Federal Court of Australia

Ranabhat v Minister for Immigration and Citizenship (No 2) [2025] FCA 1595

ORDERS

THE COURT ORDERS THAT:

1.    Within 30 days from the date hereof, Mr Vikas Jain pay to Mr Santosh Ranabhat the sum of $2,000.00.

2.    There be no other order as to the costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    On 6 August 2025, judgment was handed down in Ranabhat v Minister for Immigration and Citizenship [2025] FCA 880 (Ranabhat), in which an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) of 22 October 2024 (Ranabhat (FCFCOA)) was dismissed. In Ranabhat (FCFCOA), the primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) which had affirmed, on 30 January 2024, a decision of the first respondent (the Minister) to refuse the first appellant’s application for an Employer Nomination (Permanent) (Class EN) (Subclass 186) (Direct Entry Stream) visa (a Subclass 186 Visa). The grounds upon which the appellants sought to challenge that decision (as set out in a Notice of Appeal filed 12 November 2024 (the Notice of Appeal)) were, for the reasons developed in Ranabhat, wholly without merit.

2    Importantly, during the course of the hearing on 30 July 2025, information came to light which suggested that the Notice of Appeal had been prepared by a solicitor, a Mr Vikas Jain, although no markings on the notice indicated that to be so: Ranabhat [27] – [28], [53]. As such, the question of who ought to bear the costs of the appeal was deferred. The purpose of the deferral was, as made clear in Ranabhat (at [50] – [54]), to afford the Minister an opportunity to seek an order under s 486F of the Migration Act 1958 (Cth) (the Act) that Mr Jain pay some or all of the costs of the proceedings or that the Court might, of its own motion, make such an order.

3    On 28 August 2025, Mr Jain appeared before the Court (with representation) and the issue of his potential liability under Part 8B of the Act was addressed. It is that issue with which these reasons are concerned.

Relevant context: extent of relationship between Messrs Jain and Ranabhat

4    The circumstances relevant to Mr Jain’s involvement in the matter (as regards the context of the matter more generally, see Ranabhat [3] – [25]) are said to be set out in an affidavit filed by him on 26 August 2025 (the Jain Affidavit). Those circumstances can be distilled as follows.

5    In or about late October 2024, the first appellant, a Nepalese citizen (Mr Ranabhat), sought the assistance of Mr Jain’s legal practice, Wickham Lawyers, as regards his “visa options” and the possibility to appeal from the decision in Ranabhat (FCFCOA). Since then, it is claimed that:

(1)    Mr Jain did not open a client file for Mr Ranabhat nor did he receive any fees from him in relation to “any advice provided to him” or “the appeal application” more generally.

(2)    Mr Jain, having reviewed Mr Ranabhat’s circumstances, advised him that the decisions of the Minister and the Tribunal were substantively “correct” (because “he did not meet the English requirements on the date which he applied for the relevant visa”: see Ranabhat [5]; cf cl 186.232 of Schedule 2 of the Migration Regulations 1994 (Cth)).

(3)    Mr Jain informed Mr Ranabhat that the decision in Ranabhat (FCFCOA) “appear[ed] to be correct” and that “the [Tribunal] or Courts have no discretion in the matter because he [did not] meet the English requirements at the time of lodging his subclass 186 visa application”. In this context, Mr Jain alleges that he expressly told Mr Ranabhat that:

(a)    he did not consider Ranabhat (FCFCOA) to be infected by jurisdictional error;

(b)    his bridging visa would expire 28 days after the date on which the decision in Ranabhat (FCFCOA) was handed down; and

(c)    there was a 28-day period in which to lodge an appeal of Ranabhat (FCFCOA).

(4)    Mr Jain investigated various “alternative visa options” for Mr Ranabhat. One such option was to apply for another Subclass 186 Visa, which, as Mr Jain explained, would require Mr Ranabhat to “go offshore and lodge it from offshore and remain offshore until the visa [was] granted”. Mr Ranabhat was, however, “extremely hesitant” to do so: “he had spent a significant time in Australia, and … it would be too difficult for him to adjust living in Nepal”. Thus, despite Mr Jain “repeatedly advising Mr Ranabhat to leave Australia and apply for a subclass 186 visa offshore”, Mr Ranabhat instead determined to lodge an appeal against the decision in Ranabhat (FCFCOA).

(5)    Mr Ranabhat requested Mr Jain “assist him in drafting the appeal application, however noted that he wanted to represent himself to put his case forward”. Again, it is said that Mr Jain “expressly informed” Mr Ranabhat that he did not hold “any prospects of success in his application, and that it would fail”. Nevertheless, Mr Ranabhat “insisted” on proceeding with the appeal.

(6)    Mr Jain assisted Mr Ranabhat in drafting the Notice of Appeal and informed him of the fee for filing such a notice with the Court (being $5,695.00). The Notice of Appeal was drafted in the following terms:

1.    The Federal Circuit and Family Court of Australia has made a mistake by dismissing my judicial review appeal by determining that the Administrative Appeal Tribunal’s (AAT) decision was not affected by the jurisdictional error.

2.    Having not satisfied the competent English language requirement as required by cl 186.232 of Schedule 2 of the Regulations, the Tribunal affirmed the delegate’s decision, and the court dismissed by application.

3.    The court’s decision was unreasonable because the Tribunal did fail to consider and understand my personal circumstances and level of English as part of assessment of visa application, subclass 186.

a.    The Tribunal neglected my claims that my migration agent advised me that my studies in Australia is sufficient to meet the English requirements for the purpose of the visa.

b.    As a visa applicant with limited legal knowledge, I relied on the expertise and advise of my migration agent and hence I shouldn’t be punished for a third-party mistake or incompetencies.

c.    I was capable of taking IELTS or PTE exams and meet the requirements if my migration agent has informed to do so.

4.    The court did not give due weightage to the Tribunal’s failure to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information when assessing whether I met the requirements for the visa including subclause 186.232.

a.    The Tribunal ignored the evidence that my English competency is good otherwise, except that it was not evidenced via IELTS or PTE.

b.    Me and my wife are disadvantaged because of third party mistakes but it was ignored by the Tribunal.

5.    The court did not recognise that the Tribunal failed to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information.

a.    The Tribunal failed to provide me to opportunity to address the English requirements by providing new evidence of IELTS or PTE.

b.    The Member failed to follow the Directions and consider the benefit of my employment would bring to an Australian employer as the 186 nomination was approved by the Department of Home Affairs.

(7)    subsequent to the filing of the Notice of Appeal (on 12 November 2024), Mr Ranabhat maintained communications with Mr Jain. Again, Mr Jain claims that, at some time prior to the hearing date of the appeal (being 30 July 2025), he “advised [Mr Ranabhat] to withdraw the application as it had no prospects of success”.

Legislative framework

6    It is accepted that the general rule in relation to costs, albeit not invariable, is that “costs follow the event”: see, eg, Kazar (Liquidator) v Kargarian (2011) 197 FCR 113, 116 – 117 [9]; Dalton v Attorney-General of the Commonwealth of Australia (No 2) [2025] FCA 718 [3]; Rainforest Reserves Australia Inc v Minister for the Environment and Water (Costs) [2025] FCA 702 [17] – [19]. Here, application of that “rule” would dictate that the respondents, having successfully defended the appeal in Ranabhat, are entitled to be paid their costs by the appellants. However, given Mr Jain’s evidence, the force of such conclusion must be assessed in light of the operation of ss 486E and 486F of the Act. Such provisions are to be found within Part 8B (“Costs orders where proceedings have no reasonable prospect of success”) and relevantly provide as follows:

486E    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.

486F     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.

7    The following matters ought to be kept in mind when considering the application of Part 8B.

8    First, a stated purpose of the Part is to “deter the initiation or continuation of proceedings that are an abuse of a court’s processes and which waste court resources”: Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75 [21], citing Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 18 [54] (Explanatory Memorandum). In this respect, Part 8B seeks to diminish the deleterious effects of unmeritorious litigation on the proper functioning of the Australian judiciary (such litigation serving to, for instance, delay the resolution of meritorious cases and strain judicial resourcing: see BUK16 v Minister for Immigration and Border Protection [2020] FCA 558 [56] (BUK16)).

9    Second, another stated (“protective”) purpose of the Part is to “safeguard litigants so that they are not encouraged to pursue unmeritorious migration litigation”: Explanatory Memorandum 18 [55]. That is particularly so because persons in the position of the litigant seeking relief are often in a vulnerable position: BUK16 [55] – [57]; see also SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482, 487 – 488 [26] (SZFDZ).

10    Third, it is clear beyond demonstration that the Part seeks to deter practitioners from acting to assist litigants in the advancement and prosecution of migration litigation, save where proper consideration is given to its “prospect of success”: see SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550, 562 – 563 [56] (SZTMH); SZFDZ 488 [27].

11    Fourth, Part 8B is a legislative response to the recognised long history of unmeritorious appeals being pursued for ulterior purposes: SZFDZ 487 – 488 [26]; Explanatory Memorandum 2. It is notorious that migration litigation is, by its nature, liable to be hijacked by unsuccessful visa applicants with unmeritorious claims seeking only to delay their removal from Australia: see, generally, Explanatory Memorandum 18 [56], 18 [51]; Commonwealth, Parliamentary Debates, House of Representatives, 10 March 2005, 2 (Phillip Ruddock, Attorney-General) (the Ruddock Reading); Addendum to the Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth) 7; Explanatory Memorandum, Migration Legislation Amendment Bill (No. 6) 2001 (Cth) 7 – 8 [15]; Explanatory Memorandum, Migration Legislation Amendment Bill (No. 2) 2008 (Cth) 20 [113]; see, eg, Azace v Minister for Immigration & Citizenship [2012] FMCA 1152 [17]; SZJWF v Minister for Immigration [2008] FMCA 672 [20]; SZHLV v Minister for Immigration [2008] FMCA 134 [27] – [32]; NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 [17] – [18]. Sometimes, that is motivated by a desire to afford the applicant further time in which to continue to earn money whereas, on other occasions, it is for the purposes of gaining additional time in which to lodge applications for other visas. In either instance, the litigation is being pursued for a purpose other than that which the appeal process is designed to achieve.

12    Fifth, an order for costs can be made against a legal practitioner who contravenes s 486E of the Act even if their actions were “well intentioned”: see, eg, DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120 [24] (DAB16), citing SZFDZ 488 [27].

13    Sixth, it is important that, in the exercise of power under Part 8B, care be taken not to dissuade practitioners from providing assistance to vulnerable litigants who find themselves in difficult circumstances: SZTMH 562 [55]. It must be kept squarely in mind that legal practitioners are an integral cog of our adversarial system of justice and contribute enormously to the resolution of disputes in a just and fair manner. They should not be deterred from providing their services to deserving clients. That said, whilst the operation of Part 8B of the Act should not be seen to be some Sword of Damocles dangling over the head of the practitioner, it was and remains an appropriate legislative response to a pressing issue and it is intended to operate as a deterrent to inappropriate behaviour: recall Explanatory Memorandum 18 [54]. It must be observed that the lack of preparedness by the judiciary to wield the power in s 486F – this Court has done so less than five times since its inception in 2005 – and, indeed, the failure of the Department of Home Affairs (the Department) to seek to rely upon it, can be seen to be having the expected results. The vast number of unmeritorious migration cases which continue to plague the courts, such as that now in question, strongly suggests that Part 8B of the Act has lost some of its sting.

14    Seventh, contravention of s 486E of the Act rests upon proof of three “elements”: DAB16 [47] – [50]. They are that:

(1)    a person (i.e., Mr Jain) has encouraged another person (i.e., Mr Ranabhat) to commence or continue migration litigation in a court (see the chapeau to s 486E(1));

(2)    the relevant litigation had no reasonable prospect of success (see s 486E(1)(a)) – though it need not be shown that it was “hopeless” or “bound to fail” (s 486E(2)); and

(3)    the legal practitioner did not give proper consideration to the prospects of success of the litigation or that a purpose in commencing or continuing the litigation was unrelated to the objectives which the court process is intended to achieve (see s 486E(1)(b)).

15    Eighth, the word “encourage” in s 486E(1) of the Act is used in its ordinary sense. That is, it includes inspiring, animating or inspiriting a person to act, or to embolden or make confident, and to incite, induce or recommend. The context of s 486E is important here. That section is contained within a Part of the Act that is designed to avoid the wasting of the ever-diminishing resources of the Court upon unmeritorious litigation: Explanatory Memorandum 18 [54]. Any act that encourages litigants to engage in such proceedings falls within the scope of the section.

16    Ninth, by s 486F(1) of the Act, the Court has a discretion to exercise the power contained in it once it has been shown that a contravention of s 486E has occurred. The discretion is granted in unfettered terms and is to be exercised taking into account all the circumstances of the case.

17    In light of the foregoing, the relevant question for determination is as follows: did Mr Jain act in breach of s 486E of the Act and, if so, should he be ordered to pay the costs of the appeal – comprising, relevantly, any costs of Mr Ranabhat and the Minister – under s 486F of the Act?

Did Mr Jain breach the obligation where there is no reasonable prospect of success?

18    It is pellucid that Mr Jain acted in breach of s 486E of the Act. Indeed, he appeared to accept as much at the hearing on 28 August 2025. In the first instance, it is not controversial that he encouraged Mr Ranabhat to instigate the appeal in this Court. He did so by drawing the Notice of Appeal which, although couched in legalese that articulated apparently legitimate grounds, was lacking in substance and no more than a sham. Relatedly, and as identified in Ranabhat (at [27], [32], [33], [39], [46], [49]) and as was accepted by Mr Jain, both orally and in material provided to the Court, the grounds of appeal were entirely hopeless. As such, by preparing the Notice of Appeal, Mr Jain emboldened or encouraged and advanced Mr Ranabhat in his pursuit of litigation that had “no reasonable prospect of success” (see s 486E(1)(a) of the Act).

19    Some faint argument was advanced that Mr Jain had given the prospects of the appeal “proper consideration” because he had appropriately assessed the veracity of the grounds, even though he determined that they were nil (recall supra [5(3)], [5(5)], [5(7)]). There is no need to reach any conclusion about that proposition in this matter, though it is quite unpalatable to regard the current circumstances as giving appropriate consideration to the merits of the appeal.

20    That aside, it is clear that the terms of s 486E(1)(b)(ii) of the Act are also satisfied in this case. Plainly, a purpose in the commencement or continuation of the present appeal was unrelated to the objectives which the court process is designed to achieve. Mr Jain acknowledged that this was so. Specifically, he claims to have understood the appellants’ purpose for instigating and continuing the appeal as being one referable to delay (in that, by having his case continue within the courts, Mr Ranabhat would be afforded further time in which to apply for a different visa). On any view, such a motivation is not consistent with the objectives of the court process and there can be no doubt that the institution and continuance of the appeal was an abuse of process: see White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169, 239 – 240.

21    It follows that the Court’s discretion to make a costs order under s 486F of the Act is enlivened.

An appropriate order as to costs against Messrs Ranabhat and/or Jain

22    In light of the foregoing conclusions, it might be thought, prima facie, that an appropriate order would render Mr Jain liable for the Minister’s costs of the proceedings. Further or alternatively, it might be thought to be appropriate to order that he return any fee received from Mr Ranabhat. However, on closer inspection, neither alternative proves satisfactory. In the first instance, the Minister refused to seek an order against Mr Jain for the payment of his costs of the appeal. This is dealt with below. In the second instance, Mr Jain did not charge Mr Ranabhat any fees (at least per the Jain Affidavit: see supra [5(1)]) and no suggestion was made to the contrary.

23    Further, it need be acknowledged that Mr Jain, in his affidavit, mitigated the consequences of his conduct to some degree. He acknowledged the error of his conduct in providing assistance to Mr Ranabhat. He has sought professional advice and has been entirely open and transparent about the circumstances of his engagement with Mr Ranabhat. All of these weigh in favour of according some degree of leniency to Mr Jain. Indeed, where he has been forthright and open about his conduct and its contravening nature, due recognition should be accorded.

24    Nevertheless, it is, unfortunately, necessary to impose some penalty upon him for a variety of reasons, not in the least to identify a specific and general deterrent in relation to his conduct. That is particularly important given the endemicity of unmeritorious migration litigation in this Court in 2025. Whilst the statistics pertaining to the success rate of migration cases decided at hearing are not presently before the Court, it is unlikely that the Attorney-General’s observation some 20 years ago that a “very large proportion” of them are not successful (see the Ruddock Reading 1) lacks force today. It also remains the case that unmeritorious appeals continue to be run in this Court by litigants who appear for themselves, notwithstanding the fact that, upon the material before the Court, it is clear that they have had some measure of assistance from a legal practitioner in the preparation of their case. The Court should not tolerate practitioners assisting in the bringing of unmeritorious appeals by participating only in the periphery.

25    Chief amongst the sequalae of that conduct is the draining of the Court’s resources. That begins from the moment that the matter is filed with the Court, for the relevant Registry staff are then required to consider it (and all accompanying material provided), make the requisite orders and allocations, and manage the matter through to a hearing of the appeal. That is not inexpensive.

26    Once the hearing commences, substantial amounts of further costs are expended. They include the cost of the carriage of the hearing, including the expenses of the Court staff, Associates, transcription staff, interpreters, and of the Judge themselves. Following the hearing, it is often necessary to deal with the appeal in an appropriate and considered manner. That includes the preparation of Reasons for Judgment which, again, consumes time and expense. When such things are multiplied over the multiplicity of cases, the cost involved is significant.

27    In these circumstances, where the conduct of Mr Jain has facilitated yet another litigant to drain the Court’s resources, it is impossible to avoid the imposition of some measure of disapproval. A difficulty in this respect, however, is that Mr Ranabhat is not a worthy beneficiary of the making of an unconditional order under s 486F of the Act. After all, it was he who, having been given advice on multiple instances as to the inappropriateness of his appeal, nevertheless pursued it for the ostensible purposes of delaying any action in his removal from the country.

28    However, the Court is limited to the making of orders in s 486F(1) of the Act once it has reached the conclusion that there has been a contravention of s 486E. In the circumstances, where Mr Ranabhat paid $5,695 to the Court to file the Notice of Appeal, it is appropriate that Mr Jain repay $2,000 of that sum to Mr Ranabhat. Although that amount is not significant, it represents an expression of the Court’s disapproval of Mr Jain’s conduct whilst acknowledging his very appropriate response to the Court’s indication of its concern.

29    In relation to the Minster’s costs of the appeal, it is noted, again, that the Department chose not to seek any costs against Mr Jain. Instead, in correspondence sent to the Court on 26 August 2025, its legal representatives identified its position as follows: “the first and second appellants should pay the Minister’s costs fixed in the amount of $4,000.00”. That was a most curious stance to take. Here, as has been indicated, the satisfaction of s 486E of the Act was pellucid, even to the extent of being admitted. The Department was given every opportunity to consider its position in relation to obtaining an order for costs against Mr Jain. When it declined to do so, the solicitors for the Department were pressed as to the reasons for the inexplicable failure to take up the tool expressly granted by the legislature to deter the wastage of costs and judicial resources. With respect, no satisfactory explanation was given. For instance, it appeared to be said that the Department was concerned that making an application for costs against Mr Jain might deter practitioners from acting for vulnerable, self-represented litigants in the future. In the current circumstances, that, of course, is a bizarre reason, and one worthy of much criticism.

30    Though care should always be taken not to exercise the power in s 486F of the Act if it would deter proper and reasonable practitioners from providing honest and appropriate legal services to worthy people, that is not the situation before the Court. Here, the appeal had no reasonable chance of success. So much was obvious to all involved. To suggest that the Court should not make a costs order against a legal practitioner notwithstanding their blatant violation of s 486E of the Act because it might deter others from acting properly lacks any credibility whatsoever. Similar submissions that point to the fact that Mr Jain did not profit from the appeal nor was motivated by ill will or malice are rendered irrelevant by the express purpose of the relevant Part of the Act: namely, “to deter the initiation or continuation of proceedings that are an abuse of a court’s process and which waste court resources and to safeguard litigants so that they are not encouraged to pursue unmeritorious litigation” (Explanatory Memorandum 18 [54]).

31    It should be identified, expressly, that any decision which was taken by the Department in this matter occurred at a level below that of the Minister. No criticism can or should be levelled at the Minister for the Department’s conduct in this case.

32    Here, where the Department could have sought an order for costs against Mr Jain who, on any view, was more likely than not to have paid them, it is highly inappropriate for it to seek any other order for costs. By its conduct, the Department demonstrated that it has no interest in the preservation of taxpayers’ money held by the Commonwealth and, that being so, there is no reason why the Courts should indulge it by making an order against Mr Ranabhat. It may also be noted that it is somewhat notorious that costs orders which are made against unsuccessful visa applicants are rarely, if ever, enforced. The liability created by an order for costs merely exists as a bar which might prevent the applicant from returning to Australia until it is paid.

33    It follows that the Department is not deserving of any order for costs in this case and none should, therefore, be ordered.

Conclusion

34    In the result, the following conclusions can be drawn:

(1)    Mr Jain’s assistance of Mr Ranabhat was in violation of s 486E of the Act.

(2)    Mr Jain should pay Mr Ranabhat $2,000 pursuant to s 486F(1) of the Act.

(3)    the Minister is not entitled to recover its costs of the appeal.

Associate:    

Dated:    17 December 2025