Tukala v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 525
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525
File number(s): SYG 2316 of 2020 Judgment of: JUDGE LAING Date of judgment: 1 July 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal that it had no jurisdiction to determine an application for review of a decision by a Delegate – the Delegate had refused to grant the visa applicant an Extended Eligibility (Class TK) (Subclass 445) visa – application made by the second applicant to the Tribunal to be joined as a party after prescribed period had expired – involvement of non-lawyer – costs order under s 486F of the Migration Act 1958 (Cth) – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 24Z, 30(1A)
Federal Circuit Court Act 1999 (Cth) s 44
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 175
Migration Act 1958 (Cth) ss 338(5), 347, 347(2), 347(2)(b), 347(2)(c), 386A, 476(2), 486B(7), 486E, 486F, 486G
Migration Regulations 1994 (Cth) reg 4.10(1)(c), Schedule 2; cls 445.111, 445.211, 445.221Cases cited: SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366; 155 FCR 482 Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 10 June 2022 Place: Sydney Solicitor for the Applicants Self-represented Applicant. Appeared in person with interested person, Mr V. Kitoko Solicitor for the second Applicant
Self-represented applicant
Solicitor for the First Respondent Ms S. Lloyd (HWL Ebsworth) appeared in person ORDERS
SYG 2316 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JEAN PIERRE TUKALA TUKALA
First Applicant
VERONIQUE VELA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.Vangu Kitoko pay the first respondent’s costs of the application, pursuant to s 486F of the Migration Act 1958 (Cth).
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 for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal concluded that it had no jurisdiction to determine an application for review of a decision by a delegate (Delegate) of the first respondent (Minister). By that decision, the Delegate had refused to grant an Extended Eligibility (Class TK) (Subclass 445) visa (Subclass 445 visa) to Mr Joshua Buma Tukala (Visa Applicant).
BACKGROUND
The Visa Applicant is the adopted son of the applicants in these proceedings.
The second applicant is a Congolese national who entered Australia in 2004 and acquired Australian citizenship in 2007. The first applicant was granted a Partner (Temporary) (Class UK) Partner (Subclass 820) visa on 5 May 2016 on the basis of his marriage to the second applicant.
On 3 July 2017, the Visa Applicant applied for the Subclass 445 visa nominating the second applicant as his sponsor. The application was lodged with the Department’s office in Pretoria, South Africa. The Visa Applicant was offshore at the time of application.
On 12 February 2020, the Delegate refused the application. The Delegate found that because the first applicant had been granted a Subclass 801 visa on 28 August 2019, he no longer held a Subclass 820 visa at the time of decision. The first applicant was therefore no longer a “visa holding parent” within the meaning of cl 445.111 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) and was accordingly unable to meet cl 445.221.
An application was made to the Tribunal for review of the Delegate’s decision on 21 April 2020, by the first applicant on behalf of the Visa Applicant. The second applicant was not included as an applicant on the application form. Mr Vangu Kitoko was nominated as the first applicant’s representative and authorised recipient.
On 21 April 2020, the Tribunal received an email from Mr Kitoko attaching a form requesting reduction of the applicable fee. Mr Kitoko indicated that he had tried to submit the application on 20 April 2020 by email, but had experienced issues in doing so.
On 22 April 2020, a Tribunal employee emailed Mr Kitoko noting that a reduced fee needed to be paid within the prescribed review period in order for the application to be valid. Whilst the email noted that strict time limits applied, the time limit in question was not specified. The email was sent on the last day of the prescribed period in which review could be sought of the Delegate’s decision (22 April 2020): reg 4.10(1)(c) of the Regulations. A payment page was said to be attached to the email.
Later that day, Mr Kitoko emailed the Tribunal noting that the payment page had not been attached. The form was then attached to a further email sent by a Tribunal employee. Another email advised that the Tribunal was experiencing email issues due to a network failure and that another form may be used from the Tribunal’s website.
On 27 April 2020, Mr Kitoko was sent (for the first applicant) an invitation to comment on the validity of the review application in circumstances where no fee had been received by the end of the prescribed period. Mr Kitoko responded on 8 May 2020, claiming that he had been unable to pay the fee due to the network failure, other issues with communications from the Tribunal and an inability to access the registry which was closed due to the pandemic.
On 18 August 2020, Mr Kitoko was sent (for the first applicant) an invitation to comment on the validity of the review application in circumstances where the application needed to have been made by the sponsor or nominator for the visa (i.e. the second applicant). Mr Kitoko responded on 23 August 2020, attaching what was said to be a response from the first applicant claiming that he was a person who sponsored or supported the visa application.
On 3 September 2020, the Tribunal made a decision determining that it did not have jurisdiction in the matter.
On 6 September 2020, Mr Kitoko emailed the Tribunal a form seeking to add the second applicant as a party to the Tribunal proceedings.
On 7 September 2020, Mr Kitoko was sent (for the first applicant) notification of the Tribunal’s decision made on 3 September 2020.
RELEVANT LEGISLATION
Section 338(5) of the Migration Act 1958 (Cth) (Act) relevantly provided:
(5)A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a)the visa is a visa that could not be granted while the non-citizen is in the migration zone; and
(b)the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
Clause 445.211 of Schedule 2 to the Regulations required that the applicant for the visa be “a dependent child of a visa-holding parent” and “sponsored by the nominator or sponsor of the visa-holding parent”. The term “visa-holding parent” was defined in cl 445.111 by reference to limited subclasses of visa, including Subclass 820 (Spouse).
Clause 445.221 of Schedule 2 was a time of decision criterion which required that the “parent of the applicant continues to be a visa-holding parent”.
Clause 445.411 of Schedule 2 provided the following requirement regarding grant of the visa:
If the application is made outside Australia, the applicant must be outside Australia when the visa is granted.
Section 347 of the Act relevantly provided:
Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:…
(ii)if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)--70 days after the notification of the decision…
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by:…
(b)if the Part 5-reviewable decision is covered by subsection 338(5) or (8)--the sponsor or nominator referred to in the subsection concerned…
Regulation 4.10(1)(c) of the Regulations provided:
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1)…(c) if the Part 5‑reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received…
THE TRIBUNAL’S DECISION
The Tribunal observed that s 347(2) of the Act specified who had the right to apply for review of a decision that was reviewable under Part 5 of the Act. In the case of a decision described in s 338(5), an application for review was only able to be made by the sponsor or nominator referred to in the subsection concerned: s 347(2)(b). Section 347(1)(c) also required that the application be accompanied by the prescribed fee unless that fee had been reduced on the basis of financial hardship (at [3]).
The Tribunal observed that it had written to the first applicant regarding the validity of the application and considered his responses (at [4]-[6]). However, the material before the Tribunal confirmed that the Subclass 445 visa application had been made by the second applicant as the “sponsor” of the “visa holding parent” of the Visa Applicant. The first applicant had sought to meet the criteria as the “visa holding parent” for the purposes of the application (at [7]-[8]).
As the Delegate’s decision was covered by s 338(5) of the Act, an application for review was only able to be made by the sponsor (i.e. the second applicant). As the review application was instead made by the first applicant, it was not validly made under s 347. It followed that the Tribunal lacked jurisdiction in the matter. Given this finding, the Tribunal considered it unnecessary to determine the issue of whether the application was additionally invalid on account of the fee requirement (at [9]-[11]).
PROCEEDINGS BEFORE THIS COURT
An application was filed with this Court on 7 October 2020. The form indicated that it had been prepared by Mr Kitoko. An interpreter was not requested in the form. The application contained the following grounds:
A. Ground 1: ignoring materials, the Tribunal was required to look at.
i.Subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 provides as follows:
if an application has been made by a person for a review of a decision, any other person whose interests are affected by the decision may apply to be made a party to the proceeding.
ii.On 04 September 2020, the deponent’s wife, Ms. Veronique Vela has applied to the tribunal to be made a second party to the proceeding. The deponent contends that there was jurisdictional error as the tribunal was required to look at the application as Vela has applied to the tribunal on 04 September 2020, two days before the Tribunal emailed the decision dated 06 September 2020. There is no evidence that the Tribunal decision was made on 03 September 2020. The deponent contends that the tribunal has refused or ignored to proceed the application of Ms Vela to be Made a second party to the Proceeding.
iii.The Tribunal was aware and/or knew that Ms. vela is the legitimate wife of the deponent who is the first party to this proceeding. Both of us, the deponent’s wife and the deponent, are the parents and financial providers of the visa applicant who is living in south Africa. therefore, the decision of the department has affected, and the decision of the tribunal has also affected family interests. The processing of this application was an essential requirement of the existence of jurisdiction with respect to the matter in this proceeding. There was jurisdictional error as the Tribunal purported to act in circumstances where that processing event has not in fact occurred or that requirement has not in fact been satisfied even though the matter was the kind of matter which the Tribunal has jurisdiction to entertain, pursuant to subsection 30(1) of the Act.
iv.Similarly, jurisdictional error has occurred where the Tribunal has disregarded or ignored to take account of the Vela’s application matter in circumstance where the subsection 30(1) of the AAT Act which conferring the Tribunal’s jurisdiction requires that this particular matter should be taken into account to make its decision in the circumstances of this case, which wholly or partly lies outside the theoretical limits of its function and powers.
B. Ground 2: Demonstrable mistake in the identification of relevant issue.
i.Section 347(1)(c) also requires that the application be accompanied by the prescribed fee (if any) unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship.
ii.The Deponent contends that in the week, between Monday 20 April 2020 to Friday 24 April 2020, the Tribunal internet network system was broken down.
iii.At any time on 20 April 2020, the Deponent was unable to access the Tribunal’s website due to your internet network failure. After several attempting, at late evening then I could submit the application for review together with a fee reduction request form through your email’s address, which were received on 21 April 2020. For this request a reduced fee of A$893.50 should be paid at the time of lodgment of the application for review on 20 April 2020, but electronic processing of credit card failed due to the tribunal’s internet network failure.
iv.On 22 April 2020 at 10:15 am, I received an email from [name omitted] noticing me about the requirement that the applicant must either pay the full fee or pay 50% of the fee, and, in the letter, he noticed:
“I have attached a payment page to this email. Please complete the form with payment details in the amount of A$893.50 for each application and email the completed forms to [email protected] including your case numbers 2007362, 2007367 & 2007368 in the subject line.”
v.Unfortunately, [name omitted] has failed to attach a payment page. On the same day 22 April 2020, I made several attempts to contact the Tribunal in order to get the said payment form. At around 2:00pm, I visited the registry, but it was closed due to COVID-19 situation. Back at home, I addressed two emails to [name omitted] at 3:05 and 3:59, but no reply was received. I also made several calls between 3:00pm to 4:30pm, a Registry Officer [name omitted] has answered the phone and said:
Unfortunately, at present, our telephone system is affected due a network failure, [name omitted] is attempting to forward the form referred to, but he is unable to access e-mail due a network failure.
vii.On 23 April 2020 at 8:46am, a day after the time limit (22 April 2020), I received an email from a Tribunal Services Officer, [name omitted]. She wrote:
Dear Mr. Vangu Kitoko,
Please find attached the payment details form.
I apologize that this was not attached in the previous email.
Kind Regards,
[name omitted]
Tribunal Services Officer
viii.On the basis of the deponent’s evidences above, to this Honorable court to consider that a jurisdictional error was occurred when the decision of tribunal has mistakenly considered the deponent’s application was made in contravention with section 347(1)(c) and r.4.13(4).
ix.Similarly, a question of law or a jurisdictional error occurred in the Tribunal’s decision by the fact that the application for review together with a fee reduction request form were received on 21 April 2020, one day early the time limit as stated in the Department of Home Affairs’ decision letter. If the application fee was not paid on or before 22 April 2020, it is because:
1. because the Applicant was unable to access the Tribunal’s website due to Tribunal’s internet network failure. Without failure of Tribunal’s internet network, the issue of invalidity of the applicant’s application for review should not therefore be caused; and/or
2. because of [name omitted] bad faith to intentionally and/or deliberately forwarded the form on 23 April 2020, a day after the Applicant’s time limit.
The matter was listed before me on 2 June 2022. At the commencement of the hearing, Mr Kitoko sought to appear for the applicants (both of whom were in attendance). I indicated that I was not minded to allow this in circumstances where (a) Mr Kitoko was not legally qualified; and (b) there was a potential conflict of interest, given the possibility of a personal costs order that had been foreshadowed by the Minister. I assured Mr Kitoko that he would nonetheless be given leave to appear on his own behalf, given the costs order contemplated by the Minister.
However, it became clear early in the hearing that an interpreter would be required for the applicants. As one was unable to be arranged that day, alternate dates were offered to the parties and Mr Kitoko.
Alternative addresses for service were provided by the applicants. This was to facilitate the Minister’s representative being able to send relevant documents in the matter to the applicants at an address for service that did not belong to Mr Kitoko.
I suggested that the applicants consider obtaining independent legal advice, and that they arrange for interpretation of relevant material to occur (particularly the written submissions) prior to the resumed hearing. I suggested that Mr Kitko also consider obtaining advice and what material he wished to rely upon when the time came to consider the issue of personal costs on the next occasion.
At the resumed hearing, I confirmed that the relevant documents in this matter had been received by the applicants. I also endeavoured to explain the Court’s role on judicial review and how it differed from the role of the Tribunal. Both applicants appeared in person, with the first applicant communicating with the assistance of a French interpreter. Mr Kitoko was given the opportunity to make submissions on his own behalf.
At the resumed hearing, I noted that there were affidavits that had been apparently filed on behalf of the applicants. However, I was informed by the applicants that they had signed the documents without understanding them. There was no interpreter jurat on the first applicant’s affidavit, despite him requiring an interpreter in these proceedings. In the circumstances, I did not consider it appropriate to receive that material into evidence.
GROUND 1
Ground 1 relies upon the application made by the second applicant to be joined as a party before the Tribunal. As noted above, this occurred through correspondence sent to the Tribunal on 6 September 2020.
I accept that this application was made before the Tribunal’s decision was notified to the applicants on 7 September 2020. However, the Tribunal’s decision was made on 3 September 2020, according to the time and date on the face of the decision. The application to join the second applicant was therefore received by the Tribunal after its decision had been made.
The particulars to ground 1 place reliance upon s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). However, that provision did not apply to proceedings in the Migration and Refugee Division of the Tribunal: s 24Z of the AAT Act. Reliance was also placed in written submissions upon s 486B(7) of the Act. However, that provision only applies to proceedings in specified courts. It did not apply to proceedings before the Tribunal.
At the resumed hearing before the Court, the applicants (and Mr Kitoko) contended that the second applicant had previously been told in a call from the Department that she would not be allowed to bring her son to Australia. Whilst evidence of the call was not before the Court, it was submitted that I should nonetheless find that the Tribunal acted in concert with the Department in manufacturing the date of its decision to intentionally deprive the applicants of their rights to review. This was said to be supported by the delay between the stated decision date and the notification of it. It was also said to be supported by a lack of procedural fairness in the approach taken by the Delegate, including delay in making the Delegate’s decision. This was contended to have amounted to an abuse of process.
The evidence before the Court falls well short of supporting a finding that any such conspiracy occurred. The Tribunal’s decision was communicated within the period of 14 days allowed after a decision has been made: s 368A of the Act. The fact that notification occurred on Monday, 7 September 2020 after the decision was made on Thursday, 3 September 2020 does not establish any conspiracy between the Department and the Tribunal. Nor is this established by the applicants’ complaints regarding the Delegate’s decision. It was confirmed at the hearing that review was not sought of that decision. This Court would not have had jurisdiction to undertake such a review: s 476(2) of the Act.
In any event, the issue of validity in this case did not turn on when the Tribunal’s decision was made. Even if the Tribunal’s decision had not been made on 6 September 2020, the time in which the second applicant could have validly applied to the Tribunal for review of the Delegate’s decision had expired. To be valid, any application to the Tribunal by the second applicant as sponsor needed to be made by 22 April 2020: reg 4.10(1)(c) of the Regulations. It follows that the applicants were not deprived of any review rights by the date of the Tribunal’s decision. The second applicant’s review rights had already expired by that time.
For these reasons, ground one is unable to succeed. Moreover, I am satisfied that it had no reasonable prospects of success.
GROUND 2
As the Minister has submitted, it is not entirely clear what the applicants sought to demonstrate in relation to ground 2. Whilst the ground was described as “[d]emonstrable mistake in the identification of relevant issue”, the particulars appeared to contend that the applicants had been unable to pay the prescribed fee in respect of their Tribunal application due to various failures on the part of the Tribunal.
However, the Tribunal’s decision that it lacked jurisdiction did not turn on any failure to pay the prescribed fee within time. Whilst the Minister’s representative, Ms Lloyd, submitted at the hearing that it may have been open for the Tribunal to find that it lacked jurisdiction on this basis, she submitted that it was unnecessary for the Court to determine that issue. This is because the Tribunal did lack jurisdiction on the basis that it identified, in circumstances where the application to it was not validly made in time in accordance with s 347(2)(b) of the Act. I accept that submission.
The applicants have not demonstrated how the Tribunal’s jurisdiction could have been enlivened, even if they had paid the prescribed fee on time. The Tribunal still would have lacked jurisdiction because no application had been made for review in time by the second applicant as sponsor.
For these reasons, ground 2 is unable to succeed. I accept the Minister’s contention that the ground had no reasonable prospects of success.
COSTS
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…
(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.
Submissions
The written submissions made on behalf of the Minister suggested that an order be considered under s 486F of the Act. Through the written submissions and an affidavit of Claire Dunn dated 30 March 2021, the following matters were drawn to the Court’s attention:
(a)Mr Kitoko is attributed as the author of the originating application.
(b)Searches of the Victorian and New South Wales Law Societys’ websites indicated that Mr Kitoko was not an admitted solicitor.
(c)Mr Kitoko’s details were given as addresses for service, including the email address that was provided.
(d)When the Minister’s representatives sent correspondence to that address drawing attention to s 44 of the (then) Federal Circuit Court Act 1999 (Cth) and requesting an address for service that was one of the applicants’ own, Mr Kitoko responded “[f]or the Applicant” stating:
In regard to your concern, Vangu Kitoko is not and will not be a representative. However, his address is preferred for any service in this proceeding. There is no need for change it.
(e)Prior the hearing, Mr Kitoko solely engaged in correspondence with the Minister’s representatives on behalf of the applicants.
In written submissions, the Minister submitted that it would be open for the Court to infer that despite his attempted disclaimer, Mr Kitoko has been purporting to represent the applicants in these proceedings contrary to s 44 of the Federal Circuit Court Act 1999 (Cth) (which is now reflected in s 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
This suggestion of the Minister’s was confirmed at the commencement of the hearing of this matter, in which Mr Kitoko attempted to appear for the applicants. Mr Kitoko accepted that he had formulated the grounds of the application and prepared other documents in the matter. This was in circumstances where the applicants were described by Mr Kitoko as being “ignorant” of legal matters, having limited education and ability in the English language. Mr Kitoko explained that he was a member of their family, as he was the father of one of the second applicant’s children.
At the resumed hearing, Mr Kitoko additionally explained that he was a community leader who assisted many people in the community. He explained that although he was not yet legally qualified, he was a final year law student who had appeared as a self-represented litigant in a number of cases before various courts. He had therefore considered himself able to assist the applicants in these proceedings, which he had endeavoured to do. Mr Kitoko doubted that the applicants would have been able to bring the proceedings without his assistance.
However, Mr Kitoko did not accept that he had “encouraged” the proceedings. He sought to characterise his involvement as assisting or supporting the applicants.
Consideration
I accept the Minister’s submission that the application before this Court lacked reasonable prospects of success, for the reasons that I have identified above.
I also accept that Mr Kitoko relevantly encouraged the applicants to commence and continue the litigation. He accepted that he had formulated the grounds I have found to be unmeritorious. Mr Kitoko insisted upon being the only address for service available to the Minister and the Court prior to commencement of the hearing. When the hearing first commenced, he sought to appear for the applicants and suggested that they would lack the ability to address the Court on the application he had formulated without his assistance. As was found in SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366; 155 FCR 482 (SZFDZ) at [21], the word “encourage” is “potentially of wide import”. I find that it readily encompasses what occurred in this case.
The material before the Court does not establish that the proceedings were commenced or continued for an ulterior purpose. At issue in this case is whether Mr Kitoko “did not give proper consideration to the prospects of success of” the application, within the meaning of s 486E(1)(b)(i). This is difficult to assess in circumstances where Mr Kitoko is legally unqualified despite being a final year law student with some experience as a self-represented litigant. There is nothing before me to suggest that Mr Kitoko has any professional background in migration law. The case may therefore be contrasted in some respects with SZFDZ, where the third party against whom costs were ordered had some professional experience in migration law although he was not legally qualified (at [7] and [25]).
However, it is apparent from SZFDZ at [23]-[27] that a finding may be made that “proper consideration” has not been given to prospects even where the third party is not legally qualified, is “well intentioned” and has “formed a genuine belief about the merits of the application” through some misguided interpretation of the law. Subjective views are not determinative of whether “proper consideration” was given. The word “proper” has been held to invite “consideration of whether, in the circumstances, there was a balanced and thoughtful assessment of the prospects of success, such assessment being directed to whether, objectively, the litigant had prospects of success” (SZFDZ at [25]).
The materials before me do not suggest that such an assessment occurred in the present case. I find that it did not. The grounds relied upon did not adequately engage with the Tribunal’s decision, which on its face was made on 3 September 2020. The insurmountable issues that the applicants faced were additionally made clear in the Minister’s written submissions, which were filed more than a year before the hearing of this matter.
I accept that the encouragement Mr Kitoko provided to the applicants was well meaning and given with the best of intentions. However, his actions have resulted in an application being pursued in proceedings that have spanned more than year and a half without reasonable prospects of success. Costs have been incurred by the Minister in defending the proceedings. Those costs should be met by an appropriate costs order. I do not consider the fairest outcome to be that they are borne by the applicants in circumstances where Mr Kitoko appears to have been the driving force behind the litigation. I will accordingly make an order requiring that the Minister’s costs be paid by Mr Kitoko, pursuant to s 486F of the Act.
56 I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 1 July 2022
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