NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR DECISION 1 The application filed in this proceeding purported to seek review of a decision of a delegate of the Minister given on 18 July 2002. By a letter dated 18 July 2002 the applicant had been advised by an officer of the Department of Immigration & Multicultural & Indigenous Affairs that: "[y]our request for the exercise of the Minister's power under s 48B of the Migration Act was assessed against the Minister's Guidelines for Purported Further Applications for a Protection Visa subject to S48B and Requests for Ministerial Intervention under S48B. However, your case did not meet these Guidelines, and will not be referred to the Minister for consideration under section 48B." 2 At the time of the scheduled first directions hearing on 8 August 2002 Ms Warner appeared for the Minister and the applicant, who was in detention, appeared without legal or other representation. As a result of oversight, no interpreter had been arranged. The applicant speaks very little English. The directions hearing was relisted for 12 August 2002 at 9.30 am. 3 At 9.30 am on 12 August 2002 when the matter was called Ms Warner, the applicant and an interpreter were in Court. The applicant indicated that he was receiving assistance from Mr George Fonua and that he was expecting Mr Fonua to come to Court that morning. The directions hearing was adjourned to see if Mr Fonua would arrive. Shortly after 10.00 am Mr Fonua did arrive and the directions hearing resumed. 4 In response to questions from me Mr Fonua indicated that, although he was neither a lawyer nor a registered migration agent, he was advising the applicant in this matter. Mr Fonua asserted that he had "about twenty five years'" of knowledge of the Migration Act 1958 (Cth) ("the Act") and that he was allowed to provide immigration assistance under the Act but not allowed to ask for costs. Mr Fonua confirmed that he drew the application in this matter. 5 Mr Fonua handed to the Court short minutes of order which provided, amongst other things, for the respondent to file and serve a bundle of relevant documents and for the applicant to serve notices on the Attorneys‑General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1903 (Cth). Ms Warner objected to the making of orders of the kind proposed on the basis that they assumed the validity of the application. She challenged the validity of the application. 6 In response to questions from me, Mr Fonua indicated that he wished to address the Court on the issue of the validity of the application and that he was ready to do so immediately. The applicant confirmed that he wished Mr Fonua to speak for him on this issue. I therefore heard first from Ms Warner and then from Mr Fonua on the issue of the validity of the application. I delivered short ex tempore reasons for dismissing the application (see NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1016). 7 The Minister sought an order that Mr Fonua pay the Minister's costs. I asked Mr Fonua if there was anything that he wished to say about the Minister's application. I concluded, I now consider too hastily, from the non‑responsive nature of his reply that Mr Fonua did not wish to address the Court in opposition of the Minister's application. I ordered that Mr Fonua pay the Minister's costs of the proceeding. 8 Upon reviewing the transcript of the directions hearing held on 12 August 2002 I became concerned that, notwithstanding Mr Fonua's claim of relevant experience, he may not have been aware of the power of the Court to order the payment of costs by a non‑party. I caused the Minister's representative and Mr Fonua to be advised that the matter would be relisted on 16 August 2002 to allow the question of costs to be further considered. I took the view that it was not necessary for the applicant to be brought to the Court again. 9 On 16 August 2002 I set aside the costs order made by me on 12 August 2002 which had not been entered (see O 35 r 7(1) of the Federal Court Rules). I indicted that I was doing so because of my concern that Mr Fonua may not have understood the extent of the Court's powers. I went on to inform Mr Fonua of the power of the Court to order a non‑party to pay costs and indicated to him, in general terms, the circumstances in which orders of that kind had been made. 10 The Minister's application for an order that Mr Fonua pay his costs of the proceeding was renewed. I suggested to Mr Fonua that he might like time to consider his position with respect to the application and perhaps to take legal advice. I made it plain that I was willing to allow him the necessary time. Mr Fonua indicated that he did not require time to consider his position or to take legal advice. He stated that if a costs order was made against him he would declare himself bankrupt. He indicated, in effect, that it was required by his culture that he help those of Tongan nationality who required his help. 11 In Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899 ("Shen's case") Madgwick J made an order that a migration agent pay the Minister's costs to the extent that the migration agent caused them to be incurred or enlarged. His Honour observed, consistently with established authority, that the Court's jurisdiction to award costs is wide and, subject to any particular Act, is not qualified except that the discretion must be exercised judicially. See also Knight v FP Special Assets Limited (1992) 174 CLR 178 and Yates v Boland [2000] FCA 1895 (FC). 12 Madgwick J pointed out in Shen's case at [16] that it is an abuse of the Court's process for a party to institute proceedings which are quite hopeless and that the Court has power to order costs against a party's agent who abuses the Court's process. This power, his Honour noted at [17], is ordinarily to be seen as one intended to compensate the successful party in respect of costs which it ought not to have been required to incur rather than as a punitive or disciplinary power (Myers v Elman [1940] AC 282 at 289 and 319). 13 In Shen's case at [21] Madgwick J said: "The application for review prepared and filed by Mr Shen was without any merit. Mr Shen believed this to be so from the outset and it was confirmed for him, before seeking the adjournment, by a conversation with counsel who provided assistance to Mr He under the pilot scheme. In proposing to Mr He that he seek to gain an adjournment, and in assisting him to do so, thereby encouraging the maintenance of the proceedings, Mr Shen further assisted the waste of the Court's time, as well as adding to the Minister's costs." 14 Madgwick J placed considerable weight in Shen's case on the fact that Mr Shen was a paid agent of the applicant. At [20] his Honour observed: "A migration agent performing, for reward, a legal practitioner's work in defiance of a legal proscription cannot be in any better position, as to liability for a costs order, than a lawyer. Further, in my opinion, the public interest in access to justice, to which I have referred, has nothing to say as to any need for paid agents, wrongfully performing legal work, to be free of a need to look over their shoulders to see whether a costs order might pursue them. On the contrary, it serves rather than undermines the cause of orderly and effective access to justice that persons other than qualified lawyers who wrongfully accept money for performing legal work should be at personal risk of a costs order if they aid quite hopeless litigation: the money is better directed to fully legally trained people who have the ethical obligations of 'officers of the Court'." 15 It is plain that Mr Fonua was at all relevant times well aware that, at the least, grave difficulties attended the application filed in this matter. On 12 August 2002 he told the Court: "This case is pretty hopeless and helpless, so that according to our custom I have to step in and give some assistance." 16 It is also plain that Mr Fonua drew the application without giving any real consideration to the question of the Court's jurisdiction to hear it. It seems likely that he relied on his previous experience concerning decisions of a quite different character. A search of the Court's judgment database reveals that Mr Fonua has had an involvement in this Court in a significant number of cases under the Act. However, the Act is a difficult piece of legislation. Its complexities are plainly not understood by Mr Fonua notwithstanding his involvement in previous cases. While his undoubted desire to assist Tongan nationals who come within the purview of the Act is admirable, it does not give him licence to abuse the process of the Court. 17 I entertain a suspicion that this proceeding was instituted, not because Mr Fonua considered that it had any prospect of success, but because the applicant wished to delay his removal from Australia and Mr Fonua believed that the filing of even a hopeless application in the Court was a means of achieving delay. My suspicion in this regard was fuelled when Mr Fonua on 16 August 2002 expressed displeasure that the proceeding had been given an early first return date. The early return date was a consequence of the routine application of the policy of the Court to deal as expeditiously as possible with applications filed by persons who are in detention. It had nothing to do with the particular circumstances of the applicant other than his detention. 18 Were I satisfied, rather than merely suspicious, that Mr Fonua caused this proceeding to be instituted simply to delay the applicant's removal from Australia I would not hesitate to order Mr Fonua to pay the Minister's costs. However, my suspicion falls short of satisfaction. 19 I accept Mr Fonua's statement that he has provided advice and representation to the applicant without charging a fee. To this extent his circumstances are different from those of the migration agent against whom Madgwick J made a costs order in Shen's case. However, the power of the Court to order a non‑party to pay costs is not confined to non‑parties who stand to derive financial benefit from the litigation. Each case is to be looked at in the light of its own circumstances. 20 I am satisfied that it was Mr Fonua who caused this proceeding to be instituted and that he did so without giving any responsible consideration to the question of the Court's jurisdiction to hear it. In that sense he was reckless as to whether the Court had the jurisdiction purportedly invoked by the application. 21 The exemption from the payment of fees granted by the Court to the applicant indicates that the applicant himself is without significant financial means. Mr Fonua's conduct has thus caused the Minister and ultimately Australian taxpayers to incur legal costs for which the Minister is unlikely to be compensated unless an order for costs is made against Mr Fonua. 22 The power to order a non‑party to pay a party's costs is not to be exercised lightly. For this reason I have, with some hesitation, decided not to make such an order in this case. A major factor which has ultimately led me to decide against the making of a costs order against Mr Fonua is my belief that Mr Fonua may not have understood the extent to which his conduct was inappropriate. This factor is unlikely to be one upon which Mr Fonua will be able to rely should a similar case arise in the future. 23 As is mentioned above, Mr Fonua has involved himself in the affairs of a significant number of individuals whose applications under the Act have come before the Court. Although not a lawyer, it appears that he has provided to those individuals services in connection with their applications to the Court of the kind that would ordinarily be provided by a lawyer. His motives in doing so may be exemplary. I am prepared to assume that they are exemplary. However, as is mentioned above, good motives provide no licence for abusing the process of the Court. The consequences of an abuse of process of the kind that arose in this case is first, the opposing party is put to cost and inconvenience and, secondly, the limited resources available to fund the administration of justice of this Court are expended without the interests of justice being in any way advanced. If Mr Fonua is to continue to act as the unpaid representative of applicants to this Court he would be well advised to obtain at least enough legal advice to ensure that he does not abuse the process of the Court and, even more importantly, does not mislead, and possibly prejudice, the position of the individuals who turn to him for help.