SZTOG v Minister for Immigration and Border Protection

The certification as to reasonable grounds - s 486I 11 Section 486I provides as follows: Lawyer's certification (1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. (2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been. Section 486I forms part of a broader range of statutory provisions found within the Migration Act designed to discourage the pursuit of proceedings having no reasonable prospects of success. Within that Act, Pt 8A provides for "[r]estrictions on court proceedings". Section 486I appears within Pt 8B which provides for "[c]osts orders where proceedings have no reasonable prospect of success". 12 The certificate required to be provided pursuant to s 486I is no mere formality. It is not satisfied merely by a ritual incantation on the part of the person providing the certificate that "there are reasonable grounds for believing" that a proceeding has "reasonable prospect of success". 13 Notwithstanding the importance of the provision, it is a provision which has received scant judicial attention. 14 In SZTMH v Minister for Immigration and Border Protection [2015] FCA 124, (2015) 230 FCR 550, Rangiah J referred to ss 486E and 486F. Section 486E, also within Pt 8B, prohibits a person from encouraging a litigant to commence or continue migration litigation if the litigation has no reasonable prospect of success. Section 486F provides for the making of costs orders where a person acts in contravention of s 486E. His Honour went on to make the following more general observations as to the purpose of Pt 8B (at 562 to 563): [54] The policy rationale behind Pt 8B of the Act is not difficult to discern. The legislature was concerned to discourage lawyers and other persons from encouraging the commencement or continuation of migration litigation that is without merit. In SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482 (SZFDZ), Moore J said of Pt 8B: [26] [Section 486F] is part of a recently enacted costs regime embodied in Pt 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. [55] While Parliament intended to discourage persons from encouraging others to make and continue unmeritorious applications in migration cases, it is evident from Pt 8B that Parliament was also concerned to balance competing aspects of the public interest. 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": Ridehalgh v Horsefield [1994] Ch 205 at 226. If costs are too readily awarded against lawyers and other persons, even more litigants (many of whom have little or no English and no familiarity with our legal system) will have to represent themselves in migration litigation, increasing the burden on the courts and potentially decreasing the quality of justice that is delivered. Parliament balanced these competing considerations by building some protections for lawyers and other persons into Pt 8B. [56] Section 486E(1) is not contravened merely because the migration litigation has no reasonable prospects of success. For the provision to be contravened it must also appear that the person has not given proper consideration to the prospects of success, or that a purpose in commencing or continuing the migration litigation is unrelated to the objectives the court process is designed to achieve. These requirements reflect the circumstances in which costs may be awarded against a lawyer under the general powers of courts to award costs against a non-party, including s 43(1) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). In Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155, the Full Court said at [44]: There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success. There nevertheless remains the need to adopt a "balanced" approach, especially bearing in mind the fact that much litigation pursued in respect to the Migration Act is pursued by unrepresented litigants: SZVAG v Minister for Immigration and Border Protection [2015] FCA 176. Rares J there observed: [26] The Federal Circuit Court and this Court must be mindful in migration litigation that s 477(1) of the Migration Act provides that applicants who seek to challenge adverse migration decisions, including those of the Tribunal, have only 35 days to file an application for a remedy in the Federal Circuit Court. Many such applicants have no capacity to pay for legal advice, and often depend upon persons acting pro bono in their interests, or having to act for themselves. The time constraints imposed by the Act and the particular obligations imposed by s 486I on legal practitioners who act for applicants in preparing proceedings must be balanced, having regard to the interests of justice and the requirements of the legislation, so that the conduct of all litigation in the Federal Circuit Court can proceed efficiently, but in a way that achieves an adequate time for applicants to formulate and prepare the substantive case which they wish to run. … 15 By its express terms, s 486I imposes a requirement upon a legal practitioner to properly direct attention to whether the step should be taken to commence litigation. Section 486F, it may be noted, confers a variety of powers, including a power to order that a person who acts in contravention of s 486E is to pay the costs incurred. 16 Where an applicant is legally represented, it is not in the interests of the public, the Court, a respondent or an applicant for proceedings to be commenced unless the legal practitioner has given proper and adequate consideration to the question of whether any judicial proceeding has "reasonable prospect of success". Section 486I requires the legal practitioner to form a belief as to the existence of such a prospect. The proper discharge by the legal practitioner of the requirements imposed by s 486I forms an important safeguard against abuses of the process of this Court. The requirement imposed by s 486I also goes beyond the duty owed by a legal practitioner to his client and goes very much to the separate duty owed by the practitioner to the Court itself. The sanctions that may be exacted upon a lawyer who provides a certification without satisfying himself as to whether a proceeding has "reasonable prospect of success" may well extend beyond an order for the payment of costs pursuant to s 486F. 17 Where a proceeding is commenced by way of an appeal in circumstances where an ex tempore judgment has been delivered but not reduced to writing until sometime thereafter or where orders are made by a primary Judge without reasons then being delivered, the obligation to comply with s 486I nevertheless remains. Even in the absence of reasons having been delivered, a lawyer may nevertheless form a belief that there are "reasonable grounds for believing that the migration litigation has a reasonable prospect of success" by reason of (for example) a denial of procedural fairness which emerged during the course of a hearing. 18 But it is not self-evident how a lawyer could form a belief on "reasonable grounds" that a proceeding has "a reasonable prospect of success" without at least directing attention to the Grounds of Appeal and without at least attempting some formulation of the content of those Grounds. The present proceeding arises in even more stark circumstances than those presented in Chen v Minister for Immigration and Citizenship [2013] FCA 1137, (2013) 218 FCR 561, where Logan J observed (at 563 to 564): [12] Section 486I forms part of a regime in Pt 8B of the Migration Act directed to the end of prohibiting the encouragement of litigants to institute "migration litigation" as defined, without reasonable prospect of success (which is not, by s 486E(2), equated only with litigation which is hopeless or bound to fail). The provisions of Pt 8B must be construed and administered according to their terms. … All that it is necessary to observe for present purposes is that it is difficult to see how a legal practitioner could, for the purposes of s 486I, certify in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success where the grounds in the notice of appeal concerned are pleaded with such generality as to be devoid of meaningful content. On the facts of the present case, the Notice of Appeal - neither initially nor thereafter - set forth any Grounds of Appeal. 19 The basis upon which the lawyer in the present proceeding formed such a belief was not further explained. On the facts of the present case, ex tempore reasons had been provided and it may be that those reasons - albeit expressed orally - may have provided the lawyer with a basis upon which an opinion could have been formed as to the prospect of success. But, in the absence of some explanation being provided by the lawyer, the basis upon which any belief was formed - if in fact a belief was formed - remains a matter of speculation. 20 In the absence of there being a basis upon which any belief could be formed that there are "reasonable grounds" for believing that a proceeding has "a reasonable prospect of success", however, the proceeding should not be "commenc[ed]". In the absence of a meaningful certification as required by s 486I, a proceeding is liable to the very real prospect that it will be summarily dismissed. 21 Section 486I, it must nevertheless be recognised, may place a lawyer in an "invidious position" if an extension of time is not available in circumstances where a proceeding is not commenced until after reasons become available: cf. Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [37] per Moore, Bennett and Buchanan JJ. Questions may also arise as to whether a Notice of Appeal which has been filed in this Court is even susceptible of amendment so as to later provide the "missing" Grounds of Appeal if the proceeding itself should not have even been "commenc[ed]". It would not serve the "policy rationale" sought to be achieved by Pt 8B of the Migration Act (cf. SZTMH v Minister for Immigration and Border Protection [2015] FCA 124, (2015) 230 FCR 550) if the prohibition in s 486I were to be ignored. 22 In the present proceeding there has been no attempt to formulate the Grounds being advanced for resolution either when the proceeding was commenced or at any time thereafter. The absence of any attempt to formulate any such Grounds falls far short of the many Notices of Appeal in other migration appeals which at least attempt some formulation of the Grounds to be relied upon even if those Grounds are directed to factual errors or errors committed not by the primary Judge but by the Minister's delegate.

The absence of Grounds of Appeal 23 Separate from any consideration as to whether the questionable certification provided in the present appeal would of itself provide a reason for summarily dismissing the proceeding, there remains the fact that the Notice of Appeal as filed fails to identify any Ground of Appeal. 24 The jurisdiction being presently exercised by this Court is the jurisdiction conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) to hear "appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth". 25 This Court has no jurisdiction to conduct some general supervisory review of decisions of the Federal Circuit Court. It has no jurisdiction to give any advisory opinion as to what it perceives to be the legal or factual merits of a decision made by a Judge of that Court. 26 The form and content requirements of a Notice of Appeal are provided for in Pt 36 of the Federal Court Rules 2011 (Cth). Rule 36.01(2) provides as follows: The notice of appeal must state: (a) whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and (b) if only part of the judgment, or some of the orders, is appealed from - the part of the judgment or the particular orders appealed from; and (c) briefly but specifically, the grounds relied on in support of the appeal; and (d) the judgment or orders the appellant wants instead of the judgment or orders appealed from. Notwithstanding the width of the discretionary power conferred by r 1.34 to dispense with compliance with any of the Rules (cf. Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 414 per Neaves J), it would be difficult to envisage circumstances in which an order would be made dispensing with compliance with r 36.01(2)(c) so as to permit a Notice of Appeal to be filed without the specification of any Grounds of Appeal or without any attempt to formulate a Ground or Grounds of Appeal. In the absence of any specification of the Grounds of Appeal sought to be advanced by an appellant, the prospects of injustice to a respondent would remain very real (cf. Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 403 to 404 per McGregor J). 27 Although a failure to comply with all of the requirements imposed by r 36.01(2) may not render an appeal "incompetent" (cf. Zegarac v Dellios [2007] FCAFC 58 at [7] per North J (Weinberg and Jessup JJ agreeing); Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121 at [29], (2012) 207 FCR 390 at 396 per Griffiths J), a failure to specify any Grounds of Appeal (it is respectfully concluded) does render the appeal incompetent. 28 It is difficult to envisage a requirement more fundamental to the proper administration of justice when resolving an appeal than the requirement to specify the Ground or Grounds of Appeal. Those Grounds form the very "basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied" and should "provide a sensible framework for … submissions": Commonwealth of Australia v Evans [2004] FCA 654 at [35], (2004) 81 ALD 402 at 411 to 412 per Branson J citing Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [4] to [5], (2002) 234 FCR 549 at 551 per Branson J . 29 In the absence of any Grounds of Appeal being provided, and where the lawyer for the Appellants (at the time the Notice of Appeal was filed) has expressly stated that Grounds "will be prepared", this Court should not proceed upon the basis that the Grounds to "be prepared" will necessarily be Grounds which assert that the primary Judge erred in rejecting the Grounds previously advanced before the Federal Circuit Court. It is simply a matter of speculation as to what the Grounds of Appeal would provide. Nor should an order be made in the present proceeding dispensing with compliance with r 36.01(2)(c) where the Appellants have previously had the assistance of a lawyer and where it has been recognised that Grounds of Appeal would be provided. 30 In the absence of the specification of Grounds of Appeal which focus the attention of this Court upon perceived appellable error committed by a primary judge, a Notice of Appeal should normally be struck out. Although this Court may in some circumstances attempt to redraft or construe otherwise ill drafted Grounds of Appeal in an effort to identify appellable error, it is no part of the function of this Court to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds. Even judicial attempts to revise ill-drafted Grounds of Appeal run the very real risk of prejudicing the impartial administration of justice: cf. Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jagot JJ. For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far. 31 Even assuming that s 486I does not preclude a later amendment to an appeal which should not have been "commenc[ed]" and that the Notice of Appeal was not "incompetent" when filed, there is in any event no self-evident error in the reasons of the primary Judge so as to warrant extending an opportunity to the Appellants to redraft their Notice of Appeal in a manner which complies with r 36.01(2).

CONCLUSIONS 32 In the absence of the Notice of Appeal setting forth any Grounds of Appeal, and in the absence of Grounds of Appeal being identified, the proceeding is to be dismissed. 33 There is no reason why the First and Second Appellants (being the husband and wife) should not be ordered to pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The First and Second Appellants are to pay the costs of the First Respondent. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.