10 November 2016, to refuse to grant a protection visa under s. 65 of The Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 9 December 2016. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
2) Pursuant to s. 412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.
3) The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 10 November 2016 and dispatched via email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4) On 3 January 2017, the Tribunal wrote to the applicant through her migration agent indicating that in the view of the Tribunal, the application is not a valid application as it was not lodged within the relevant time period. The applicant’s migration agent responded on 13 January 2-17 indicating that documents she attempted to lodge on 7 December 2016 were not done so because of IT failures in her IT system. The agent included a Tax Invoice from CompeteriT dated 23 December 2016. The Tribunal has had regard to the information provided and notes that the IT work undertaken two weeks after the problems were identified.
5) The Tribunal finds that in accordance with the s.494C of the Act, the applicant is taken to have been notified of the decision on 10 November 2016. Therefore the prescribed period within which the review application could be made ended on 8 December 2016. As the application for review was not received by the Tribunal until 9 December 2016 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction.
DECISION
6) The Tribunal does not have jurisdiction in this matter.
Application to review: evidence
In support of the Application to this Court, the Applicant’s Migration Agent, Ms Ramos, filed an affidavit on 12th July 2017. Again because it was relied upon so heavily by the Applicant in the extension of time Application (noting also that Ms Ramos was available for cross-examination, but was not required) it is as well to set out her affidavit in full with the exception of its formal parts and the last paragraph (para. 18):
1) That on the 16th March 2015, the visa applicant who is known as [the Applicant] came to my office for professional advice. We agreed to proceed with an application for Protection Visa subclass 866.
2) [The Applicant] had applied for a Protection Visa sub class 866 and her visa application had been refused on 10th November 2016.
3) I advised [the Applicant] to seek the review of the decision to refuse her visa application. Also I did advised her that the time for lodgement of the application for review will be 28 days from the day 10 November 2016; we agreed to lodge the application close to the 28 day in order to have more time to prepare the further documentation.
4) On late evening 7th December 2016 I filled the form for an Application for Review at the AAT Refugee section, on line and when the details of the application had been entered on the system, I then pressed the button which is known as 'enter' and the system indicated that the application had been lodged. In my opinion, the application for the review of the decision had been lodged electronically within the prescribed period of time.
5) Unfortunately I did not realise that our system failed and all work done online were not uploaded, on that day we were unaware about the failure until a client called us on the 9th December telling that she had not received some documents that she expected on the 7th.
6) In relation to the acknowledgement letter from the A A Tribunal, sometimes the Tribunal takes more than two ds [sic: “days”] to send the acknowledge letter to the applicant/advisor. When I did not receive it on the 8 of December, I though sometimes it takes a couple of days more.
7) After we did received a phone call from our client telling that documents were not lodged on the date 9th December 2016, I started to check all work sent on that date and we realise that [the Applicant’s] application for review at the AAT was not uploaded online, so immediately on the 9th I filled the application online again and lodged it.
8) Then our system was on and off until we call the IT technician, he confirms that our system was having some technical problems among the computers, scanner/print and the internet; that was why sometimes the system works sending documents and sometimes did not. We were suggested to replace some devices.
9) Our technician works based on his schedule, first he did order new equipment, the new machine came in the office around after middle of December and then the Technician came in to our office to install and works, so the job was done by 23 December 2016, according to his schedule of activities.
10) On 12th December 2016, we received a letter from the AAT- acknowledge letter and also a little explanation that “Please note the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.”
11) On the 3rd of January 2017, we received a letter from the AAT- Invitation to Comment on Validity of application for review – [the Applicant].
12) On 13th January 2017, I did response to the invitation to comment on validity of application for review – [the Applicant]; also I did enclose evidence such as the Tax Invoice from the technician and evidence payment for work done in our office.
13) I did write a letter to the Hon. Tribunal Member in charge, to allow this application to proceed for the benefit of [the Applicant]. Allowing [the Applicant] the opportunity for her case to be reviewed at the AAT.
14) Personally I felt bad with the review application of [the Applicant] a widowed woman from Ghana, her case needs to have the opportunity to be heard. In my professional life as a Migration Agent this is my first time that I failed one of my clients. Unfortunately, I didn't realise that this error had happened, until the 9th of December.
15) On 25th January 2017, we received a letter from the AAT -Notification of Decision – [the Applicant] – “the decision was the Tribunal does not have jurisdiction in this matter.”
The Hon. Tribunal Member did a summary of the case including the following statement “The agent included a Tax Invoice from CompeterIT dated 23 December 2016. Tribunal has had regard to the information provided and notes that the IT work undertaken two weeks after the problems were identified”. I did call to the Tribunal, completely devastated, I spoke with Robert Cook seeking for advice and he did give some advice for further procedure including court application.
16) That is the truth how the events were occurred and the time that the technician took to complete his work in our office, which was exactly from the 12th December to 23rd December 2016, from the day when he did come into the office to test the equipment, then the waiting period from the Office Work to deliver the Brother Machine into the office and other devices that were necessary to complete that task.
17) On January 2017 I was sick from my spine and waiting for a back surgery at my spine, the hospital admitted me on 4th of February 2017 I was in hospital for 7 days, then I wasn't able to work for what I did ask to my assistance to be in contact with referred Migration Lawyer to assist in the case of [the Applicant]. Unfortunately a Migration Lawyer said yes to represent [the Applicant] but then a couple of week later he said that he will not take the case, then I was in contact with a second Migration Lawyer who still that he will represent to [the Applicant] but he took so much time and he did not lodge the application to the Court.
Submissions for the Applicant
The Applicant’s solicitor filed an affidavit on 6th March 2017. In addition to summarising the [hearsay] facts that were later deposed to in more detail in the affidavit of Ms Ramos to which I have earlier referred, the solicitor affirmed that another [named] solicitor was requested to assist the Applicant’s migration agent and to file the Application for Review. The utility and or significance of this affidavit was not immediately apparent. However, it is important to note the risk to the solicitor providing an affidavit in the current form. By this I mean that because of the matters he set out he risked becoming a witness in his client’s case. This was not raised by the Minister but for my part it was and remains a significant concern. It showed poor judgment to “enter the fray” and seek to provide factual details that could affect the contest before the Court. No consideration seems to have been taken of such a risk. However, precisely because no point was taken by the Minister in this regard I say no more about it other than to express my concern.
On his own volition, which is to say, without any Court Order or direction, the Applicant’s solicitor filed written submissions on 31st March 2017. Those submissions were as follows:
1) The applicant applied for a visa. The application was refused. The applicant had a right of review by the Administrative Appeals Tribunal provided the application was made within the prescribed period. The applicant did not however get her application to the Tribunal for the review of the decision within time. The applicant cannot now seek the review of that decision by the Tribunal because the applicant is out of time.
2) The Tribunal has made a decision that the applicant is out of time in which to seek the review of that decision. It is this decision, that is, the decision of the Tribunal that the application is out of time which is now the subject of an application to the Federal Circuit Court. The Tribunal has decided that the application is out of time. It is that decision which is now the subject of review by the Federal Circuit Court.
3) The applicant applied to the Federal Circuit Court for the review of the Tribunal decision of the Tribunal within time. The applicant sought the review of the Tribunal decision within the thirty five day period which is prescribed.
4) This means that Section 477 of the MigrationAct does not raise itself in this case. Section 477 applies only to decisions of the Tribunal and not the primary decision. A decision was made by the Tribunal, and the applicant has applied to seek the review of that decision within time.
5) In this case, the applicant had a Migration Agent who was representing her at the time. Her name is Melany Ramos. Ms Ramos was well aware of the time period in which to seek the review of the decision by the Tribunal. The applicant was well aware of the time period in which an application for the review of the decision of the Tribunal must be made.
6) The agent was however sick. She had a severe back problem and was unable to process the Tribunal application within time. The agent contacted a well-respected Solicitor/Migration Agent who is known as [solicitor]. [Solicitor] was well aware of the time period in which to seek the review of the decision by the Tribunal. Unfortunately [solicitor] was unable to get the papers into the Tribunal within the prescribed period.
7) Given the above, Ms Ramos attempted once again to lodge the application on the last day for making an application to the Tribunal. Ms Ramos went online and attempted to lodge the application. She pushed the button which is called ‘enter’ and the application was apparently lodged.
8) Ms Ramos did not hear anything back from the Tribunal concerning the application. As far as she was concerned, she thought that the application had been lodged within time and there were no problems. Ms Ramos contacted the Tribunal in order to find out the status of the application, and the Tribunal advised her that no such application had been made, and that now the applicant was precluded from making an application because the applicant was statute barred.
9) The applicant is now seeking a Declaration from the Court that the application which was made to the Tribunal was a valid application, and further, that the Tribunal is now under a statutory obligation to assess that application.
10) If necessary, Both Ms Ramos and [solicitor] would be prepared to put on an affidavit attesting to the situation.
11) In the light of the above, it would not in my opinion be appropriate for this matter to be dealt with on the papers.
On 18th April 2017 the Court made Orders in relation to the filing of an Outline of Written Submissions of no more than 4 pages in length by 12 July 2017.
The Applicant’s submissions were received on 12th July 2017, and complied with the length requirement stipulated in the Orders.
The Applicant’s submissions were as follows:
1) The applicant applied for a visa. The application was refused, and the applicant wished to seek the review of the decision by the Administrative Appeals Tribunal. The applicant needed to lodge her application with the Tribunal within a prescribed period of time.
2) The applicant approached a migration agent in order to facilitate the application for review. The agent was at the time sick. She had a severe neck problem which required surgery. The cut-off date for making the application was fast approaching, and the agent was having great difficulty in lodging the application within the prescribed period.
3) On the last day in which to lodge the application, the agent attempted to lodge the application online. She filled in all of the details online, and then pushed the enter button on the computer in order to lodge the application.
4) The applicant and the agent were both of the opinion that the application for the review of the application had been lodged within the prescribed period. The Administrative Appeals Tribunal however is of the opinion that no such application had been lodged by the applicant. The Tribunal apparently has no evidence to suggest that an application has been made.
5) The migration agent involved will be giving evidence in this matter.
6) It is the applicant’s contention that she has made a valid application for the review of the decision, and that further, the application for the review of the application had been lodged within the prescribed period of time.
7) The applicant is seeking a declaration that the application for the review of the application was lodged within the prescribed period of time.
Submissions for the Respondent
The Respondent’s submissions were received on 20th July 2017. They were not compliant with the length requirement stipulated in the Orders, being a total of 8 pages in length. This digression was explained by the Minister seeking leave (at par.4) to make submissions on the issue of seeking Orders directly against the Applicant’s solicitor, pursuant to ss.486E and 486F of the Act. To the degree that it is required, that leave is granted.
The Respondent’s submissions are as follows (footnotes omitted):
INTRODUCTION
1) The Applicant has applied to the Court for an extension of time to make an application for judicial review of a migration decision of the Second Respondent (Tribunal) dated 23 January 2017.
2) The AAT decided that it did not have jurisdiction to review a decision of a delegate of the First Respondent dated 10 November 2016 to refuse to grant the Applicant a Protection (subclass 866) visa (Protection visa) under s 65 of the Migration Act 1958 (Migration Act), as the Applicant's application to the AAT was not made in time.
3) The First Respondent respectfully submits that:
a) the application for the extension of time should be refused; and
b) in relation to costs, either:
i) an order should be made, pursuant to s 486F(1)(a) of the Migration Act, that the Applicant's lawyer in the proceeding, Mr Hugh Ford, pay the costs incurred by the First Respondent because of the commencement or continuation of this migration litigation, fixed in an amount of $3,606 (calculated with reference to Item 2 of Division 1 of Part 3 to Schedule 1 to the Federal Circuit Court Rules 2001); or
ii) an order should be made that the Applicant pay the First Respondent's costs fixed in an amount of $3,606.
4) Noting the costs order sought by the First Respondent against Mr Ford, the First Respondent respectfully seeks the Court's leave to file these written submissions in excess of the four page limit ordered by the Court on 18 April 2017, so that adequate submissions can be made in relation to that matter.
BACKGROUND
5) The Applicant is a citizen of Ghana and she was born there on 3 August 1972: see CB 49.
6) The Applicant first arrived in Australia on 31 October 2009 as the holder of a Domestic Worker - Diplomatic or Consular (subclass TG-426) visa: see CB 141. The Applicant applied for a Partner Combined (subclass UK-820/BS-801) visa on 4 July 2011: see CB 141. That application was refused by a delegate on 19 May 2014, and review was (unsuccessfully) sought of that decision in the Migration Review Tribunal (as it was then known) which appears to have ruled that it did not have jurisdiction in circumstances where the relevant application for review was made out of time: see CB 142.
7) On 2 April 2015, the Applicant applied for a Protection visa: see CB 1-61. In summary, she claimed to fear harm (including being killed) from her (now deceased) ex-husband's family if she returns to Ghana.
8) On 10 November 2016, a delegate decided to refuse to grant the Applicant a Protection visa: see CB 136 - 156. On the same day, notification of decision and associated documents were sent to the Applicant's then representative by email to “[email protected]” (being the most recent email address known by the Department: see CB 103-107).
9) On 9 December 2016, the Tribunal received an online application for review of the delegate's decision: see CB 158.
10) On 3 January 2017, the Tribunal sent the Applicant's [sic] then representative a letter (via email) informing the Applicant that the Tribunal was of the view that the application was not a valid application (as it appeared to have been made out of time) and invited the Applicant to comment: see CB 180-182.
11) On 13 January 2017, the Tribunal received a response from the Applicant's [sic] representative, which, in effect, claimed that the Applicant's representative had submitted (or attempted to submit) the online application form on 7 December 2016, but realised a couple of days later that it had not been “uploaded online” due to IT issues: see CB 183-188. She attached a tax invoice from a company which contained charges for the supply of certain IT-related goods and services (dated 23 December 2016).
12) On 23 January 2017, the Tribunal decided that it did not have jurisdiction to review the delegate's decision because the application to the Tribunal had not been made in time. The Tribunal sent written notice of the decision (via email) to the Applicant's representative two days later on 25 January 2016: see CB 196-203.
13) On 6 March 2017, the Applicant's lawyer in this proceeding, Mr Hugh Ford, lodged an application for an extension of time to seek judicial review of the Tribunal's decision.
EXTENSION OF TIME APPLICATION
14) The Applicant's substantive application to the Court for judicial review of the Tribunal's decision needed to have been made within 35 days of “the date of the migration decision” (as defined in s 477(3)): see s 477(1) of the Migration Act.
15) Noting the nature of the Tribunal's decision in the present matter (i.e. that it did not have jurisdiction as the application was made out of time), the First Respondent submits that the date of the migration decision was 25 January 2017 (rather than 23 January 2017) in accordance with s 477(3)(d). Accordingly, the application to the Court must have been made by 1 March 2017 (but was made on 6 March 2017).
16) The Court may, by order, extend the 35 day period referred to above as the Court considers appropriate if an application for such order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order: see s 477(2) of the Migration Act.
17) In determining an application for an extension of time, relevant considerations to which the Court typically has regard include the length of the applicant's delay in lodging the application and the explanation for that delay, any prejudice to the respondent if the extension of time is granted, and whether the substantive application has any reasonable prospects of success: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP) (upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110).
18) When considering and determining the merits of the substantive application in such a context, the Court does not conduct a de facto full hearing of the substantive application, but rather considers whether the grounds of the substantive application are “arguable”, “reasonably arguable”, “sufficiently arguable” or have “reasonable prospects of success”: see MZABP at [63].
19) While the length of the delay in the present matter is relatively short (some 5 days), the Applicant has not advanced any explanation for the delay in making her application to this Court for judicial review of the Tribunal's decision. Rather, the Applicant has only proffered some explanation of why her application to the Tribunal (for merits review of the First Respondent's delegate's decision) was not made in time. This weighs against allowing the extension of time application.
20) Moreover, and in any event, the First Respondent submits that the substantive application plainly has no reasonable prospects of success, noting as follows:
a) The essence of the Applicant's grounds of her substantive application is that her application to the Tribunal was not made in time due to circumstances beyond her control (namely a computer or IT error experienced by her then representative) and that the Tribunal failed to consider this explanation in deciding that it did not have jurisdiction to review to the delegate's decision.
b) The delegate's decision, in respect of which review was sought by the Tribunal was a “Part 7-reviewable decision”: see s 411(1)(c). Among other requirements, an application to the AAT for review of a Part 7-reviewable decision must be given to the AAT within the period prescribed, which, in this case, was 28 days commencing on the day the Applicant was notified of the decision: see ss 412(1)(b) of the Migration Act and reg 4.31(2) of the Migration Regulations 1994 (Migration Regulations). This time period begins running when “valid” notification is given of the decision in accordance with s 66(2).
c) An application for review by the Tribunal must be given in one of the ways specified in reg 4.11 of the Migration Regulations, which relevantly includes transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975: see reg 4.11(1)(e). An application made to the Tribunal in accordance with reg 4.11(1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it: see reg 4.11(5).
d) Based on the material before it, the Tribunal found that valid notification of the delegate's decision was given to the Applicant in accordance with s 66(2) of the Migration Act via email (to the Applicant's representative) on Thursday 10 November 2016. The First Respondent submits that the Tribunal was entitled to make this finding on the material before it, which included copies of the notification and related documents and the fact that the Applicant's representative had obviously received the notification (and had not claimed or demonstrated that she had received it on any other date). In this proceeding, the Applicant has not submitted that her representative did not receive the notification (and related documents) on 10 November 2016, nor is there any evidence to suggest otherwise.
e) By the giving of the notification as set out in the paragraph above, the Applicant was taken to have received the notification on 10 November 2016: see ss 66(2), 494B(5) and 494C(5) of the Migration Act and reg 2.16(3) of the Migration Regulations. Accordingly, the Applicant was required to have made her application to the AAT by Thursday 8 December 2016. In fact, she made it on Friday 9 December 2016.
f) It is well settled that the Tribunal has no power to extend the time period referred to above, no matter how compelling the circumstances or whatever the reason for the default, including where it is claimed that the default is due to some kind of technical malfunction.
g) Contrary to the Applicant's assertion in her application, the Tribunal plainly considered the submissions made by the Applicant's representative as to the reasons for the delay: see CB 203 at [4]. The Tribunal acknowledged the claimed IT failures, and also noted that the tax invoice from the IT company provided by the representative indicated that the work had been undertaken two weeks after the alleged problems were identified.
h) Lastly, there is no evidence of any fraudulent conduct by the Applicant's representative (cf. negligence, inadvertence, incompetence or some other mishap) which could have (arguably) subverted or stultified the operation of the statutory scheme, noting that, in any event, the Federal Court has expressed differing views as to whether such conduct could impact upon the operation of s 412(1)(b) in the context of determining whether the Tribunal has jurisdiction to review a decision.
2) In those circumstances, the First Respondent submits that no extension of time should be granted in this matter.
Costs
22) The First Respondent submits that this is an appropriate case in which the Court ought to make orders pursuant to s 486F of the Migration Act.
23) The Court's power to make orders under s 486F is enlivened if a person acts in contravention of s 486E. The First Respondent submits that Mr Ford has contravened s 486E for the following reasons:
a) First, for the purposes of the chapeau in s 286E(1), the First Respondent contends that it can be readily inferred that Mr Ford has “encouraged” the Applicant to commence or continue migration litigation, noting that he prepared and signed the application to the Court (which included a certification made by Mr Ford pursuant to s 486I), he has given an affidavit in the proceeding, he has appeared for the Applicant at two directions hearings in the matter, and he has also prepared and filed submissions dated 30 March 2017 (in which he contends that no extension of time application is necessary as the Applicant did seek review of the Tribunal's decision within the relevant thirty-five day period).
b) Second, for the purposes of s 486E(1)(a), the First Respondent contends that the migration litigation in question (being the present application) has no reasonable prospect of success (or any prospect of success) for the reasons set out above in relation to the merits of the substantive application.
c) Third, for the purposes of s 486E(1)(b)(i), the First Respondent submits that it can be inferred that Mr Ford has not, at any time, given proper consideration as to the prospects of success of the migration litigation. The word “proper” invites consideration of whether, in the circumstances, there was a balanced and thoughtful assessment of the prospects of success, such assessment being directed to whether, objectively, the litigant had prospects of success. In many cases, a conclusion that the litigation in question has no reasonable prospect may be enough to allow an inference to be drawn that no proper consideration was given as to prospects. The First Respondent submits that this is such a case. Mr Ford is a qualified legal practitioner, who holds himself out to be “…a highly exprerienced (sic) Solicitor and Registered Australian Migration Agent…”. As noted at paragraph 20(f) above, the law is well settled that there is no power to override or extend the time period within which applications for review must be made to the Tribunal, including in circumstances such as those in the present proceeding. This is a relatively discrete and binary issue. A solicitor practising in migration law ought to be aware of this well settled legal position, or at the very least ought to have become aware of it if “proper consideration” had been given to the prospects of success of the litigation in this case. The information before the Court indicates that, on an objective assessment, no such proper consideration has been given by Mr Ford.
24) The policy rationale behind s 486E is to discourage lawyers and other persons from encouraging the commencement or continuation of migration litigation that is without merit. The substantive application in the present proceeding involves a discrete and binary issue. On settled authority, the substantive application is entirely without merit and is bound to fail. As would ordinarily be the case, the First Respondent should have his costs. However, in this particular case, it would be most appropriate for Mr Ford to be liable to pay the costs of this proceeding as without his encouragement and advice, the proceeding may not have been commenced or continued. Accordingly, the First Respondent submits that there is no good reason why the Court should not exercise its discretion in s 486F to make an order of the kind referred to in paragraph 3(b)(i) above. Alternatively, the First Respondent would seek an order that the Applicant pay the First Respondent's costs.
25) If the requested order is made against Mr Ford under s 486F, Mr Ford will not be entitled to demand or recover from the Applicant any part of an amount which Mr Ford is directed to pay the First Respondent: see s 486F(5). Further, the Applicant could apply to the Court for, or the Court could consider making on its own motion, an order pursuant to s 486F(1)(c)(i) and / or (ii), to the effect that costs incurred by the Applicant to Mr Ford in the commencement or continuation of the migration litigation are not payable to Mr Ford and / or an order that Mr Ford repay the Applicant any costs already paid by her to Mr Ford in relation to the commencement or continuation of the migration litigation.
Consideration and Disposition
First, however curious it may be factually, I agree with and accept the Minister’s submissions, not least the observation that:
… While the length of the delay in the present matter is relatively short (some 5 days), the Applicant has not advanced any explanation for the delay in making her application to this Court for judicial review of the Tribunal's decision. Rather, the Applicant has only proffered some explanation of why her application to the Tribunal (for merits review of the First Respondent's delegate's decision) was not made in time.
There is some reference in the Applicant’s submissions, and in Ms Ramos’s affidavit, to the effect that other legal practitioners were asked to assist the Applicant but, for whatever reason(s), ultimately did not so assist. Indeed, the burden of Ms Ramos’ affidavit, as well as the Applicant’s initial and later submissions, focus almost exclusively on the difficulties in relation to the Application to the Tribunal rather than the Application to this Court.
Secondly, because the factual focus of the Applicant’s submissions, and indeed the evidence filed on her behalf by her solicitor and Migration Agent, was on the out of time Application to the Tribunal to review the Delegate’s decision, that undisputed factual reality put into more stark focus the Tribunal’s decision that it lacked jurisdiction to hear and determine that Application. This was by virtue of the operation of s.412(1)(b) of the Act and Migration Regulations 1994 (Cth), reg. 4.31 (“the Regulations”).
In my view, the Applicant consistently failed to come to grips with the express terms of s.412 of the Act, Regulation 4.31, and the significant jurisprudence in relation to the complete statutory incapacity of the Tribunal to extend time in matters that had been filed out of time. It is sufficient to note the following:
(a)In SZJQC v Minister for Immigration and Citizenship, Kirby and Heydon JJ said, at [3]: “There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default.”[2]
(b)In Rana v Minister for Immigration and Border Protection, Wigney J (sitting as the Full Court) said, at [1] and [3]:[3]
[1] This is an unfortunate case. It shows how some provisions of the Migration Act 1958 (Cth) (the Act) can operate in a needlessly harsh and unreasonable way in some circumstances.
[3] … the Tribunal has no discretion to extend the time within which an application can be made, or to otherwise waive the time limit or receive an application out of time.
Respectfully, I agree with and adopt his Honour’s comments in Rana as completely applicable to the current matter.
[2] SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66.
[3] Rana v Minister for Immigration and Border Protection [2014] FCA 1233. See also the earlier comments by Wilcox J in Ismail v Minister for Immigration and Multicultural Affairs [1998] FCA 1654 to similar effect.
In the light of the matters I have noted, it must follow, however difficult the result (as acknowledged by Wilcox J in Ismail, and by Wigney J in Rana) that the Tribunal was plainly correct in stating in its reasons that it had no jurisdiction to entertain the Application to review the Delegate’s decision because it was filed out of time. The technical or other reason why it was late, however unfortunate and outside the control of the Applicant’s migration agent those reasons may be, is not relevant to the Tribunal’s decision.[4] The authorities to which I have referred are, of course, formally and in every other respect, binding on this Court. The state of the law is abundantly clear: the Tribunal has no statutory authority to extend time within which applications for review of a delegate’s decision are to be lodged.
[4] Technical or mechanical problems (including technical malfunction) for the failure to lodge applications in time were considered by Wilcox J in Ismail and by North J in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1710. In both instances, the Court found that such matters did not assist the Applicant; the Tribunal was statutorily without power to amend the time limit within which applications are to be lodged. The only mitigating course available to persons in such plight was to make an Application to the Minister under s.48B of the Act.
Once there was “an issue” with the time within which the application to review was lodged, that issue became decisive. And precisely because there is no statutory (or any other) capacity for the Tribunal to extend the time within which such applications are made, there was no alternative decision available to the Tribunal to the one that it made, namely that it had no jurisdiction to deal with the application. It was never within the provenance of this Court to have regard to, other than as a matter of fact, the nature and detail of the out of time Application to the Tribunal. Formally, the only application to this Court, was in relation to the out of time Application to the Tribunal and the Tribunal’s decision in relation to it, dated 23rd January 2017.
Part 8B of the Migration Act – Costs Application
What is rather more troubling in this matter, most unfortunately, is the abject failure of the Applicant’s lawyer to come to terms with the statutory provisions involved (noted by the Tribunal), and/or even to refer to any of the standard authorities (to which the Minister referred) which are noted in these reasons. This failure resulted in insult being heaped upon injury to the Applicant by her lawyer pressing on with the Application to this Court in the face of the utter futility of it.
The basic principles to apply in relation to extensions of time are well-known and are set out in cases such as Hunter Valley Developments Pty Ltd v Cohen, Seiler v Minister for Immigration, Local Government and Ethnic Affairs, and SZTES v Minister for Immigration and Border Protection.[5] I need not repeat the standard principles outlined in those cases at the places cited. Moreover, a summary of principle is set out in the First Respondent’s Submissions, set out earlier in these reasons. I accept that summary of principle.
[5] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at [98] (French J); SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [44] & [49] (Wigney J).
In my view, it is precisely because the correctness of the Tribunal’s decision cannot be doubted, by virtue of (a) the operation of s.412 (and the Regulations), (b) the factually undisputed reality that the application to the Tribunal in relation to the Delegate’s decision was out of time, and (c) the undisputable jurisprudence of long-standing which confirms that the Tribunal was (and is) without power to extend time, that in consequence, any Application to this Court for an extension of time cannot have any “reasonable prospect of success”, as specified in s.486E.
In my view, any lawyer who properly researched matters in which he or she was involved in migration cases before this Court (or any other Court), in the light of the statutory provisions involved and the jurisprudence referred to, would have come to the conclusion that (a) the Application to the Tribunal was out of time and that the Tribunal had no statutory power to extend time, and therefore (b) the Application for Review to this Court of the Tribunal’s decision had “no reasonable prospect of success.” A fortiori was this the inevitable conclusion in circumstances such as here where the lawyer involved regularly appears before this Court (and other Courts) in migration matters, and who holds himself out as someone with a degree of expertise in migration matters.[6]
[6] In this regard, see the First Respondent’s Submissions, par.23(c), which quotes a section from the Applicant’s lawyer’s web-site.
In the circumstances outlined above, the terms of ss.486E and 486F must come into play. Those sections provide:
486EObligation where there is no reasonable prospect of success
(1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
(a) the migration litigation has no reasonable prospect of success; and
(b) either:
(i) the person does not give proper consideration to the prospects of success of the migration litigation; or
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2) For the purposes of this section, migration litigation need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.
486FCost orders
(1) If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:
(a) an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation;
(b) an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation;
(c) where the person is a lawyer who has acted for the litigant in the migration litigation:
(i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer;
(ii) an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation.
(2) If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made.
(3) An order under this section may be made:
(a) on the motion of the court; or
(b) on the application of a party to the migration litigation.
(4) The motion or application must be considered at the time the question of costs in the migration litigation is decided.
(5) A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section.
I note that Mr Ford affirmed and filed an affidavit in support of the Applicant’s Application to this Court, as well as signing it. He has attended Court at two directions hearings.
The First Respondent relied upon two decisions of the Federal Court of Australia: Moore J in SZFDZ v Minister for Immigration and Multicultural Affairs, and Rangiah J in SZTMH v Minister for Immigration and Border Protection.[7] In the former case, a “personal” costs Order was made; in the latter it was not. For current purposes, it is sufficient to note the following from the decision of Moore J, on which Rangiah J relied in SZTMH.
[7] SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366; SZTMH v Minister for Immigration and Border Protection [2015] FCA 124.
At [21] in SZFDZ, his Honour said:
The word “encourage” is potentially of wide import: see Employment Advocate v Williamson [2001] FCA 1164; [2001] 111 FCR 20 at [72] and following. However, in the present case, there can be no real issue, in my opinion, about whether Mr Laba-Sarkis “encouraged” the applicant as required by s 486E(1). By his own admission, Mr Laba-Sarkis prepared the application and draft notice of appeal for the applicant, and made oral submissions on the applicant's behalf at the hearing. It may also be noted that he prepared the letter dated 23 March 2006 which was addressed to the Minister, requesting exercise of the power under s 417 of the Act. It is not clear what role if any he took in the Federal Magistrates Court proceedings, although in any event, it is only the proceedings in this Court which are relevant for present purposes.
Then at [25] – [27], Moore J said:
[25] However, the subjective views of a person in the position of Mr Laba-Sarkis are not determinative of whether “proper consideration” was given to the prospects of success. The word “proper” invites consideration of whether, in the circumstances, there was a balanced and thoughtful assessment of the prospects of success, such assessment being directed to whether, objectively, the litigant had prospects of success. Mr Laba-Sarkis is not legally qualified. However, he has had experience in the field of migration law. He does not, in his affidavit, explain why the application for leave had any prospects of success having regard to the reasons for decision of the Federal Magistrate and the issues which might be raised in any appeal. In my opinion, the only inference that can be drawn is that Mr Laba-Sarkis did not give proper consideration of the prospects of success of the application for leave.
[26] The next issue is whether I should exercise the discretionary power conferred by s 486F to order Mr Laba-Sarkis to pay the Minister's costs. That section is part of a recently enacted costs regime embodied in Part 8B of the Act. That regime was introduced against a background where in both this Court and the Federal Magistrates' Court, there has been an unrelenting stream of applications challenging decisions made under the Act. Those applications are often brought by litigants in person who, in many cases, have been given assistance by others. History reveals that many of those applications are unmeritorious and are doomed to fail. That is not to say, of course, that there are not also applications which reveal decision-making either arguably or actually infected by reviewable error. There are. Mostly, the applications relate to decisions made under the Act concerning applications for protection visas. Legal error resulting in the refusal of a protection visa, in circumstances where such a visa should or might be granted, could have profound consequences for the individual applicant.
[27] However, Parliament appears to have taken the approach that, in relation to proceedings concerning decisions under the Act, proper consideration must be given by people assisting litigants about the prospects of success before proceedings are commenced. If that does not happen, the person providing assistance is at risk of being ordered to pay the costs of other parties to the litigation. In the present case, I am satisfied I should order Mr Laba-Sarkis to pay the Minister's costs. However well intentioned his actions may have been, Mr Laba-Sarkis encouraged the applicant to commence proceedings which were bound to fail. There is nothing to suggest the applicant had any real appreciation about whether the application might succeed.
In my view, the circumstances of the matter confirm that, faced with the clear statutory provisions and the long-standing, unchallenged jurisprudence that patently stood in the way of the Applicant’s success both before the Tribunal and in this Court, however well-intentioned, Mr Ford clearly chose to proceed with the Application. He actively took steps to continue and to aid the Application, including filing an affidavit on behalf of the Applicant, and filing various, albeit repetitive in style and content, written submissions. In doing so, in my view, in the light of the clear authority from the Federal Court over many years in relation to applications of the kind currently before this Court, he must be taken not to have properly considered the [reasonable] likelihood of success of the Application as he was required to do under s.486E(1)(b)(i). Respectfully, it defied “common sense”, as well as abundantly clear judicial authority, to continue the Application and to risk his client incurring an adverse costs Order.
Further, in my view because of the gravity of the failure of the Applicant’s lawyer in prosecuting an Application that was destined to fail, it is even more important to highlight his responsibility under the section in question. I leave to one side his ethical responsibilities to the Court to assist it, which is a further, significant consideration.
As noted above, in terms, s.486E(1)(b)(i), relevantly specifies as a pre-condition for assessment of whether there “is no reasonable prospect of success” that “a person does not give proper consideration to the prospects of success of the migration litigation” (emphasis added).
Accepting that it was in a very different context (viz the exercise of Ministerial decision-making) the comments by the Full Court of the Federal Court of Australia in Tickner v Chapman respectfully remain a significant touchstone regarding the understanding of what it means “to consider.”[8]
[8] Tickner v Chapman (1995) 57 FCR 451. This decision has been regularly cited in migration litigation, again in slightly different contexts, usually in relation to whether a Tribunal or a Court has given “due” consideration to material put before it. Among other cases, see SZVVR v Minister for Immigration and Border Protection [2016] FCA1364.
In Tickner, Black CJ said (at 462):
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. As “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of.” Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
Shortly thereafter, his Honour said, at 462-463:
… The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance.
Her Honour, now the Chief Justice of the High Court, Kiefel J said, at 495 (emphasis added):
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them.
In the light of these further comments by the Full Court in relation to what it means properly “to consider” something, I note the following.
First, Mr Ford was on notice of the First Respondent submitting to the Court that a costs Order pursuant to s.486F was being sought against him. Detailed written submissions by the First Respondent set out plainly the grounds and the jurisprudence upon which such an Order was being sought.[9] Most unfortunately, Mr Ford turned up to the hearing without a copy of the Act (or Regulations), and without any relevant case law that may have assisted him. He was plainly unprepared to meet the submissions made by the First Respondent. Such submissions as he made in relation to any aspect of the matter that was before the Court were unsupported by relevant authority, indeed by any authority.
[9] See the Minister’s submissions, filed 12th July 2017, pars.22-25, set out earlier in these reasons.
Secondly, in the affidavit which he affirmed on 6th March 2017 and filed on the Applicant’s behalf, and in two sets of written submissions (filed respectively on 31st March and 12th July 2017) Mr Ford only ever referred to s.477 of the Act. His submissions were devoid of any reference to relevant authority in relation to the operation of that section, or to any other section of the Act relevant to the issues before this Court. And as already noted, his submissions (and affidavit) essentially repeated the same factual grounds upon which his client sought redress from this Court. There was no discussion of any jurisprudence.
Further, without leave of the Court, and evidently with no prior notice to the First Respondent’s solicitors, on 15th August 2017, he filed further written submissions, post the hearing. Again, his only point of reference was s.477 of the Act, without any reference to any authority regarding the operation of that section, or to any other section of the Act.
I have already mentioned the risk, as it seems to me, of Mr Ford becoming a witness in his client’s case by virtue of him affirming and filing an affidavit that descended into many basal facts of the contest between the parties. What is even more troubling is his zeal on his client’s behalf which is, very unfortunately, unchained from or checked by any relevant principle. Zeal for a cause or a client (however laudable), without proper resort to principle, is dangerous and ultimately futile. It exposes a client/Applicant to false hope as well as an adverse costs order. This is exactly what has transpired here.
In such circumstances, he must be held accountable for the costs that were needlessly incurred by the Minister, not to mention the waste of the scarce public resources of this Court.[10] Those costs must be as per the First Respondent’s Orders sought in accordance with this Court’s Rules, namely in the sum of $3,606.00. His client should not bear the brunt of an adverse costs Order. She clearly relied upon his advice and experience in prosecuting the Application. She did so at her peril.
[10] In this regard, see the extensive discussion by French CJ in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5] and [23] – [27].
For the same reasons, pursuant to s.486F(1)(c), any costs currently due and owing by the Applicant to Mr Ford are not payable by her, and similarly, any costs already paid by her to date are to be repaid to her by Mr Ford.
Finally, because the Orders made today are so significant and so adverse in relation to the conduct of a legal practitioner, and because Mr Ford has a not insignificant history of appearing in this Court (in Canberra and elsewhere), in my view it is essential that he be put on notice in the most forceful and direct way possible to indicate that if, in the future, he conducts matters in a way that is inappropriate procedurally or otherwise, he may be faced with the Court, on its own motion, providing the ACT Law Society and or the Bar Association (and or any other relevant authority) with a copy of this judgment, together with the transcript and or the judgment from those future proceedings.
Code of Conduct
For completeness, and because of (a) the Court’s decision in the matters formally before it, and (b) the general correspondence between the terms of ss.486E and F and the “ethical” requirements prescribed for migration agents (of which Mr Ford is one), I note the following matters. In doing so, I readily accept that no one raised or argued any of the following matters before me. They have not been taken into account in relation to the findings and Orders made in the [current] substantive Application determined by the Court adversely to the Applicant.
There exists a Code of Conduct for migration agents, which sets out specific obligations and responsibilities of registered migration agents under the Code of Conduct (“the Code”). This Code is enacted as Schedule 2 of the Migration Agent Regulations 1998 under the authority of the Act.
Relevantly, s.314(2) of the Act reads:
(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
There are several pertinent clauses in the Code that warrant attention in the context of these reasons.
Clauses 2.1, 2.17 and 2.18 of the Code read as follows:
2.1 A registered migration agent must always:
(a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client in writing that, in the agent's opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application--must obtain written acknowledgment from the client of the advice given under paragraph (b).
2.18 A registered migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect.
The Full Court (Allsop CJ, Robertson and Mortimer JJ) in SZSJA v Minister for Immigration and Border Protection noted the following in relation to the Code and its application or operation in relation to the standard of conduct properly or reasonably expected of migration agents, at [64]:[11]
Section 314(2) of the Migration Act provides that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct. It follows, in our opinion, that relevant to but not determinative of the standards of ordinary decent migration agents are the terms of the Code of Conduct for Registered Migration Agents, particularly that part dealing with the making of statements which the agent knows or believes to be misleading or inaccurate. Similarly, if the agent is found to have acted without the authority of the appellant it may be relevant to consider as going to the standards of ordinary decent migration agents whether or not the agent may have contravened any statutory provisions such as, for example, s.234(1)(a) of the Migration Act dealing with the presentation to an official of a false document.
[11] SZSJA v Minister for Immigration and Border Protection (2013) 137 ALD 36; (2014) 308 ALR 266.
In an earlier decision in relation to the operation of the Code and the conduct of migration agents, Harnett v Migration Agents Registration Authority,[12] the Full Court (Madgwick, Finkelstein and Dowsett JJ) said, at [46]:
[46] Broadly speaking, cl 2.18 requires that an agent take relevant action at an appropriate or suitable time. It would not be timely to fail to lodge a submission by a stipulated date. The notion of “timeliness” invites comparison between actual conduct and a specified time limit or standard. Want of competence or diligence for the purposes of cl 2.1(b) will usually be demonstrated by comparison of the impugned conduct with that of the reasonably competent and diligent migration agent, although statutory prescriptions may also be relevant. We have not been referred to any evidence concerning the conduct of a reasonably competent and diligent migration agent. It is no doubt arguable that cl 2.18 itself sets a standard of competence and reasonable diligence. If so, a breach of cl 2.18 might, at least in some circumstances, also constitute a breach of cl 2.1(b). However it does not follow that any breach of cl 2.18 would necessarily constitute a breach of cl 2.1(b).
[12] Harnett v Migration Agents Registration Authority (2004) 140 FCR 388 at [46].
In the context of the current matter before the Court, having regard to the Court’s findings of Mr Ford prosecuting an Application that was doomed to fail, and his clear failure to have regard to any proper authority that would have ensured him properly advising his client about the certainty of failure of the Application, it must also follow that he has necessarily breached, in my view, the Code in relevant respects. Again I stress that I have had no regard to the Code and the proper conduct of migration agents as discussed in the decisions of the Full Court of the Federal Court of Australia to which I have referred in determining the current Application before this Court.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 7th September 2017
CORRECTIONS:
Reasons for Judgment: Page 11, Paragraph 21, thirty-fourth line delete name of solicitor and insert “[solicitor]”
Reasons for Judgment: Page 11, Paragraph 21, thirty-sixth line delete name of solicitor and insert “[solicitor]”
Reasons for Judgment: Page 12, Paragraph 21, fifteenth line delete name of solicitor and insert “[solicitor]”
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