FEDERAL COURT OF AUSTRALIA

SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366

MIGRATION – costs orders under s 486F of the Migration Act 1958 (Cth) - where application for leave to appeal Federal Magistrate's decision dismissed and finding made of no reasonable prospects of success – where applicant assisted by non-lawyer who prepared documents filed and spoke on applicant's behalf at hearing – whether contravention of s 486E of the Migration Act 1958 (Cth) – whether "proper consideration to the prospects of success" was given, pursuant to s 486E(1)(b)(i) of the Act

WORDS AND PHRASES – "proper consideration to the prospects of success of the migration litigation"

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

SZDFZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 1127 OF 2006

MOORE J

24 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  Toufic Laba-Sarkis pay the respondent's costs of the application, pursuant to s 486F of the Migration Act 1958 (Cth).

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

REASONS FOR JUDGMENT

1                     On 4 August 2006, I dismissed the applicant's application for leave to appeal from a decision of a Federal Magistrate and held that the applicant would have no prospects of success in any appeal: SZFDZ v Minister for Immigration [2006] FCA 974. At the hearing on 27 July 2006, the Minister's solicitor submitted that the Court should consider making a costs order personally against Mr Laba-Sarkis, who had spoken on the applicant's behalf at the hearing and, as he acknowledged, assisted the applicant by drafting documents filed in the proceeding on her behalf. The question of costs was reserved and Mr Laba-Sarkis was directed to file any affidavits or written submissions on the issue of costs within 14 days. Mr Laba-Sarkis has provided an affidavit affirmed 19 August 2006 and written submissions. The Minister has also filed written submissions.

The statutory provisions

2                     Section 486E of the Migration Act 1958 (Cth) provides:

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.

3                     The term "migration litigation" is defined in s 486K of the Act as "a court proceeding in relation to a migration decision". A "migration decision" is defined under s 5 as a privative clause decision, a purported privative clause decision or a non-privative clause decision.

4                     It can be seen that s 486E prohibits a person from encouraging a litigant to commence or continue migration litigation which has no reasonable prospects of success without giving proper consideration to the prospects of the litigation succeeding. A similar prohibition operates if the purpose of commencing or continuing the litigation is unrelated to the objectives which the court process is designed to achieve. The application to this Court for leave to appeal from the decision of the Federal Magistrate was "migration litigation" within the meaning of s 486K. Additionally, it was litigation which had no reasonable prospects of success.

5                     Where the Court finds that migration litigation had "no reasonable prospect of success", the Court must consider whether a costs order under s 486F of the Migration Act 1958 (Cth) should be made: see s 486F(2) of the Act. Subsection 486F(1) provides that where a person contravenes s 486E, the Court may make one or more of the orders set out in that subsection. Relevantly, the Court may make "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": s 486F(1)(a) of the Act. Under s 486G of the Act, a person must be given "a reasonable opportunity" to argue why a costs order under s 486F should not be made against them before such an order is made.

6                     The two issues which arise under s 486E are whether Mr Laba-Sarkis gave "proper consideration to the prospects of success of the migration litigation" or whether "a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process was designed to achieve". If Mr Laba-Sarkis has engaged in conduct prohibited by s 486E(1) the Court must consider whether to make a costs order against him personally.

Mr Laba-Sarkis

7                     Mr Laba-Sarkis described himself as a "community volunteer" who was involved with a number of community organisations. He is a former registered migration agent. At the hearing, he said he had practised as a migration agent between 1983 and 1996. He denied that he had ever been deregistered as a migration agent and said he had simply chosen not to renew his licence. In 1992, Mr Laba-Sarkis applied to be registered as a migration agent under the new statutory scheme for registration of migration agents which commenced operation in that year. The Department (which is now the Department for Immigration and Multicultural Affairs) referred the question of whether Mr Laba-Sarkis was not fit to be registered as a migration agent to the Migration Agents Registration Board on 6 November 1993. On 17 June 1996, the Board wrote to Mr Laba-Sarkis advising him that his application for registration had been refused. He was also directed to cease holding himself out as available to give migration assistance. On 15 July 1996, Mr Laba-Sarkis lodged an application for review of the Board's decision with the Tribunal. On 23 October 1997, the Tribunal affirmed the Board's decision, making adverse findings in relation to two of the seven complaints before it. The Tribunal found that Mr Laba-Sarkis was not a fit and proper person to give immigration assistance and therefore was not a person who could be registered as a migration agent under s 296 of the Act, as it then was. Merkel J of this Court dismissed an appeal from the Tribunal's decision on 15 June 1998: Toufic Sarkis v Migration Agents Registration Board [1998] FCA 719.

8                     Since at least 2005, Mr Laba-Sarkis has, as he conceded, provided assistance in a number of migration proceedings in this Court and the Federal Magistrates Court, to parties seeking to challenge the relevant Tribunal's decision. The Minister's submissions identified fifteen examples of proceedings in 2005 and 2006 in which Mr Laba-Sarkis had provided such assistance. In his written submissions, Mr Laba-Sarkis' identified five additional cases (four from the Federal Magistrates Court and one from this Court) in which he had given or was still giving assistance.

9                     On 23 March 2006, Mr Laba-Sarkis wrote to the Minister on the applicant's behalf, in effect requesting that the Minister exercise the discretion under s 417 of the Act in the applicant's favour. The Minister submitted that previous requests had also been made. It is not known whether Mr Laba-Sarkis assisted. One of the matters raised in the letter was that the applicant's cousin and cousin's wife were ill and that their positions would worsen if the applicant left Australia. Medical evidence was attached.

10                  The Department's response to the letter, and the subsequent proceedings in the Federal Magistrates Court, are outlined in my reasons for judgment disposing of the application.

Mr Laba-Sarkis' affidavit and submissions

11                  Mr Laba-Sarkis deposed in his affidavit that he knew the applicant in Lebanon and in Australia and knows her family. He said that after the applicant was released from detention, he visited her and was touched by the serious medical condition of "her cousin Bob and Mona". He said that he was asked to write to the Minister on the applicant's behalf. He deposed that:

"In good faith and heart I assisted the appellant in drafting the application filed in Court on 5/5/06 as otherwise the appellant would have no choice but depart Australia and her cousins would be seriously prejudiced without her day to day care as she was the only person providing care to them.

At the time of lodging the federal application, the appellant and I strongly believed that the issue raised has reasonable prospect of success as per current issue brief index No 3 2003-2004. The correspondence sent on the same day to my address by ministerial intervention unit does not reflect proper consideration, it is our belief that officers are required by the law to confirm to certain standards of conduct for the protection of others and such conduct standard is known as non negligence."

12                  The "current issues brief" referred to was attached to the affidavit. It appeared to be a document published on the Australian Parliament House website headed "Ministerial Discretion in Migration Matters: Contemporary Policy Issues in Historical Context", by Dr Kerry Carrington. The relevant paragraph highlighted by Mr Laba-Sarkis reads as follows:

"The Minister cannot be compelled to act within the current guidelines. However, it may be that a decision of a case officer not to refer a matter to the Minister could be reviewable by the courts, if for example, the file note showed that the officer failed to consider an issue clearly within the guidelines."

13                  Other documents attached to the affidavit included copies of articles by and interviews with Mr Laba-Sarkis published in the Middle East Times.

14                  Mr Laba-Sarkis also filed written submissions in response to the Minister's submissions filed 5 September 2006 (discussed below). Mr Laba-Sarkis reiterated in his submissions that he had good reason to believe, and still believed, that the Minister's conduct relating to the letter dated 23 March 2006 could be reviewed by a court in the applicant's favour. He submitted that the Minister's costs should be waived "because of the exceptionally difficult circumstances" and also that he was not on regular wages.

15                  A number of points of a more general nature were also raised in the submissions. These included that:

1.             His assistance in migration proceedings has never been given for a fee or other reward;

2.             In a number of cases, the people he has assisted have succeeded in having the matter remitted to the Tribunal; and

3.             He has never encouraged people to commence legal proceedings who, to the best of his knowledge, "did not suffer or met [sic] convention grounds".

The Minister's submissions

16                  The Minister submitted that, in all the circumstances, it was appropriate for the Court to exercise its power under s 486F of the Act and order that Mr Laba-Sarkis personally pay the Minister's costs. In the alternative, the Minister sought an order that costs be paid by the applicant.

17                  The Minister's primary submission was that Mr Laba-Sarkis had encouraged the applicant in the relevant sense and had not given proper consideration to the prospects of success of the application. In the Minister's view, there was some evidence that Mr Laba-Sarkis had encouraged the applicant to commence or continue proceedings for the purpose of allowing her to remain in Australia. However, the Minister's position was that, in the context of the other evidence given in his affidavit, it would not be appropriate to conclude that s 486E(1) had been contravened on that basis alone.

18                  The Minister submitted that to give proper consideration to the prospects of challenging the decision of the Court below, a person would have to identify some arguable basis for asserting that the Federal Magistrate erred in holding that it had no jurisdiction to deal with the matter. That issue had been, in effect, the only one properly arising from the Federal Magistrate's decision. There had been no indication at all in any of the documents filed in these proceedings, nor from what Mr Laba-Sarkis said at the hearing on 27 July 2006, that he had given any consideration to the issue. It was submitted that, on the basis of all the evidence available, Mr Laba- Sarkis had entirely ignored the jurisdictional issue.

19                  The Minister submitted that in the circumstances of the present case, Mr Laba-Sarkis clearly breached s 486E(1) irrespective of any other consideration. The Minister accepted that there might be cases where in the circumstances the Court would be prepared to conclude that the question of whether a person gave "proper consideration" would vary according to the qualifications and experience of that person. In that context, the Minister made the following additional comments. Firstly, it was submitted that it was clear that s 486E was not limited to persons with specialist qualifications, even though the Act imposes restrictions on persons who may give immigration assistance to others. Secondly, Mr Laba-Sarkis was, in any event, clearly a person who held himself out as a person with some knowledge and experience in migration matters and capable of assisting persons such as the applicant.

20                  Thirdly, the Minister submitted that Mr Laba-Sarkis' history as a migration consultant and his recent activities should be considered. The Minister submitted that although Mr Laba-Sarkis was not a registered migration agent (and that has been the case for some time), it was clear that he had recently become more active in providing assistance in migration matters. The Minister submitted that it was also clear from the articles annexed to his affidavit that Mr Laba-Sarkis continued to comment on migration issues in what were described as certain publications catering for particular sections of the community.

Consideration

21                  The word "encourage" is potentially of wide import: seeEmployment Advocate v Williamson [2001] 111 FCR 20 at [72] and following. However, in the present case, there can be no real issue, in my opinion, about whether Mr Laba-Sarkis "encouraged" the applicant as required by s 486E(1). By his own admission, Mr Laba-Sarkis prepared the application and draft notice of appeal for the applicant, and made oral submissions on the applicant's behalf at the hearing. It may also be noted that he prepared the letter dated 23 March 2006 which was addressed to the Minister, requesting exercise of the power under s 417 of the Act. It is not clear what role if any he took in the Federal Magistrates Court proceedings, although in any event, it is only the proceedings in this Court which are relevant for present purposes.

22                  It is unnecessary to consider whether Mr Laba-Sarkis encouraged the proceedings in this Court for a purpose unrelated to the objectives which the court process is designed to achieve, under s 486(1)(b)(ii) of the Act. It is not a matter pursued by the Minister in her submissions though the point was made, with which I agree, that there was some material which might support a conclusion that the proceedings were for the proscribed purpose.

23                  The real issue is whether Mr Laba-Sarkis did "not give proper consideration to the prospects of success of" the application for leave to appeal, for the purposes of s 486E(1)(b)(i). It may well be the case that Mr Laba-Sarkis formed a genuine belief about the merits of the application. It should be noted that at the hearing of the application, Mr Laba-Sarkis relied with some apparent conviction on the Federal Magistrate's statement that (at [5]):

"I say nothing of the jurisdiction that may be available in the High Court or the Federal Court”.

24                  Mr Laba-Sarkis evidently gained from that statement some comfort about the applicant's prospects of success in this Court.

25                  However, the subjective views of a person in the position of Mr Laba-Sarkis are not determinative of whether "proper consideration" was given to the prospects of success. The word "proper" invites 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. Mr Laba-Sarkis is not legally qualified. However, he has had experience in the field of migration law. He does not, in his affidavit, explain why the application for leave had any prospects of success having regard to the reasons for decision of the Federal Magistrate and the issues which might be raised in any appeal. In my opinion, the only inference that can be drawn is that Mr Laba-Sarkis did not give proper consideration of the prospects of success of the application for leave.

26                  The next issue is whether I should exercise the discretionary power conferred by s 486F to order Mr Laba-Sarkis to pay the Minister's costs. That section is part of a recently enacted costs regime embodied in Part 8B of the Act. That regime was introduced against a background where in both this Court and the Federal Magistrates' Court, there has been an unrelenting stream of applications challenging decisions made under the Act. Those applications are often brought by litigants in person who, in many cases, have been given assistance by others. History reveals that many of those applications are unmeritorious and are doomed to fail. That is not to say, of course, that there are not also applications which reveal decision-making either arguably or actually infected by reviewable error. There are. Mostly, the applications relate to decisions made under the Act concerning applications for protection visas. Legal error resulting in the refusal of a protection visa, in circumstances where such a visa should or might be granted, could have profound consequences for the individual applicant.

27                  However, Parliament appears to have taken the approach that, in relation to proceedings concerning decisions under the Act, proper consideration must be given by people assisting litigants about the prospects of success before proceedings are commenced. If that does not happen, the person providing assistance is at risk of being ordered to pay the costs of other parties to the litigation. In the present case, I am satisfied I should order Mr Laba-Sarkis to pay the Minister's costs. However well intentioned his actions may have been, Mr Laba-Sarkis encouraged the applicant to commence proceedings which were bound to fail. There is nothing to suggest the applicant had any real appreciation about whether the application might succeed.

28                  Applying well settled legal principles, the Minister should have her costs of the application met by an appropriate cost order. The next question is whether those costs should be paid by the applicant or Mr Laba-Sarkis. It was his encouragement which, I infer, led to the making of the application. He should bear the Minister's costs personally.

Associate:

Dated: 24 October 2006