CHV17 v Minister for Immigration and Border Protection

[2022] FedCFamC2G 402

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CHV17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 402

File number:

SYG 1673 of 2017

Judgment of:

JUDGE CAMERON

Date of judgment:

25 May 2022 

Catchwords:

MIGRATION – Persecution – unsuccessful review of Immigration Assessment Authority (“IAA”) decision.

COSTS – Application for personal costs order against applicant’s counsel – ss.486E and 486F of the Migration Act 1958 (Cth) – relevant considerations.

Legislation:

Migration Act 1958 (Cth) ss 486E, 486F, 486K

Cases cited:

CHV17 v Minister for Immigration and Border Protection [2021] FCCA 1489

DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120

SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482

SZTMH v Minister for Immigration and Border Protection & Anor [2015] 230 FCR 550

Division:

General Division

Number of paragraphs:

19

Date of hearing:

19 May 2022

Place:

Sydney

Counsel for the Applicant:

No appearance

Counsel for the First Respondent:

Mr B. Kaplan

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

SYG 1673 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHV17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	25 MAY 2022

THE COURT ORDERS THAT:

1.The applicant’s former counsel, Jay Williams, pay the first respondent’s costs of the application in a case filed on 4 May 2021, fixed in the sum of $14,800.

Note:  The form of the order is subject to the entry in the Court’s records.

Note:  The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

1. On 30 May 2017 the applicant filed an application for judicial review of the decision of the Immigration Assessment Authority (“IAA”) dated 3 May 2017 affirming an earlier decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) to not grant him a temporary protection visa.  On 4 May 2021 the applicant filed an application in a case seeking leave to amend the originating application and to file a statement of claim.  On 2 July 2021 the Court found that the proposed amended application lacked reasonable prospects of success, as did the statement of claim which was also found to be unclear.  The application in a case was dismissed and leave to file the proposed statement of claim was refused:  CHV17 v Minister for Immigration and Border Protection [2021] FCCA 1489.

2. On 3 November 2021 the applicant discontinued the proceeding.

3. The Minister has applied under s.486F(1) of the Migration Act 1958 (Cth) (“Act”) for an order that counsel for the applicant, Mr Williams, pay his costs of the application in a case or, in the alternative, his costs of the proceeding as a whole. These reasons concern that application.

4. Mr Williams filed written submissions and did not appear at the hearing of the costs application, advising by email that he did “not wish to be heard”.  In his written submissions dated 1 December 2021 he stated that the applicant terminated his retainer on or about 30 July 2021. 

   LEGISLATION

5. The Act relevantly provides as follows:

   486E   Obligation 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 in the migration litigation; or

   …

   (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.

   …

   486F Costs 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 …

   …

   (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:

   …

   (b)on the application of the party to the migration litigation.

   …

   486K Definitions

   In this Part: 

   migration litigation means a court proceeding in relation to a migration decision. 

   EVIDENCE

6. The Minister read the affidavit of his solicitor, Mr Gao, affirmed 4 March 2022.  Mr Gao deposed that he had calculated the costs incurred by the Minister as at that date in respect of the application in a case at $24,300, inclusive of counsel’s fees and $2,300 for costs thrown away on the preparation of the Minister’s written submissions filed on 8 March 2021, before the application in a case was filed. Mr Gao deposed that after applying a 25% discount, presumably to exclude costs not properly allowable on a party and party assessment, the minimum amount claimable by the Minister in respect of the application in a case was $19,425.

7. Mr Williams did not adduce any evidence.

   CONSIDERATION

8. An order under s 486F may only be made against a person (who need not be a legal practitioner) if he or she has contravened s.486E by:

   (a)encouraging another person to commence or continue migration litigation in a court;

   (b)in circumstances where that litigation has no reasonable prospect of success; and

   (c)the person did not give proper consideration to the migration litigation’s prospects of success.

9. The word “encourage” is potentially of wide import but, as in SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482 at 486-487 [21], there is no real issue that a person other than the applicant, in this case Mr Williams, “encouraged” the applicant as required by s.486E(1) of the Act. He drew the relevant document, propounded it by preparing written submissions in its support and appeared in court to argue for it. By doing so, I find that he encouraged the applicant to continue this proceeding which plainly was a court proceeding in relation to a migration decision.

10. The litigation also had no reasonable prospects of success. It is not necessary in order to determine this application to decide whether “migration litigation” as defined by s.486K includes an interlocutory proceeding or is limited to an action. Here, the terms of the original application were so insubstantial that they could not support a verdict in favour of the applicant and the amendments that Mr Williams advanced on the applicant’s behalf as replacements were found, in effect, to be no better. The relevant terms of those documents were quoted in the First Judgment.

11. The First Judgment’s findings regarding each of the grounds sought to be raised by the proposed amended application were, relevantly:

    Ground 1: misconceived and with no prospects of demonstrating error on the part of the IAA:  at [44];

    Ground 2:misconceived, unsupported by the evidence and with no prospects of demonstrating error on the part of the IAA:  at [47];

    Ground 3:       no realistic prospects of success:  at [50];

    Ground 4:       lacked reasonable prosects of success:  at  [55];

    Ground 5:       no prospects of success:  at [60];

    Ground 6:       could not support the grant of relief sought and served no purpose:  at  [65];

    Ground 7:       futile: at [74];

    Ground 8:could not be made out on the facts and was also an invitation to impermissible merits review:  at [76] and [77] respectively;

    Ground 9:       could not be made out on the facts:  at  [79];

    Ground 10:     no reasonable prospects of success:  at  [81]; and

    Ground 11: not arguable: at [87].

12. Mr Williams has submitted that the reasons in the First Judgment made no finding that grounds 8, 9 and 11 of the proposed amended application lacked prospects of success.  However, that proposition overlooks the fact that the First Judgment stated that the applicant had not demonstrated that the proposed amended application, as a whole, had reasonable prospects of success and, in even firmer findings, specifically held that grounds 8 and 9 could not be made out and that ground 11 was, amongst other things, unarguable.  Mr Williams also raised in his written submissions other matters regarding the arguability of the proposed amended application but they do not alter the outcome of the interlocutory application or the reasons for it.  References to further amendments and an appeal that have not been attempted, and now cannot be, take the matter nowhere.   

13. The question therefore becomes whether Mr Williams failed to give proper consideration to the migration litigation’s prospects of success.  Mr Williams was aware that that was an issue because in his written submissions dated 1 December 2021 he quoted a passage from SZTMH v Minister for Immigration and Border Protection & Anor [2015] 230 FCR 550 at 562 [56] where Rangiah J referred to it. Despite that, Mr Williams did not adduce any evidence that addressed the issue and did not deal further with it in either of his two written submissions.

14. I accept the Minister’s submission that:

    Any legal practitioner representing the applicant, acting competently, would have appreciated the hopeless nature of each of the proposed grounds of review, whether because they were inconsistent with binding authority, provisions of the Act or findings made by the Authority. ….

    What must be inferred, in light of the arguments raised in support of the proposed amended application, to have been a failure on Mr Williams’s part to give proper consideration to whether the proposed amendment had reasonable prospects of success, “tells strongly against an inference that the [applicant] was properly cautioned about the risks inherent in the present proceedings”:  DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120 at [67]-[68]. Consequently, I am satisfied that Mr Williams contravened s.468E of the Act.

15. No reason has been suggested to me as to why, in those circumstances, the applicant should bear the costs of the application in a case.  For instance, Mr Williams has not suggested that he advised the applicant that the application to amend lacked reasonable prospects of success and that the applicant would be likely to face cost consequences as a result.  I find that the responsibility for the interlocutory proceeding in question lies at Mr Williams’s feet, not at the applicant’s.  No argument having been advanced that the Minister would not be entitled to his costs, I find that he is so entitled and that those costs should be paid by Mr Williams.

16. The Minister sought a sum for costs considerably in excess of the amount prescribed by the Court’s event-based scale.  His solicitor, Mr Gao, deposed to the Minister having incurred solicitor and client costs in relation to the application on a case of approximately $24,300, of which he claimed $19,425 as party and party costs.  Calculated in accordance with items 3 and 13(b) of the scale in the Court’s then-rules, the Minister would be entitled to professional fees totalling $2,987 plus counsel’s fees of $4,800, giving an overall total of $7,787.00. 

17. Although I accept Mr Gao’s evidence that the Minister has incurred the costs he cites, absent any particulars of how the $24,300 figure has been reached, I think it likely that party and party costs of the application in a case are considerably lower than has been estimated, particularly as experienced counsel represented the Minister and prepared the written submissions.  Even so, I appreciate that the application in a case would have required some considerable attention.  I conclude that the Minister should have $10,000 for his professional costs of the application in a case and $4,800 for his related disbursements.

18. I have not overlooked the Minister’s application in the alternative for his costs of the proceeding as a whole but Mr Williams cannot be expected to indemnify the Minister for costs incurred at times when he was not involved in the matter.  The Minister needs to look to the applicant, who was not advised of the hearing of this costs application and did not appear, if he wishes to take that aspect of the matter further.

    CONCLUSION

19. Mr Williams will be ordered to pay the Minister $14,800 for his costs of the application in a case filed on 4 May 2021.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       25 May 2022