Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 138
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138
File number(s): MLG 1378 of 2020 Judgment of: JUDGE LAING Date of judgment: 22 February 2024 Catchwords: MIGRATION – reinstatement application – application for judicial review of a decision by the Administrative Appeals Tribunal – allegations against solicitor – proposed substantive grounds of review found to be insufficiently meritorious to warrant reinstatement – application dismissed – costs ordered against solicitor Legislation: Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 17.05, 22.06
Migration Act 1958 (Cth) ss 357A, 359A, 486E, 486F, 486G, 486I
Migration Regulations 1994 (Cth) Sch 2, cl 187.233
Cases cited: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366; (2006) 155 FCR 482
Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 22 June, 15 September & 18 December 2023 Place: Sydney Appearing for the Applicant: In person Counsel for the First Respondent: Ms N Campbell Solicitor for the First Respondent: MinterEllison Second Respondent: Submitting appearance, save as to costs Appearing for Other: Mr I Warraich ORDERS
MLG 1378 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD AREEB SHAHZAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Order 3 made on 27 February 2023 be vacated.
2.It instead be ordered that Mr Imran Warraich (Mr Warraich) pay the first respondent’s costs of the proceedings up to the time that orders were made on 27 February 2023, in an amount not exceeding $5,900.
3.The Application in a Proceeding filed on 12 April 2023 otherwise be dismissed.
4.Mr Warraich pay the first respondent’s costs of the proceedings following the date and time stated under Order 2.
5.A copy of the Reasons for Judgment be provided to a Registrar of this Court for referral to the Victorian Legal Services Board.
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 LAING:
Before the Court is an Application in a Proceeding filed on 12 April 2023 (Reinstatement Application) seeking to set aside orders made on 27 February 2023 dismissing an application for judicial review (Substantive Application) on the basis of non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
The Substantive Application had sought review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (Delegate), by which the Delegate had refused to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (187 visa).
BACKGROUND
The applicant applied for the 187 visa on the basis of a nomination lodged by his proposed employer, The Trustee for Rossetto Family Trust (Proposed Employer).
The Delegate refused the visa application on 21 August 2019. The Delegate observed that the nomination referred to in cl 187.233(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had been refused. The Delegate therefore found that the applicant was unable to meet cl 187.233(3), which required the nomination to have been approved.
On 31 August 2019, the applicant applied for review of the Delegate’s decision by the Tribunal.
The applicant attended a hearing before the Tribunal on 12 March 2020.
On 23 March 2020, the Tribunal affirmed the Delegate’s decision.
RELEVANT CRITERION
The criterion at issue before the Tribunal was cl 187.233 of Schedule 2 to the Regulations, which provided:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[7] of its decision, before setting out the criterion in issue at [9]-[11].
At [12]-[15], the Tribunal reasoned:
12.During the hearing the Tribunal explained that one of the criteria for the grant of the visa is that the position to which the application relates has been approved, has not subsequently been withdrawn and is still available to the applicant. As recorded in the primary decision, a copy of which was provided to the Tribunal, this position nomination is no longer available to him as the nomination lodged by ‘THE TRUSTEE FOR ROSSETTO FAMILY TRUST’ was refused on 22 July 2019.
13.Invited to make any submissions the applicant said he found out the nomination was refused from the Department. He talked to the agent who said the reason was because the applicant was not already working there. His paperwork was 100% ready and his only option was to appeal himself because his employer was not interested in appealing. The applicant said he wants to start work with the sponsor because he is a genuine person. He is not working now but sometimes does casual security work as a sub-contractor.
14.Asked if he agreed that the nomination for the occupation of ‘Motor Mechanic (General)’ with ‘THE TRUSTEE FOR ROSSETTO FAMILY TRUST’ was no longer available to him, the applicant said yes but he believes the sponsor will let him start work if the nomination is approved.
15.Based on the information before it in the primary decision and the applicant’s evidence the Tribunal finds that the applicant is not the subject of an approved nomination.
On this basis, the Tribunal concluded that the applicant could not meet cl 187.233(3) of Schedule 2 to the Regulations. Accordingly, it affirmed the Delegate’s decision (at [16]-[18]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court through an application filed on 27 April 2020. The following was stated under the heading “Grounds of application” (reproduced verbatim):
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
2.The Administrative Appeals Tribunal member failed to consider all the aspects of the appeal and observe principles of natural justice.
(a).In considering whether the visa applicant met the visa grant criteria required by the regulations, the tribunal member failed to fully consider the fully consider the fact that the circumstances of the case were beyond the applicant’s control.
(b).The visa applicant was not at fault and yet was affected by exceptional circumstances
The matter was listed for hearing on 27 February 2023, of which the parties were notified by email sent on 4 January 2023. Despite this and correspondence subsequently being sent on behalf of the Minister reminding the applicant of the scheduled hearing, he did not attend. The matter was accordingly dismissed pursuant to rule 13.06(1)(c) of the Rules.
REINSTATEMENT APPLICATION
On 12 April 2023, the Reinstatement Application was filed.
The Reinstatement Application was listed for hearing on 22 June 2023.
Relevant principles
The power to set aside orders made in the absence of a party is contained in r 17.05(2)(a) of the Rules.
The principles regarding reinstatement are fairly well settled. The Court generally considers at least three matters (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15) at [4]):
(a)whether there was a reasonable excuse for non-attendance at the hearing in which the proceedings were dismissed;
(b)any prejudice; and
(c)whether the applicant has reasonably arguable prospects of success on the substantive application.
Explanation for non-appearance
Prior to the hearing on 22 June 2023, an affidavit of the applicant dated 11 April 2023 (Second Shahzad Affidavit) was filed which stated that the applicant’s “lawyer also couldn’t attend the final hearing” due to reasons “best known to him” that could be explained in “separate and independent submissions”. The affidavit also referred generally to “unavoidable circumstances not under [the applicant’s] subjective control” and to struggles with personal circumstances such as career issues. However, no further detail was provided in this regard in the affidavit.
At the hearing, the applicant submitted that he had paid a lawyer who had promised that he would attend Court on his behalf and told him that there was no need for him to attend Court. The applicant informed the Court that he only found out after the hearing that no one had attended on his behalf. The applicant claimed that he was subsequently told by the lawyer that this was because his case was not strong enough, and that the lawyer would file his case before “a Full Bench”. The applicant identified the lawyer in question as Mr Imran Warraich. The applicant asked for the opportunity to put further material before the Court, including documentary evidence, in support of the Reinstatement Application.
I was initially disinclined to grant the applicant this opportunity. This was in circumstances where it did not seem to me that the explanation, even if accepted, would be sufficient to warrant reinstatement in circumstances where I was not persuaded regarding the merits of the underlying application.
However, the applicant had also sought an adjournment to seek alternative legal advice. This was in circumstances where he appeared to contend that he had been unfairly disadvantaged by the legal advice that he had previously received in preparing for the hearing. It seemed that not allowing the applicant some further opportunity to consider his position and obtain alternative advice may, in these circumstances, raise a procedural fairness issue. Further, the applicant’s contentions appeared to be potentially relevant to the second order sought through the Reinstatement Application, which sought to disturb the costs order that had previously been made against the applicant. The parties’ contentions potentially required consideration of ss 486E and 486F of the Migration Act 1958 (Cth) (Act), in respect of which I considered that Mr Warraich ought to be given the opportunity to be heard on prospects. In the particular circumstances of this case, I therefore made the following orders at a directions hearing listed on 30 June 2023:
THE COURT ORDERS THAT:
1.The applicant has leave to file and serve by 28 July 2023 upon the first respondent and Mr Imran Warraich (Mr Warraich) any affidavit evidence and submissions upon which he wishes to rely regarding his contentions that Mr Warraich was engaged by him to appear in these proceedings but then without prior notice did not appear at the hearing on 27 February 2023, and/or otherwise acted inappropriately in relation to these proceedings.
2.The first respondent and Mr Warraich have leave to file and serve any evidence and submissions upon which they wish to rely in response by 18 August 2023.
3.If Mr Warraich wishes to be heard on the allegations made in relation to him, he is to notify the Court of this by 18 August 2023 by email directed to [email protected].
4.The applicant, and separately the first respondent, serve a copy of these orders upon Mr Warraich by 7 July 2023.
5.The hearing of the reinstatement application and any question of costs be listed on 15 September 2023 at 10am.
6. The parties and Mr Warraich have liberty to apply on two days’ notice.
THE COURT NOTES THAT:
At the resumed hearing of this matter the Court will hear from the parties, and from any other person who seeks and is granted leave to appear, whether or not it is appropriate to order (a) that any of the costs of the proceedings be paid by Mr Warraich including by reference to rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); and/or (b) that a copy of the reasons for judgment in this matter be referred to the Victorian Legal Service Board or any other regulatory authority.
These orders were made after explaining to the applicant the potential consequences of putting his communications with his lawyer before the Court, including waiver of legal professional privilege. It was also explained that the adjournment would provide the applicant with an opportunity to seek legal advice from another practitioner, should he wish to do so.
At the resumed hearing on 15 September 2023, the parties and Mr Warraich appeared. This occurred remotely, as it was a Melbourne matter that had been listed in Sydney. At the hearing, the effect of ss 486E-F of the Act and rule 22.06 of the Rules was discussed. It was confirmed that Mr Warraich had received the Minister’s written submissions filed on 18 August 2023 and the applicant’s affidavit regarding his alleged conduct dated 26 July 2023 (Third Shahzad Affidavit) (although parts of the annexures were illegible). After some difficulty with annexures was resolved over the course of the hearing, Mr Warraich relied upon an affidavit he had made on 18 August 2023 (First Warraich Affidavit) (of which the parties had been given limited notice). The applicant and Mr Warraich’s affidavits were read, with some parts excluded as inadmissible opinion evidence. The applicant was allowed (without objection) to give oral evidence, in which he made additional allegations regarding Mr Warraich’s conduct in relation to the filing of the Substantive Application and supporting affidavit in these proceedings in 2020. The applicant sought an opportunity to put further documentary evidence in this regard before the Court and, potentially, in relation to the annexures to his affidavit that were illegible.
Due to the above issues, it was agreed that the matter would need to be adjourned for further hearing on 18 December 2023. By the time of the resumed hearing, further affidavits were relied upon by the applicant dated 28 September 2023 (Fourth Shahzad Affidavit) and Mr Warraich dated 16 November 2023 (Second Warraich Affidavit). Those affidavits were read (with some paragraphs of Mr Warraich’s evidence excluded according to the opinion rule). At the commencement of the hearing, I went through the material before the Court to allow those present to identify any material that they may not have seen and may need to have provided. Nothing of this nature was identified.
I consider below, under a separate section of the judgment, the allegations made in relation to Mr Warraich’s conduct generally in these proceedings. For the reasons given in that section, I accept that the applicant’s non-appearance at the hearing on 27 February 2023 and delay in applying for reinstatement until 12 April 2023 were influenced by the conduct of Mr Warraich. I am therefore persuaded that the applicant has an acceptable explanation for his non-appearance, which weighs in favour of his application for reinstatement.
Prejudice
The Minister does not identify any prejudice that is specific to this case, beyond being put to the burden and cost of additional litigation in respect of a matter he contends is unmeritorious. I will consider the merits of the application further below.
I do not find that the issue of prejudice meaningfully weighs against reinstatement.
Merits
The grounds relied upon in the applicant’s Substantive Application are set out above. Ground 1 was an unparticularised assertion of jurisdictional error. At the hearing of this matter on 22 June 2023, the applicant confirmed that this ground was intended to be read together with ground 2, which explained why it was contended that the Tribunal’s decision was affected by jurisdictional error.
Ground 2 contended that the Tribunal failed to consider all aspects of the case. The ground as pleaded did not identify what aspects of the case were not considered, other than to state that the Tribunal failed to “fully consider the fact that the circumstances of the case were beyond the applicant’s control”. Relatedly, the ground contended that the applicant “was not at fault and yet was affected by exceptional circumstances”.
At the hearing on 22 June 2023, the applicant stated that he felt it was unfair for his visa application to have been refused when he had no control over whether or not his employer’s nomination was approved. The applicant explained that he had been waiting for approval of the nomination and had been in Melbourne for that purpose.
I have some sympathy for the applicant’s position. However, the difficulty for the applicant is that his Proposed Employer did not seek review of the nomination refusal. In these circumstances, he was not the subject of an approved nomination. Even if the applicant were “not at fault” and affected by “exceptional circumstances” that were beyond his control, such matters were incapable of affecting whether or not he was able to meet cl 187.233(3) of Schedule 2 to the Regulations. That criterion was an objective criterion for the grant of the visa. It turned on whether or not the relevant nomination had been approved. The Tribunal had no power to waive it, whether or not the applicant was affected by exceptional circumstances that were beyond his control and even if those circumstances were not his fault. It follows that the Tribunal did not relevantly err by not considering such matters in its assessment of whether the applicant met cl 187.233(3).
Ground 2 also expressed that the Tribunal did not “observe principles of natural justice”. However, the Tribunal’s obligations in this regard were limited under Part 5 of the Act: s 357A. The Tribunal invited the applicant to a hearing under s 360 of the Act. He attended that hearing, having been on notice from the Delegate’s decision of the issue on the review i.e. his ability to meet cl 187.233(3) in circumstances where the nomination he had relied upon had been refused. It is apparent from [12]-[14] of the Tribunal’s decision that the applicant was given an opportunity to address that issue. On the evidence, there was no material before the Tribunal capable of enlivening s 359A of the Act. Nor is any other basis apparent for finding that the applicant was relevantly denied procedural fairness.
It follows that ground 2 does not identify any reasonably arguable basis for finding jurisdictional error in the Tribunal’s decision.
Conclusion on Reinstatement Application
As considered above, there are features of this matter that weigh in favour of reinstatement. They include the applicant’s explanation for non-appearance and the lack of any specific prejudice being contended by the Minister.
However, ultimately, I am not persuaded that reinstatement should occur in circumstances where the proposed Substantive Application appears to be lacking in merit to the extent that it has no reasonable prospect of success. Having reviewed the materials, I have not identified any arguable basis for setting aside the decision of the Tribunal that might have reasonable prospects of success. No such ground has been identified by the applicant. As was stated in CAL15, it “is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful”.
For these reasons, the Reinstatement Application, insofar as it seeks reinstatement of the applicant’s Substantive Application, will be dismissed.
ALLEGATIONS REGARDING MR WARRAICH’S CONDUCT
A number of troubling allegations have been made in relation to Mr Warraich’s conduct in this matter.
The applicant relied upon the following affidavits, as well as oral evidence given at the hearing on 15 September 2023:
(a)an affidavit filed on 27 April 2020 (First Shahzad Affidavit);
(b)the Second Shahzad Affidavit;
(c)the Third Shahzad Affidavit; and
(d)the Fourth Shahzad Affidavit.
Mr Warraich relied upon the First Warraich Affidavit and the Second Warraich Affidavit, as well as oral evidence that he was permitted to give at the hearing on 18 December 2023.
Involvement with the Substantive Application and supporting documents
The applicant gave oral evidence that he had relied upon Mr Warraich to draft all of his documents, as he had “no idea” how to draft the documents himself. He said that this included his Substantive Application filed on 27 April 2020, which he claimed had also been lodged by Mr Warraich.
In support of his contentions that Mr Warraich had drafted and lodged the Substantive Application, the applicant relied upon various annexures to the Fourth Shahzad Affidavit. Annexure 37 is an email sent by the applicant to Mr Warraich on 24 April 2020 which appears to have forwarded notification of the Tribunal decision (although the full annexures have not been provided). Annexure 36 records a payment of $500 that was apparently made to Mr Warraich on 26 April 2020. The part of the associated descriptive message that is able to be seen states “For federal review applicat…”. Annexure 38 is an email from the applicant to Mr Warraich on 26 April 2020 entitled “Signature documents and payment receipt”. The annexures are not entirely clear but appear to have included three related jpg images. Annexure 39 is an email sent from Mr Warraich to the applicant on 27 April 2020 at 11:09 pm stating “Please sign, scan and return”, which appears to have related to a fee exemption form. Annexure 40 is an email from Mr Warraich to the applicant on 30 April 2020, the day after the application and supporting affidavit were accepted for filing, apparently attaching the filed documents. The supporting affidavit (the First Shahzad Affidavit) was signed by Mr Warraich as a witness.
Mr Warraich disputed that he had filed the originating documents and that he had drafted the grounds relied upon. He contended that the applicant had lodged the application himself. In the First Warraich Affidavit at [2] Mr Warraich observed that he did not sign any certificate under s 486I of the Act certifying prospects. That provision of the Act relevantly states:
Lawyer's certification
(1)A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2)A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
At [9] to [11] of the First Warraich Affidavit, he described his role as follows:
9.At the very outset, I need to affirm that I have never been appointed as legal representative by the Applicant in these judicial review proceedings. There is no agreement or retainer to represent the Applicant in these judicial review proceedings. I have never submitted any notice of address of service in these proceedings.
10.I never made any kind of correspondence with the Federal Circuit Court of Australia about the legal representation and attendance of the hearings. As evident from the whole chronology of the filings, I have not lodged any notice of address of service throughout the process.
11.I just guided the Applicant about the mechanical process of lodgement and filings without giving him any legal advice or about the prospects of judicial review success in this matter. I just assisted the Applicant to get the visa applications lodged to remain lawful in Australia after the sealing of Federal Circuit Court documents. I told the Applicant that you may appear by self and can represent your case.
At [14] of that affidavit, it is stated:
14.I told the Application at the very outset that there is no legal basis of filing of this judicial review as there is no jurisdictional error in the matter. I told him that his judicial review Application would not be successful being devoid of any legal basis and jurisdictional error.
In oral evidence, Mr Warraich sought to justify his role as providing “general guidance” in relation to the commencement of judicial review proceedings. He accepted that he “assisted” with drafting the Substantive Application and accompanying affidavit. However, he said that he did not draft the grounds of the application and suggested the applicant may have taken “instructions or guidance from different people and from the generic people from the court staff”, or the internet.
Having regard to the above, I accept the applicant’s evidence that Mr Warraich played a substantial role in drafting and arranging for the filing of the Substantive Application and supporting documents. This is consistent with Mr Warraich’s involvement in the drafting of later documents in relation to this matter, which is considered below. It is not apparent why the applicant would have engaged Mr Warraich simply to draft the non-substantive parts of the application, if he had some other person or source of information assisting with drafting of the substantive parts. It is also unclear why Mr Warraich would have emailed the filed documents to the applicant the day after they were filed, if the applicant had attended to their filing. Mr Warraich’s email to the applicant regarding the associated fee exemption form simply asked that this be signed, scanned and returned by the applicant (and not independently provided to the Registry). In my view, whilst the documentary evidence does not seem to be entirely complete, it provides greater support for the applicant’s version of what happened.
In so finding, I do not need to conclude that Mr Warraich gave evidence dishonestly, as was put to him by the Minister’s representative. There are other possible reasons why Mr Warraich may not accurately recall his involvement in a matter some years previously.
Even if Mr Warraich did not personally lodge the Substantive Application and supporting material, I accept that he played a substantial role in their drafting and submission.
Mr Warraich’s involvement after the filing of the Substantive Application and up to the filing of the Reinstatement Application
It is apparent from the annexures to the First Warraich Affidavit that the applicant forwarded Mr Warraich various correspondence that he received in relation to the proceedings.
The applicant gave evidence that Mr Warraich drafted the Reinstatement Application, before sending it to him for his signature and subsequently lodging it. He gave evidence that Mr Warraich also played a substantial role in the drafting of the supporting affidavit. The applicant relied upon material annexed to the Third Shahzad Affidavit and the Fourth Shahzad Affidavit. Whilst some images are not entirely clear, they appear to show (inter alia) the following messages:
(a)A screenshot sent by the applicant showing payment to Mr Warraich of $500 on 25 January 2023 (Annexure 3 to the Third Shahzad Affidavit, Screenshot No 1).
(b)On 26 February 2023 (the day before the matter was dismissed for non-appearance), the applicant messaged Mr Warraich stating: “Please call me, we have a hearing in the morning. I need to talk to you”. Mr Warraich responded that he would call that evening (Annexures 74 to 75 to the Fourth Shahzad Affidavit).
(c)On 27 February 2023, after the matter was dismissed for non-appearance, Mr Warraich messaged the applicant stating: “Orders received. Now I do prepare appeal. Call you around 4 pm and discuss. We will get ample time. Thanks” (Annexure 75 to the Fourth Shahzad Affidavit).
(d)The applicant then messaged Mr Warraich upon receipt of a letter from the Minister’s solicitors on 28 February 2023 notifying him of the Court’s orders to dismiss his application for nonappearance (Annexure 3 to the Third Shahzad Affidavit, Screenshot No 2).
(e)In relation to an image of this letter, the applicant asked Mr Warraich: “Why you did not attend hearing?... I got this today”. In response, Mr Warraich replied “no worries … your appeal is ready … we lodge tomorrow… call you at 7 pm” (Annexure 3 to the Third Shahzad Affidavit, Screenshot No 3).
(f)Then, after some messages concerning the applicant’s visa situation, Mr Warraich appears to have sent the applicant a financial hardship form and draft Notice of Appeal, stating “i explain you in the morning all again” (Annexure 4 to the Third Shahzad Affidavit, Screenshot No 5). This is consistent with other messages sent by Mr Warraich, which referred to paperwork in this regard being ready for signature. This was in the context of reassurances given by Mr Warraich regarding obtaining a visa for the applicant related to his Court proceedings (Annexures 76 to 82 to the Fourth Shahzad Affidavit).
(g)The applicant then, upon discovering that his visa had expired, engaged in some rather distressed sounding correspondence with Mr Warraich regarding how this had occurred. After some correspondence in this regard, Mr Warraich stated (inter alia) “we have lodged court documents… so you are not illegal…”. What follows is the applicant chasing evidence of the sealed documents and discussions regarding the applicant’s visa situation (Annexures 5 to 9 to the Third Shahzad Affidavit, Screenshots No 9 to 26). From these and associated messages, there appear to have been some issues regarding filing the Notice of Appeal. These were sought to be remedied through the applicant attending the Federal Court Registry with the papers (Annexures 12 to 14 to the Third Shahzad Affidavit).
(h)Similar correspondence appears to have been engaged in between Mr Warraich and the applicant’s brother (Annexures 5 to 7 of the Fourth Shahzad Affidavit). That correspondence additionally included messages from Mr Warraich stating to the applicant’s brother on 4 April 2023: “I lodged his paperwork in time. He has no case. I made four applications, still waiting…” (Annexure 5); “… Actually he has no case to pursue as there is no nomination approved behind. i tried out of the way to help him but unfortunately ended up being stuck…” (Annexure 7); “you keep blaming even i didn’t not charge him as people do. i helped him out of way. i did multiple applications to get out of this and one is still pending. i told him about all and sent him to court as well” (Annexure 8); and “i m also preparing one more application in a case and affidavit as advised by the court” (Annexure 9).
(i)After correspondence regarding the visa situation, including in which the applicant’s brother stated that the applicant had trusted Mr Warraich and accused Mr Warraich of “push[ing]” the applicant to conditions he could not return from, Mr Warraich, significantly, appears to have sent the brother a message on or around 4 April 2023 stating (at Annexures 15 to 16 to the Fourth Shahzad Affidavit):
This matter has no merits. just securing time to get some other visa. i advised him multiple times. most people do during court cases. so please try to understand. don’t blame me of the visas episode of Areeb. thanks
There is a dispute regarding whether Mr Warraich told the applicant that he would attend the hearing on 27 February 2023, at which the matter was dismissed for non-appearance. I do not consider it necessary to resolve this dispute. Even if there was some misunderstanding regarding the scope of Mr Warraich’s role, that is because the scope of his involvement does not appear to have been adequately defined. I accept the Minister’s submission that, at least, the communications indicated that the applicant was labouring under the understanding that Mr Warraich would or may be attending the hearing on his behalf. I accept that this influenced the applicant’s non-appearance at the hearing on 27 February 2023, at which his substantive application was dismissed.
It is unclear why any attempt was made to file an appeal with the Federal Court. Mr Warraich confirmed that he considered that such an appeal had no merit but gave evidence that he sought to lodge the appeal because he had been “pushed” to do so by the applicant.
In any event, the Reinstatement Application and a supporting affidavit (the Second Shahzad Affidavit) were filed with this Court on 12 April 2023. In oral evidence, Mr Warraich contended: “They prepared and gave the applications. I just do the applications lodgements, just the mechanical process. I – I’m not doing any legal things.” Mr Warraich accepted that he had lodged the Reinstatement Application. He denied providing “advice” as opposed to “assistance” in relation to the application. Mr Warraich accepted that he considered and told the applicant that his case had no merit.
In contrast, as noted above, the applicant contended that Mr Warraich played a substantial role in drafting and then lodging the Reinstatement Application and supporting affidavit.
I accept the applicant’s evidence on this point. The applicant’s evidence that Mr Warraich was generally the person who prepared the court applications is consistent with much of the written material. That material evidences Mr Warraich informing the applicant that he would “prepare appeal”, that he “did multiple applications” and that he was “preparing one more application in a case and affidavit as advised by the court”. Mr Warraich confirmed in cross examination that the “application in a case” was the Reinstatement Application, which was filed on 12 April 2023 (around a week after Mr Warraich had sent a message saying he was “preparing” it).
Further, it is clear that this was done with an understanding that its purpose was not to advance proceedings with any reasonable prospect of achieving the relief sought (ultimately, orders setting aside the Tribunal’s decision and requiring its redetermination). Rather, the purpose at all times appears to have been advancement of the applicant’s ability to remain in Australia on visas associated with the perpetuation of legal proceedings. It is clear that Mr Warraich understood that this was the purpose of the proceedings, whether or not he explicitly advised the applicant to pursue such a purpose.
After the Reinstatement Application was filed
On 2 June 2023, the applicant messaged Mr Warraich stating: “I have got hearing date on 22nd of june 2023, can you tell me what to do next? You said me you gona call but you didn’t”. Mr Warraich responded that it would be discussed (Annexure 9 to the Third Shahzad Affidavit, Screenshot No 26).
On 21 and 22 June 2023, the applicant and Mr Warraich discussed the hearing of the Reinstatement Application via messages. On 22 June 2023, the applicant asked Mr Warraich if he would be attending the hearing, stating: “…. Are you gona attend my court hearing today or not?”. Mr Warraich replied: “it’s online through microsoft teams, I let you know by 1.30 pm today. thanks. I let you know what’s best for you.”. The applicant responded: “Yea I know it’s online, that’s what I’m asking, are you gona attend or not?... You didn’t even call me back during whole time period”. Mr Warraich responded: “this is an application to reinstate your previous file. so attend and tell them that you were unable to attend the hearing last time and request for one more chance to submit your case. if i attend then they will dismiss on legal grounds that you have no case. As you know your case has no merits. so attend and ask them that you need legal advice and reinstate your application… thanks… And i’m overseas on holidays as well.” (Annexures 9 to 10 to the Third Shahzad Affidavit, Screenshots No 27 to 29).
THE QUESTION OF COSTS
There is some overlap between the considerations applicable to costs and the question of reinstatement in this case. This is because the Minister contends, and I have accepted above, that the proceedings lacked any reasonable prospect(s) of success.
Relevant legislation
Section 486E of the Act states:
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 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.
Section 486F relevantly provides:
Cost 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.
Section 486G requires that the person against whom an order under s 486F is contemplated be given reasonable opportunity to argue why the order should not be made.
The above legislation reflects important public policy considerations. They include the fact that unmeritorious applications made without proper consideration of prospects, or for ulterior purposes, have the potential to utilise resources that may otherwise be allocated to other matters. This can impede access to justice for genuine applications that have reasonable prospects of success. Such consequences are in addition to the resources expended by respondents in responding to improperly pursued applications. In migration proceedings, such resources are generally funded by the public.
Rule 22.06 of the Rules additionally provides:
Order for costs against lawyer
(1)The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away
because of undue delay, negligence, improper conduct or other misconduct or default
(2)A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any other act necessary for the hearing to proceed.
(3) An order for costs against a lawyer may be made:
(a) on the initiative of the Court or Registrar; or
(b) on application by a party to the proceeding; or
(c) by another person who has incurred the costs or costs thrown away.
(4) The order may provide:
(a)that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b)that the lawyer pay the costs, or part of the costs, incurred by the other person; or
(c)that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5) Before making an order for costs, the Court or Registrar:
(a)must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b)may order that notice of the order, or of any proceeding against the lawyer, be given to a party for whom the lawyer may be acting or any other person.
Consideration
I have found above that the substantive proceedings before the Court lacked any reasonable prospect of success. I am therefore required to consider, pursuant to s 486F(2) of the Act, whether a costs order ought to be made under s 486F.
I accept the Minister’s submission that Mr Warraich encouraged the applicant to commence and continue migration litigation in this Court and that the purpose of commencing and continuing the migration litigation was unrelated to the objectives which the Court process is designed to achieve.
I have found above that Mr Warraich played a significant role in the drafting and filing of both the Substantive Application and the Reinstatement Application. I accept that the applicant substantially relied upon Mr Warraich in relation to these activities, as the applicant was relying upon Mr Warraich in relation to his visa situation. It is apparent from the evidence considered above that Mr Warraich encouraged both the commencement and perpetuation of the proceedings. Much of this encouragement occurred in writing, as has been set out above.
As was found in SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366; (2006) 155 FCR 482 at [21] per Moore J, the word “encourage” is “potentially of wide import”. In Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75, Katzmann J considered at [37]-[38]:
37.In the absence of a statutory definition, the ordinary meaning of the word should apply, subject to any considerations of context and purpose that might indicate otherwise. The verb “encourage” is defined in the Macquarie Dictionary (4th ed, Macquarie Library, 2005) at p 469 to mean:
1. to inspire with courage, spirit, or confidence.
2. to stimulate by assistance, approval, etc.
38.Similarly, the meanings given by the The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, 1993) at p 814 include:
1. Give courage, confidence, or hope to.
2. Make sufficiently confident or bold to do a specified action.
3. Urge, incite; recommend, advise.
4.Stimulate (a person, personal activity) by help, reward, etc; patronize; abet.
5.Allow, promote, or assist (an activity or situation); foster, cherish.
I find that the definition encompasses Mr Warraich’s conduct in the present case. That conduct facilitated and stimulated the applicant’s commencement and continuation of the proceedings. I am therefore unable to accept Mr Warraich’s submissions to the contrary that he did not encourage the applicant, but rather simply “assisted the applicant” with “mechanical processes” as a “community member”.
Mr Warraich did not dispute that the proceedings were pursued for purposes other than the vindication of the substantive action relied upon seeking the setting aside of the Tribunal’s decision and its redetermination. It is apparent that the purpose of these proceedings, from the perspective of Mr Warraich, was the extension of the applicant’s stay in Australia through the facilitation of his ability to apply for other visas. It would have been difficult for Mr Warraich to have contended otherwise, given his acknowledgements in writing, inter alia, that the applicant’s legal case in these proceedings “ha[d] no merits” and was “just securing time to get some other visa”, in relation to which he had “advised [the applicant] multiple times”.
Having regard to the above, I also accept the Minister’s submission that it is Mr Warraich rather than the applicant who should bear the costs of these proceedings. Although the applicant allowed the proceedings to continue despite being advised that they had no prospects of success, I accept that he was relying upon Mr Warraich regarding how he should go about his continued residence in Australia. This is so even if Mr Warraich did not, in explicit terms, advise the applicant that he should pursue proceedings that were without merit as a means of maintaining continued residence. I have found that Mr Warraich’s conduct, set out above, nonetheless encouraged this occurring.
Why such encouragement was given by Mr Warraich is unclear. I accept that Mr Warraich may have genuinely believed that he was helping the applicant, as was suggested by his evidence. I accept that he charged relatively limited fees to the applicant for his involvement in the matter. Noting that recovery of those fees has not been specifically sought by the applicant, and that Mr Warraich’s role appears to have extended beyond these proceedings, I have not ordered that such fees be repaid to the applicant.
I am even willing to accept that Mr Warraich may have believed, as he suggested, that he did not cross any line regarding his responsibilities to the Court, in circumstances where (as he repeatedly emphasised) he did not go on the record in these proceedings and did not sign a certificate under s 486I of the Act. If so, it may that this judgment and the outcome of these proceedings will provide some assistance to Mr Warraich in understanding the Court’s perspective in cases such as the present.
It is ultimately unnecessary, however, for the Court to make conclusive findings regarding Mr Warraich’s motivations in this regard. It is also not the role of the Court in these proceedings to make conclusive findings upon, or to educate Mr Warraich in relation to, his professional responsibilities. In this regard, I will make an order referring the judgment in this matter to the Victorian Legal Services Board. Whilst Mr Warraich submitted that such an order would be unnecessary, I consider that it is unavoidable given the allegations that have been made by the applicant and the material that is before the Court.
CONCLUSION
Having regard to the above, I will set aside Order 3 made on 27 February 2023 requiring the applicant to pay the Minister’s costs fixed in the amount of $5,900. In its place, I will order that Mr Warraich pay Minister’s costs up to the time that orders were made on 27 February 2023 in an amount not exceeding $5,900.
I will order that the Reinstatement Application otherwise be dismissed.
I will make a further order requiring that Mr Warraich pay the Minister’s costs of these proceedings incurred subsequent to the orders made on 27 February 2023.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 February 2024
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