Minister for Immigration & Multicultural Affairs v Shen - [2002] FCA 899

FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899
COSTS – application for costs against migration agent – applicant in primary proceedings unsuccessful – application for review in this Court filed by migration agent – application of no merit – power of Court to award costs against a non-party – discretionary issues – indemnity costs.
Federal Court of Australia Act 1976 (Cth), s 43
Migration Act 1958 (Cth), ss 276, 280(1), 314
Migration Agents Regulations 1988 (Cth), Schedule 2
Legal Profession Act 1987 (NSW), ss 43E, 48E, 48B
Judiciary Act 1903 (Cth), s 79
He v Minister for Immigration & Multicultural Affairs [2001] FCA 1167, referred to
H v Minister for Immigration & Multicultural Affairs [2002] FCAFC 18, referred to
Knight v F P Special Assets Ltd (1992) 174 CLR 178, applied
Re Sanchez; Ex parte Smits (1994) 49 FCR 326, cited
Yates v Boland & Ors [2000] FCA 1895, referred to
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, referred to
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169, applied
Orchard v South Eastern Electricity Board [1987] QB 565, referred to
Re Wilcox; Ex parte Venture Industries Pty Ltd (No. 2) (1996) 72 FCR 151, applied
Yates Property Corp Pty Ltd v Boland [1997] FCA 760, referred to
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, cited
Myers v Elman [1940] AC 282, referred to
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v HAO RAN SHEN & ANOR
N389 of 2001
MADGWICK J
19 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N389 of 2001

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANT

AND:

HAO RAN SHEN
FIRST RESPONDENT

GLOBAL TIME GROUP PTY LTD
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

19 JULY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The notice of motion dated 21 August 2001 be allowed.
2.The first respondent pay 40% of the applicant’s costs of proceedings N389 of 2001 and the applicant’s costs of the notice of motion dated 21 August 2001 on a party and party basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N389 of 2001

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANT

AND:

HAO RAN SHEN
FIRST RESPONDENT

GLOBAL TIME GROUP PTY LTD
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE:

19 JULY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
HIS HONOUR:

In this matter the applicant Minister seeks an order that the first respondent, Mr Shen, a registered migration agent, pay the Minister’s costs of proceeding N389 of 2001 and the Minister’s costs of this application, and/or that the second respondent, Global Time Group Pty Ltd (“Global”), a company which provided migration agent services and of which Mr Shen is a director,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 899
Decision Date: 19 JULY 2002

CaseChat Overview and Summary

The case of Minister for Immigration & Multicultural Affairs v Shen involves the Minister for Immigration and Multicultural Affairs seeking costs from Mr Shen, a registered migration agent, and Global Time Group Pty Ltd, a company providing migration agent services of which Mr Shen is a director. The application arose from an unsuccessful judicial review of a decision by the Refugee Review Tribunal. The Minister's application for costs was filed following the dismissal of the principal proceedings, and leave was granted for the Minister to apply for costs against the respondents. The primary legal issue before the court was whether Mr Shen and Global were liable for the costs of the unsuccessful application for judicial review and the Minister's costs of the application for costs.

The court found that Mr Shen and Global were liable for the costs. The court reasoned that Mr Shen, despite having knowledge that the application for review had no prospects of success, did not advise Mr He against lodging the application and failed to obtain the required written acknowledgment from Mr He. This conduct was in breach of the Migration Agents Code of Conduct, which mandates that a migration agent must not encourage a client to lodge an application that is vexatious or grossly unfounded, and must advise the client of the same, obtaining written acknowledgment if the client still wishes to proceed. The court held that Mr Shen and Global were liable for the costs due to their failure to comply with the Code and their involvement in the filing of a hopeless application. Consequently, the court ordered that the first respondent, Mr Shen, pay 40% of the applicant's costs of the principal proceedings and the applicant's costs of the notice of motion on a party and party basis.

Orders

Orders of the court

1. The notice of motion dated 21 August 2001 be allowed.

2. The first respondent pay 40% of the applicant’s costs of proceedings N389 of 2001 and the applicant’s costs of the notice of motion dated 21 August 2001 on a party and party basis.

Background

Background to the litigation

In this matter the applicant Minister seeks an order that the first respondent, Mr Shen, a registered migration agent, pay the Minister’s costs of proceeding N389 of 2001 and the Minister’s costs of this application, and/or that the second respondent, Global Time Group Pty Ltd (“Global”), a company which provided migration agent services and of which Mr Shen is a director, pay those costs. Mr Shen appeared personally. He was also granted leave to appear as an agent of Global.Background The notice of motion arose from the respondents’ involvement in an unsuccessful application for judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”). In the principal proceedings (N389 of 2001), Mr He, the applicant in that matter, unsuccessfully sought review of a decision of the Tribunal which affirmed the decision not to grant him a protection visa: see He v Minister for Immigration & Multicultural Affairs [2001] FCA 1167. The application for review was hopeless. Judgment was given against him on 9 August 2001. On that date, leave was granted to the Minister to make an application for costs against the present respondents. The Minister’s application was filed on 21 August 2001. Although Mr He had represented himself in the proceedings before me, his application for review was filed by Global. On the application form, Mr Shen’s name appeared as the individual who filed the document with the NSW District Registry of the Federal Court. The evidence of Mr Shen was that he attended upon Mr He, on 11 April 2001, at the Villawood Immigration Detention Centre after being approached by members of Mr He’s family in Melbourne to provide assistance for reward. At the detention centre, Mr Shen discussed the decision of the Tribunal with Mr He and informed him that he did not believe that there was any reviewable error in the Tribunal’s decision. Despite this, Mr He entered into a service agreement with Global for it to act as his migration agent and he signed a “Clause 2.17(b) Notice” which stated that he had been informed by Global that his application had no prospects of success and, knowing this, he still wished to proceed. Mr Shen filled in the application to the Court for review of the Tribunal’s decision, explained what was written in the application and had Mr He sign it. Mr Shen then filed the application for review in the Registry on 12 April 2001. No legal advice was sought prior to the filing of the application. As at the date the application was filed, 12 days had passed from the date of the Tribunal’s decision; Mr He had 28 days to file an application for review from the deemed time he was notified of the Tribunal’s decision, namely 9 April 2001: the legislative scheme that indicates this result was discussed in H v Minister for Immigration & Multicultural Affairs [2002] FCAFC 18. Upon the filing of the application in the Court, Mr He was given access to the NSW pilot legal advice scheme funded by the applicant Minister’s Department. Pursuant to that scheme, Mr He was put in touch with counsel who, following discussions with Mr He and upon consideration of the court book of relevant documents prepared by the Minister’s solicitors and filed in the Court, provided him with legal advice but did not offer to represent Mr He at the hearing. Mr Shen’s evidence was that Mr He contacted him and informed him that counsel would not represent him. At that point, Mr Shen became aware that the advice provided to Mr He by counsel was that there was no basis for establishing legal error on the part of the Tribunal. Mr Shen suggested to Mr He that an adjournment of the hearing be sought. Mr He instructed Mr Shen to seek an adjournment and the latter accordingly wrote to the Court on 26 June 2001 requesting an adjournment of the hearing date of 28 June 2001. The application for adjournment was heard on 28 June 2001, when Mr He represented himself. I granted the adjournment because Mr He claimed to have only become aware, not long before the hearing, that counsel would not appear and he said that he wished to obtain financial assistance from his parents in China in order obtain other legal representation. At the later substantive hearing, on 9 August 2001, Mr He was again unrepresented, and as noted earlier, Mr He’s application was dismissed.Relevant legislation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

The relevant provisions of the Migration Act 1958 (Cth) (“the Migration Act”) concerning the provision of immigration assistance were:“276(1)For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:(a)preparing or helping to prepare, the visa application or cancellation review application; or(b)advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.(2)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:(a)preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or(b)advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or(c)representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.(3)Despite subsections (1) and (2), a person does not give immigration assistance if he or she merely:(a)does clerical work to prepare (or help prepare) an application or other document; or(b)provides translation or interpretation services to help prepare and application or other document; or(c)advises another person that the other person must apply for a visa; or(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.”Section 280(1) prohibits the giving of immigration assistance by a person who is not a registered migration agent. Section 314 of the Migration Act provides for the making of a Code of Conduct (“the Code”) for migration agents and subs (2) requires that a registered agent must conduct himself or herself in accordance with the Code. The Migration Agents Registration Authority established under the Act, has the power to caution, cancel or suspend the registration of an agent for failing to comply with the Code: s 303(h). The Code, which is in Schedule 2 to the Migration Agents Regulations 1988 (Cth), relevantly provides:“1.9The Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in light of this principle.…2.1A migration agent must always:(a) act in accordance with the law and the legitimate interests of his or her client…2.17If 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) the agent:(a)must not encourage the client to lodge the application; and(b)must advise the client that, in the agent’s opinion, the application is vexatious or grossly unfounded; and(c)if the client wishes to lodge the application – must obtain written acknowledgment from the client of the advice given under paragraph (b).” (emphasis added)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N389 of 2001

BETWEEN:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS APPLICANT
AND:	HAO RAN SHEN FIRST RESPONDENT GLOBAL TIME GROUP PTY LTD SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	19 JULY 2002
WHERE MADE:	SYDNEY

JUDGE:	MADGWICK J
DATE:	19 JULY 2002
PLACE:	SYDNEY