Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

In Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2), the applicants sought an extension of time to appeal from a lower court’s judgment. They relied on the assistance of Vangu Kitoko, who was neither a lawyer nor a migration agent. The Minister for Immigration, Citizenship and Multicultural Affairs applied for an order under s 486F of the Migration Act 1958 (Cth) that Mr Kitoko pay the costs of the proceeding before the court. The court was required to decide whether an order under s 486F should be made requiring Mr Kitoko to pay the Minister’s costs of the application in the Court, and whether an order should be made for the costs to be paid in a lump sum and in the amount sought. The court found that Mr Kitoko's involvement in the proceedings was extensive, as he prepared the court documents and sought to appear on behalf of the applicants. The court concluded that the proposed grounds of appeal were hopeless and the prospective appeal was bound to fail. It held that an order under s 486F should be made requiring Mr Kitoko to pay the Minister’s costs of the proceeding, including the costs of the interlocutory application. The court also ordered that the costs be awarded in a lump sum, fixed in the amount of $17,853. The court's reasoning was based on the legislative framework governing the making of orders under s 486F and the historical context of the provision, which aimed to deter the initiation or continuation of proceedings that are an abuse of a court’s process and to protect litigants from being encouraged to pursue unmeritorious litigation. The court held that Mr Kitoko's actions in assisting the applicants were in contravention of s 486E of the Migration Act, which prohibits a person from encouraging a litigant to commence or continue migration litigation if it has no reasonable prospects of success and the person does not give proper consideration to the prospects of success. The court concluded that Mr Kitoko should be held responsible for the costs incurred by the Minister due to his involvement in the proceedings.