There is specific power in section 486E Migration Act, to make personal costs orders (against advisers). As Rangiah J explained in SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550, there is a balance. On one hand there is a clear intention to “discourage persons from encouraging others to make and continue unmeritorious applications in migration cases“, but on the other, “It is in the public interest that lawyers should not be deterred from pursuing their clients’ interests by fear of incurring a personal liability to their clients’ opponents“.

Relevantly 486E provides that:

(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 …..

In DAB16 v Minister for Immigration & Anor [2018] FCCA 3957, the problem for the solicitor started when the appeal court dismissed his client’s appeal and made a finding that there had been no reasonable prospects of success.

What I find interesting about this case are the other two elements, namely: (a) there was “encouragement”; and (b) “no proper consideration”.

In relation to encouragement: at [64]…. “The lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense.  Of course it is open to the lawyer to adduce evidence to rebut the inference that otherwise arises.  However, in the absence of advice and instructions, it is reasonable to infer that the carriage of a case is wholly entrusted to the legal practitioner on the client’s reasonable assumption that the litigation has some prospect of success.”

In addition the solicitor had unsuccessfully made an identical argument in a different case and described his pursuit of the matter as a “passion”. “In light of that belief, it may be fairly inferred that the weaknesses in [solicitor’s] arguments were not apparent to him and, as a consequence, it is very unlikely that the weaknesses were made known to the appellant in the form of correct and measured advice concerning the prospect of success of the litigation.” (at [67]).

In relation to “proper consideration”: at [78] Of particular concern is [solicitor’s] assumption that the primary judge (and this Court) could and should receive evidence that was not before the Authority so as to reach a different conclusion on a factual question to that reached by the Authority …. That aspect of the argument alone indicates that any consideration that was given to the merits by [solicitor] proceeded from a flawed understanding of fundamental legal principles. Any consideration founded on that flawed understanding could not be “proper consideration” for the purposes of s 486E of the Act.

[79] There may be a category of case in which a legal practitioner makes an error of judgment or proceeds from an understandable misapprehension of legal principle or in ignorance of recently decided authority or recently made amendments to the Act.  A finding that the lawyer has not given “proper consideration” in such cases may be more problematic.  I do not consider this case to fall within that category.

Creative commons acknowledgment for the photograph.

Credibility reversed

This is not the first time that I have blogged about credibility, but I re-iterate that (adverse) credibility findings are the bane of the applicant lawyer's life. The main reason is that usually (there are exceptions) an adverse credibility finding by a delegate is a...

Back to the future

A brief (recent) history of the regulation of the migration advice profession in Australia: In 1992, the Migration Amendment Act (No 3) 1992 (Cth) introduced, the Migration Agents Registration Scheme; Under that scheme, practising lawyers (who could previously give...

Fraud or unreasonableness?

The cases of Minister for Home Affairs v DUA16 and Minister for Home Affairs v CHK16 [2020] HCA 46 highlight an interesting application of legal unreasonableness to what appears to be case of fraud. It was common ground that the applicants in these cases (and probably...

Re-cancellation

Visas can be cancelled on the basis that the holder is not of good character under section 501 of the Migration Act. This usually means that the person has a "substantial criminal record". The decision to cancel is discretionary and subject to review in the AAT...

Bar the remedy not the right

The issue of people being held on Manus or Nauru having their applications for medical treatment in Australia denied often receives media coverage. Likewise, there have been a number of cases where these people have made applications to prevent their return to Manus...

Illegally Detained

It is impossible in the space I allow for a blog post to do justice to the case of AJL20 v Commonwealth [2020] FCA 1305. However, everybody who has ever studied administrative law will know that (at least in Australia) there is no such thing as an unlimited power....

Allegedly a victim of fraud

The activities of the (former) firm S&S Migration are so infamous that the Full Federal Court judgment in Katragadda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 143 commences with: "...this is yet another case...

Complete but not clear

The combined effect of section 66(2)(d) of the Migration Act and the associated regulations is that there is a strict (non-extendable) 21 day period in which an application for merits review can be lodged with the AAT. If an application is made outside of that time...

Jurisdiction and the risotto

Much to the frustration of many clients, fact finding by the AAT is not normally able to be challenged in judicial review proceedings in the courts. One very limited exception to that proposition is if the fact finding is "irrational, illogical and not based on...