CHK16 v Minister for Immigration and Border Protection
[2021] FCCA 1482
•30 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CHK16 v Minister for Immigration and Border Protection [2021] FCCA 1482
File number: MLG 1765 of 2016 Judgment of: JUDGE RIETHMULLER Date of judgment: 30 June 2021 Date of amendment Amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 23 September 2021 Catchwords: MIGRATION – Costs hearing – Immigration Assessment Authority decision – fraud by solicitor – migration agent – agent’s liability – exceptional circumstances – referral to Victoria Legal Services Commissioner – costs allowed Legislation: Federal Circuit Court Rules 2001
Migration Act 1958 (Cth)
Migration Regulations 1994
Cases cited: Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; (2012) 200 FCR 154
DUA16 v Minister for Immigration and Border Protection and CHK16 v Minister for Immigration & Anor [2019] FCCA 1128
Minister for Home Affairs v DUA16 (2019) 273 FCR 213; [2019] FCAFC 221
Minister For Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 385 ALR 212; (2020) HCA 46
Number of paragraphs: 35 Date of last submission: 2 June 2021 Date of hearing: 2 June 2021 Place: Melbourne Counsel for the Applicant Adam McBeth Solicitor for the Applicant Wimal & Associates Counsel for the First Respondent Nick Wood Solicitor for the First Respondent Clayton Utz Counsel for Ms Rajasekaram Jonathan Barrington Solicitor for Ms Rajasekaram Lander and Rogers ORDERS
MLG 1765 of 2016 BETWEEN: CHK16
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentIMMIGRATION ASSESSEMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS THAT:
1.The first respondent pay the applicant costs fixed at $37,259.04.
2.Ms SOWMIYA RAJASEKARAM (‘Ms RAJASEKARAM’) pay the first respondent costs in the sum of $22,839.04.
3.The conduct of Ms RAJASEKARAM in respect of the events leading to these proceedings be referred to:
(a)the Victorian Legal Services Commissioner; and
(b)the Office of the Migration Agents Registration Authority (OMARA).
4.The Registrar provide a copy of the judgment, filed documents and transcript to the relevant authorities, and to the extent requested make available any audio recording or other document held by the court that may bear upon the enquiries that the Victorian Legal Service Commissioner or the officer of the Migration Agents Registration Authority may reasonably pursue in order to determine what steps if any should be taken with respect to the conduct of Ms RAJASEKARAM in this matter.
AND THE COURT ORDERS, BY CONSENT, THAT:
5.The first respondent pay the Applicant’s costs in relation to the further hearing held on 2 June 2021, fixed in the amount of $3,600.
6. Ms RAJASEKARAM pay the First Respondent’s costs in relation to the further hearing held on 2 June 2021, fixed in the amount of $2,500.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 23 September 2021
REASONS FOR JUDGMENT
JUDGE RIETHMULLER
The applicant in this matter sought judicial review of a decision of the Immigration Assessment Authority (‘IAA’) which affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The circumstances surrounding that application are set out in the primary judgment DUA16 v Minister for Immigration & Anor and CHK16 v Minister for Immigration & Anor [2019] FCCA 1128. In substance, the applicant was successful in his application at first instance, as it was found that the applicant’s agent had engaged in fraud in her dealings with the applicant, when preparing and providing material on his behalf to the IAA, thereby leading the IAA into error.
The solicitor Ms RAJASEKARAM who represented the applicant in the IAA proceedings (and up to the moment of lodging his judicial review application), had utilised a set of submissions in substantially identical form for forty separate cases, including CHK16’s case. She had no file notes and does not appear to have advised the applicant of the possibility of placing additional information before the IAA. After his unsuccessful proceedings before the IAA, his solicitor prepared an application for the court and brought him to the Federal Circuit Court in Melbourne to assist him in lodging that application. She did not, however, place her name on the application as the solicitor. At first instance, before this Court, the applicant was successful in obtaining orders quashing the decision of the IAA.
The Minister lodged an appeal, and on 10 December 2019, the first instance decision was affirmed in Minister for Home Affairs v DUA16 (2019) 273 FCR 213; [2019] FCAFC 221 by the Full Court of the Federal Court of Australia (‘Full Court’).
The Minister sought and obtained special leave to appeal to the High Court of Australia (‘High Court’), resulting in the decision in DUA16’s case being overturned, such that he was unsuccessful in his application, and the decision in this case being upheld: see Minister For Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 385 ALR 212; (2020) HCA 46.
CHK16 was successful in the High Court on the basis that the IAA had acted in a way that was legally unreasonable in failing to seek a copy of submissions that related to him, rather than another person.
Notably, at the trial of the matter, given the nature of the allegations being made relating to the solicitor, neither party sought to call the solicitor as a witness. This is entirely understandable in the circumstances of such an unusual case. As a result, I directed that the solicitor be called as a witness so that both parties could cross-examine her, and to ensure that the court had all the relevant evidence before it, given the nature of the allegations. Whilst one would hope that the solicitor would have acted honourably and maintained a careful file with file notes confirming instructions (which would be likely to make clear precisely what had gone on with respect to the submissions to the IAA), the conduct of the solicitor in this matter was not only wholly inadequate by any reasonable professional standards, but also fraudulent.
The conduct of the solicitor resulted in considerable additional expenditure in the hearing of this matter.
APPLICANT’S COSTS
I accept the estimate of the Minister, which has been adopted by the parties, being that of $37,259.04 that was incurred in costs by CHK16, the amount in excess of $14,420 related to the issues resulting from the solicitor’s conduct.
Counsel for the Minister argues that ultimately, the matter succeeded in the High Court on a different legal basis to that in which the applicant was successful in the Federal Circuit Court and the Full Court. There can be little dispute with this submission. However, the nature of the issues put to the court always concerned the relief available to the applicant, as a result of wholly inappropriate submissions being made to the IAA, through no fault of his own and fraud by his solicitor. In this respect, it appears to me to have been entirely reasonable that he would have pursued the issues relating to the fraudulent conduct of his solicitor, as a reasonable basis for mounting his challenge to the IAA’s decision. This is not a case where the applicant has brought an entirely different claim on which he has been unsuccessful, nor a case where he has sought additional or different relief on the basis of the additional evidence. The matters put were clearly connected to the relief sought. I am persuaded that the submissions of the Minister take too narrow a view as to the issues in the case. In the circumstances of this case, it is reasonable for the applicant to have the entirety of his costs.
Even if I am incorrect in this view, I note that the applicant received an award for the entirety of his costs in the Full Court, and that the grant of special leave by the High Court was on condition that the Minister would not seek to overturn the previous costs orders. The costs issues had not been dealt with in this court out of caution, as the strong findings made against the solicitor, made it desirable for the appeal matters to be dealt with first.
As it transpires, the findings against the solicitor were not varied on appeal, being affirmed in the Full Court and not challenged in the High Court. Whilst the specific undertaking given to the High Court by the Minster would not be breached by challenging the costs orders that would be made in this court, it appears that the spirit of such an undertaking must be to the effect of not denying the applicant his costs in the courts below.
In these circumstances, I am persuaded that the applicant should have his costs of the proceedings fixed at $37,259.04 (a figure agreed by the parties as being a reasonable amount for the costs in these proceedings) and that be met by the Minister.
THE SOLICITOR’S CONDUCT WITH RESPECT TO COSTS
A further issue that arises in this case is whether or not the solicitor, whose conduct was at the heart of all of these difficulties, should be ordered to pay all or part of the costs incurred. The Minister does not pursue an order against the solicitor for any part of the Minister's costs, nor does the Minister seek an order with respect to the applicant's cost, to the extent they do not exceed $14,420. The Minister does pursue the additional costs, which were incurred solely as a result of the conduct of the solicitor.
In this matter, the solicitor was given ample notice of the potential for the court to consider making a costs order against her. The solicitor was represented by Counsel at the costs hearing before me, and made both written and oral submissions.
Power of the court to order a non-party to pay costs
The submissions of the parties focused on the powers of the Court to order a non-party to pay all or part of the costs of proceedings. The parties referred to two leading authorities on this issue. In Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198 (‘Bischof’), the plaintiff had sued to recover a TattsLotto win in a sum exceeding $640,000, as a result of claiming to have won the first prize in a draw in August 1989. The plaintiff held the winning ticket. The plaintiff had obtained the ticket from a business which provided tickets to purchasers of investment plans, the cost of the ticket being taken from the commission on the plans.
There was a dispute as to whether or not the ticket was valid, relying in particular upon a rule that prohibited tickets being completed by mechanical means. Unfortunately, the winning ticket had been destroyed by the life insurance business shortly after the draw, in full knowledge that there was a dispute as to whether the winning ticket had been completed manually or by mechanical means. This resulted in a significant amount of time being spent at trial on this issue.
Gobbo J reviewed various cases in which non-parties had been ordered to pay costs, identifying a case where there had been separate proceedings as between a charter, owner, and sub-charterer of a vessel, caused because there were separate arbitrations. His Honour also identified a second category of cases involving non-parties who were the receivers and managers of companies who were parties to the proceedings, who continued or commenced proceedings on behalf of an impecunious company. Thirdly, cases where a successful defendant sought costs against a third party where an impecunious plaintiff had been financially supported by the third party to bring the litigation.
Importantly, Gobbo J concluded that there were no closed categories of cases where such an order was appropriate, saying at page 202:
It would appear that the present case does not fall within the three types of cases. But that line of inquiry is a misleading one to the extent that it is founded on the proposition that a discretion that is not confined by the terms of the statute must be exercised within the confines of past decisions.
His Honour concluded at page 204 that a review of the authorities:
…provides only limited guidance as to the approach to exercise of discretion in a case like the [case before the court] which does not fit within prior categories of decisions…
His Honour then referred to the few dicta that are relevant indicating the need for a connection with the proceedings rather than necessitating an interest in the proceedings. At page 206, his Honour noted that the business in that case had an interest:
– in the fate of the proceedings because in the event of the plaintiffs failing in their claim, it was exposed to proceedings by the plaintiffs for possible breach of its contract with the plaintiffs.
The same can clearly be said of the solicitor in this case, in that she would have been open to proceedings by the plaintiffs for negligence and fraud, should they have been unsuccessful. The damages in those proceedings would likely be significant. The academic proposition that there may not be an adequate financial remedy if someone must return to a country from which they are fleeing likely serious harm or death (and thus seeking a protection visa) overlooks the reality that many countries offer visas to those who invest a sufficient sum. Thus, damages may well be readily assessed having regard to the necessary investment sum to obtain an alternative form of visa in a country at which the applicant would not be at risk.
The further connection that the solicitor has in this case is that her conduct was the cause of the proceedings in circumstances where she was engaged to undertake professional services and the failure to do so appropriately was likely to result in significant litigation.
The decision in Bischof was referred to with approval in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50; (2012) 200 FCR 154. Notably, the Full Court said:
81.The case before Gobbo J was not one of those three kinds, but he said that it would be misleading to think that a court did not have the power to order costs against a non-party except in those three circumstances. After discussing a decision of the Victorian Supreme Court in Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203, he said at 204–205:
The review of the authorities provides only limited guidance as to the approach to exercise of discretion in a case like the present which does not fit within prior categories or decisions. It can, however, be said in the light of the dicta in the Burns Philp Case that there is an obligation to find a connection between the non party and the proceedings. Given that there must at least be a connection between the non party and the proceedings, what form must this connection take?
It is not practicable to lay down a set of parameters in advance for there may be cases where the interests of justice support an order for costs even though the connection is slender. Thus if a witness deliberately refuses to answer to a subpoena and thereby causes the case to be adjourned and so increases costs to the parties, I would have thought that it was very much arguable that he should bear these extra costs. There would seem to be no connection in the ordinary sense of that word between that witness and the proceedings, beyond the fact that he was a potential witness. It may be said, however, that there is a causal connection between the non party and the incurring of the costs, a matter that bears directly on the justice of whether he should be made to pay costs that he has caused to be incurred.
Again, there may be cases where the connection is significant but not material to the issue of costs. Thus a person may benefit greatly from a particular proceeding but may not have any real part in supporting the proceeding.
The most convenient course is, in my view, to look at both factors in considering the connection between the proceedings and the non party, namely, the connection between the non party and the proceedings and secondly, the causal connection between the non party and the costs.
Importantly, the Full Court went on to say:
84.This court has jurisdiction to award costs against a non-party, at least in the circumstances identified by Mason CJ and Deane J in Knight v FP Special Assets Ltd. This court has also awarded costs against a non-party where a non-party is a legal representative of a party to the proceedings as a result of the consequence of the non-party’s legal representative’s conduct in the proceeding: De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544. In that regard the court relies upon its general power to award costs against a non-party and not upon the court’s jurisdiction to discipline its own officers: Knight v FP Special Assets Ltd at 188 per Mason CJ and Deane J; Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 at 980 per Lord Goff of Chieveley. Costs have also been awarded against a non-party where a migration agent caused the Minister to incur costs as a result of the migration agent’s conduct in circumstances where the applicant to the proceeding was a man of straw: Minister for Immigration & Multicultural Affairs v Shen (2002) 70 ALD 636 ; [2002] FCA 899.
At paragraph [89], the Full Court further added:
We think that the only precondition to the exercise of power would have to be that the non-party has a sufficient connection with the unsuccessful party and the litigation to warrant the court exercising its jurisdiction. The connection between the non-party and the unsuccessful party and the litigation must be material to the question of costs: Vestris v Cashman (1998) 72 SASR 449 at 467 per Lander J…
I note, as the Full Court identified, an order for costs against a non-party is only made in exceptional circumstances. The conduct of Ms RAJASEKARAM in this case was exceptional, both with respect to her client and before this court at the hearing.
It appears to me that it is no answer to the circumstances in this case that Ms RAJASEKARAM lost control of the proceedings once they were issued in this court, given her conduct led to the issuing of the proceedings. It was Ms RAJASEKARAM’s lack of frankness that caused the proceedings to expand: in this sense she was the cause of her losing control of the events.
For the reasons I set out above, with respect to the costs between the applicant and the Minister, I am not persuaded that the enquiries into the conduct of Ms RAJASEKARAM – ultimately demonstrating her fraud – were not so insufficiently connected to the proceedings, as to conclude that they were not costs reasonably incurred in perusing the remedies sought by the applicant. Those costs were caused by the conduct of Ms RAJASEKARAM in this case in circumstances that went well beyond mere negligence.
Similarly, I am not persuaded that it could be said that the Minister had acted unreasonably in not immediately settling the matter, given the circumstances that unfolded, particularly in the absence of the findings with respect to Ms RAJASEKARAM, and indeed, no frank account ever provided from her. Considerable costs would have been avoided, had she given a frank account at the outset of the hearing, despite her inappropriate conduct before then.
I am satisfied that Ms RAJASEKARAM should pay the costs sum sought by the Minister representing the additional costs caused by her conduct in these proceedings. I am not persuaded that it is appropriate that the Minister be left with bringing separate proceedings in this respect, as the costs of those proceedings would be out of proportion to these issues here. Of course, any claim the applicant may have for damages against Ms RAJASEKARAM for breach of duty would need to be pursued elsewhere, just as will be necessary in the case of DUA16.
Referral of the solicitor’s conduct to the relevant professional bodies
The final matter for determination is whether or not the conduct of the solicitor, who is also a registered migration agent, should be referred to the relevant professional bodies for investigation.
Whether the solicitor is able to continue to practice as a solicitor and maintain her registration as a migration agent are not questions for the determination of this court. There are questions for determination by the Victorian Legal Services Commissioner and the Migration Registration Agents Registration Authority. The Minster has noted that the Office of the Migration Agents Registration Authority has been notified of the matter and is investigating the conduct of the solicitor.
There is no evidence as to whether or not the Victorian Legal Services Commissioner has been notified of the matter, nor whether they are investigating the solicitor.
In circumstances where a solicitor has engaged in such dishonest conduct, just as in circumstances where a migration agent may have engaged in such dishonest conduct, it is appropriate, when those facts are demonstrated before the court that the court, refer the papers to the relevant regulatory authorities for their proper consideration and investigation. I therefore make orders accordingly.
CONCLUSION
I am persuaded that in the exceptional circumstances of this case, it is appropriate that the Minister’s costs, to the extent that the Minister seeks them, should be paid by Ms RAJASEKARAM and so order, accordingly.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller . Dated: 30 June 2021
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