Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The application 5 On 19 October 2022, following a case management hearing in that matter, Mr Kitoko applied for an extension of time to appeal from the costs order made against him. It was supported by an affidavit sworn by him on 17 October 2022. The application should have been brought in Mr Kitoko's name. The applicants should have been named, with the Minister and the Tribunal as respondents. But no point was taken about this and nothing really turns on it so I do not propose to do anything about it. 6 Each of the draft notice of appeal and the affidavit is 24 pages long. Each document is largely in the nature of a submission and reproduces the submissions Mr Kitoko prepared in the principal application. The proposed grounds of appeal appear on pp 21-2 of the draft notice of appeal. They are that: (1) The primary judge erred in: (a) failing to find that the Minister was liable for the out-of-pocket expenses either or both of the applicants may have incurred in bringing proceedings; (b) failing to find that the grounds of the applicants' claim, as formulated by Mr Kitoko were meritorious and therefore have reasonable prospects of success: and (c) failing to find that the Minister should indemnify or reimburse either or both the applicants for any out-of-pocket expenses they may have incurred because of: (i) the conduct of the Minister's "delegates" [sic] in Pretoria, the Tribunal, and the Minister's solicitor in the court below "in substantially delaying the determination of the processing for more than four (4) years; and (ii) misconduct and unprofessional conduct on the part of the Minister's "barrister", being the solicitor who appeared for the Minister at the hearing. (2) the primary judge erred in finding that Mr Kitoko encouraged the applicants to commence and continue the litigation in contravention of s 486E; and (3) the primary judge erred in determining that Mr Kitoko pay the Minister's costs under s 486F. 7 No particulars were provided to support proposed grounds 2 or 3. In his submissions Mr Kitoko argued that he provided immigration assistance to the applicants rather than encouragement. He described himself as "a close family member" and apparently informed the primary judge that he was a member of the applicants' family as he was the father of one of Ms Vela's children. 8 I referred in the principal judgment to the principles governing the determination of whether an extension of time should be granted. There is no need to repeat them here. In the present case, the relevant considerations are the explanation for the delay, the extent of the delay, whether the Minister is prejudiced by the delay but above all whether there is any merit in the proposed appeal, in the sense explained in the principal judgment. 9 The affidavit contained no explanation for the delay. In his written submissions Mr Kitoko claimed that the reason he "felt unable to lodge a leave to appeal within time was that, by virtue of his limitation in the Court proceedings as unrepresented litigant, [he] required a legal advice to be able to prepare and submit the Appeal …". He also claimed that, during the 28 days in which any appeal had to be filed, he sought legal aid but was advised that it was unlikely the matter would be funded. He added: An approach was made to a legal firm who likewise were not able to assist in the Applicant's application on what is described as a "no win/no pay basis". The Applicant is currently receiving a Centrelink pension and has no assets. The applicant is unable to afford legal assistance. 10 Besides, he added, he "apprehended" that a transcript was necessary "in order precisely to formulate grounds of appeal" and he could not afford the cost of a transcript. At the same time, however, he did not explain the relevance of the transcript and acknowledged that the alleged errors in the judgment were "in the main apparent enough on the face of the published reasons for judgment". 11 He submitted there was no prejudice to the respondents "in the sense that there is no material delay". 12 I put no weight on Mr Kitoko's explanation as it was unsupported by evidence. Not only did he not depose to any of the matters which he propounded in submissions but he did not provide any documentary material to support his contentions, such as correspondence with Legal Aid or bank statements recording Centrelink payments, or identify the firm he supposedly contacted. 13 I apprehend that the reason for the delay is that Mr Kitoko did not appreciate that, if he wanted to challenge the costs order made against him, he, personally, needed to lodge an appeal. In other words, although he should have been alert to it, he did not realise that there was a potential conflict of interest between him and the applicants. 14 The Minister raised the question of whether leave to appeal is required since there is authority for the proposition that an order for the payment of costs is an interlocutory order (see, for example, Kyriackou v Australian Securities and Investments Commission [2010] FCA 253 at [9]-[13] per Ryan J and the authorities discussed there) and orders of an interlocutory nature may only be appealed with the leave of the Court: Federal Court of Australia Act 1976 (Cth), s 24(1A). But he did not answer the question. He said he could not find any authority on point and merely speculated that the position might be different when the impugned costs order has been made against a non-party. He informed the Court that, if leave were required, he did not oppose the grant of leave. In the circumstances, and in the absence of any assistance from Mr Kitoko, I propose to proceed on a similar basis. If leave is required and the case for an extension of time to appeal is made out, I will grant leave. If not, I will refuse it. 15 An application for leave to appeal must be brought within 14 days after the date the judgment was pronounced or the order was made unless the Court grants an extension of time: Federal Court Rules 2011 (Cth) (Rules or FCR), r 35.13. A notice of appeal must be filed within 28 days of that date: FCR, r 36.03. In this case that means that, either way the delay is not insignificant. That said, the respondents did not claim to be prejudiced by it. Indeed, the Minister fairly acknowledged that he would suffer "no particular prejudice" if an extension of time were to be granted. If the proposed appeal is reasonably arguable, an extension of time should be granted.

The relevant legislative provisions 16 The relevant provisions appear in Pt 8 of the Act. 17 Section 486E 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. 18 Section 486F relevantly provides: 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; … (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. 19 "Migration litigation" is defined in s 486K as "a court proceeding in relation to a migration decision". A "migration decision" is defined broadly in s 5 and includes "an AAT migration decision", which, in turn, is defined in s 474A and includes a review of a particular Pt 5 reviewable decision. 20 There is no dispute that the proceeding in the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) was a court proceeding in relation to a migration decision. 21 Part 8B was inserted into the Act by the Migration Litigation Reform Act 2005 (Cth). Its purpose, according to the Explanatory Memorandum to the Bill (at [54]) was "both 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 migration litigation". 22 In SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482 at [26] Moore J explained that the costs regime in Pt 8B of the Act was introduced against a background of "an unrelenting stream of applications challenging decisions made under the Act" in both this Court and the Federal Magistrates Court (as the court below was then called),. His Honour observed at [26]-[27] that: 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 … …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. 23 His Honour's explanation is supported by comments made by the Attorney-General in his second reading speech. He said that the government was concerned about the high volume of migration cases, unmeritorious litigation and delays which were "impacting on the federal courts and the migration system as a whole". He also said that, having regard to the high rate of unsuccessful migration cases, which he put at 90%, the government was "concerned to ensure lawyers and other advisers on migration matters do not promote the prosecution of unmeritorious cases and claims". See Commonwealth, Parliamentary Debates, House of Representatives, 10 March 2005, pp 2-3 (Phillip Ruddock, Attorney-General). 24 In BUK16 v Minister for Immigration and Border Protection [2020] FCA 558 at [55]-[57] Charlesworth J said: [Section] 486F has (at least) two protective purposes. The first is directed toward the interests of vulnerable persons who rely upon others to provide legal advice and assistance in relation to the preparation and prosecution of migration litigation. The provision aims to ensure that persons on whose behalf migration litigation is commenced receive accurate advice as to their prospects of success so as to enable the prospective litigant to make his or her own informed assessment as to whether the litigation should be commenced at all. Such persons are vulnerable not only because they are exposed to the spectre of adverse costs orders but because they are wholly reliant on the expertise of their advisers to whom (in most cases) they are contractually obliged to pay considerable fees. The second protective purpose relates to the public interest in the proper administration of justice in migration proceedings more generally. In my view, the provisions in Pt 8B of the Act are intended in part to avoid an increase in caseloads and delays associated with the commencement and continuation of litigation having no reasonable prospects of success, and so facilitate the timely final resolution of questions concerning the immigration status of visa applicants under the Act. These two objectives are met by conferring a discretion to impose financial consequences upon those who encourage the commencement of litigation objectively having no reasonable prospects of success in circumstances where subjectively there has been no proper consideration given to the prospects.

The reasons of the primary judge 25 The primary judge held that Mr Kitoko had "relevantly encouraged the applicants to commence and continue the litigation". Her Honour reasoned: He accepted that he had formulated the grounds I have found to be unmeritorious. Mr Kitoko insisted upon being the only address for service available to the Minister and the Court prior to commencement of the hearing. When the hearing first commenced, he sought to appear for the applicants and suggested that they would lack the ability to address the Court on the application he had formulated without his assistance. As was found in SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1366; 155 FCR 482 (SZFDZ) at [21], the word "encourage" is "potentially of wide import". I find that it readily encompasses what occurred in this case. (Original emphasis.) 26 Her Honour observed that the material before the court did not establish that the litigation was commenced or continued for an ulterior purpose. The issue was whether Mr Kitoko "did not give proper consideration the prospects of success of" the application within the meaning of s 486E(1)(b)(i). Based on the reasoning in SZFDZ, her Honour held that no proper consideration had been given to the applicants' prospects of success, although she accepted that Mr Kitoko had acted with the best of intentions. Her Honour said that the material before the court did not suggest that a balanced and thoughtful assessment of the prospects had been undertaken, observing that the grounds of review "did not adequately engage with the Tribunal's decision" and "[t]he insurmountable issues" the applicants faced were made clear in the Minister's written submissions which were filed more than a year before the hearing of the judicial review application.

Ground 1 27 None of the alleged errors has any merit. 28 First, while the court had a broad discretion, the general principle is that costs follow the event. Ordinarily, that means that the unsuccessful party or parties must pay the successful party or parties' costs. Thus, if the applicants had succeeded, they might reasonably expect to recover costs (on a party and party basis) fairly and reasonably incurred in the conduct of the litigation: see, for example, von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172; 262 ALR 430 (Siopis, Cowdroy and Reeves JJ) and the definition of "costs as between party and party" in Schedule 1 to the FCR. Since they were litigants in person, however, those costs would be limited to reimbursement of out-of-pocket expenses, as Mr Kitoko recognised: Cachia v Hanes (1994) 179 CLR 403; George v Fletcher (Trustee) (No 2) [2010] FCAFC 71. But in the present case the applicants were unsuccessful. The Minister was the successful party. Mr Kitoko did not advance any reason why the general principle should not apply and none is apparent. In these circumstances, the primary judge did not err by not ordering that the Minister pay those expenses. 29 Second, for the reasons given in the principal judgment, the primary judge did not err in failing to find that the application had reasonable prospects of success or that their claims as formulated were "meritorious". 30 Third, and also for the reasons given in the principal judgment, the delay by the Minister or his delegate, although regrettable, was irrelevant. There is no material to suggest that the time it took for the judicial review application to be heard had anything to do with the Minister's solicitor. And no foundation was disclosed for the claim of misconduct or unprofessional conduct on the part of Ms Lloyd. Accordingly, there was no justification for an order that the Minister indemnify the applicants for their out-of-pocket expenses.

Ground 2 31 Section 280 of the Act imposes restrictions on persons who are not registered migration agents from giving immigration assistance. But a close family member is not prevented from doing so: see s 280(5A). Section 280(7) provides that "close family member" has the meaning given by the regulations. The relevant regulations are the Migration Agents Regulations 1998 (Cth). Clause 3H of those regulations provides that for the purpose of s 280(7): …close family member, in relation to a person, means: (a) the person's spouse; or (b) a child, adopted child, parent, brother or sister of the person. 32 Mr Kitoko is obviously not Joshua's spouse. Nor is he Joshua's child, adopted child, parent, brother or sister. It follows that for relevant purposes he is not a "close family member" of the visa applicant. 33 The question here, however, is not whether Mr Kitoko was prohibited from assisting the applicants. The question is whether there is a reasonably arguable case that he provided no encouragement to them to commence or continue the proceedings. 34 In SZFDZ at [21] Moore J said: The word "encourage" is potentially of wide import: see Employment 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. 35 The position was very similar in the present case. The originating application filed in the court below disclosed that it was prepared by Mr Kitoko, who gave his address as the address for service. He prepared written submissions and argued the case on behalf of the applicants. 36 In SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550 at [59] Rangiah J said that it was "unclear" whether the mere provision of advice and representation is enough to amount to encouragement for the purpose of the section, comparing what Moore J said in SZFDZ at [21]. But his Honour did not determine the question. Nor did Charlesworth J in BUK 16. In each case it was unnecessary to do so. 37 In the absence of a statutory definition, the ordinary meaning of the word should apply, subject to any considerations of context and purpose that might indicate otherwise. The verb "encourage" is defined in the Macquarie Dictionary (4th ed, Macquarie Library, 2005) at p 469 to mean: 1. to inspire with courage, spirit, or confidence. 2. to stimulate by assistance, approval, etc. 38 Similarly, the meanings given by the The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, 1993) at p 814 include: 1. Give courage, confidence, or hope to. 2. Make sufficiently confident or bold to do a specified action. 3. Urge, incite; recommend, advise. 4. Stimulate (a person, personal activity) by help, reward, etc; patronize; abet. 5. Allow, promote, or assist (an activity or situation); foster, cherish. 39 In oral argument Mr Kitoko insisted he did not give the applicants any hope of success, alluding to the first meaning, but ignoring others. But he led no evidence on the subject. His affidavit is silent on the circumstances of his involvement in the case. Indeed, he accepted that he assisted the applicants. At least that was his purpose. The evidence admits of no other conclusion. 40 Although there is no evidence on the question, I am prepared to assume that the applicants asked for his assistance. But that does not denote error on the part of the primary judge. 41 Further, in his submissions and in oral argument Mr Kitoko referred to assistance said to have been provided to the applicants by Laurie Ferguson, the former member for Reid in the House of Representatives. Although no evidence of these matters was adduced, Mr Kitoko told the Court that Mr Ferguson had assisted the applicants by sending a letter in support of the visa application to the Minister's delegate in Pretoria and by expressing support for the applicants' plans to appeal to the Tribunal and the FCFCoA. He did not suggest, however, that Mr Ferguson had seen either the delegate's decision or the Tribunal's, let alone read them, or that he appreciated there was no right of appeal from the Tribunal to the FCFCoA. 42 Mr Kitoko drew a comparison between Mr Ferguson's alleged assistance and his own conduct, arguing that if he had encouraged the applicants to commence or continue migration litigation then so, too, had Mr Ferguson. Even assuming that Mr Ferguson assisted the applicants in the way he asserted, I am not satisfied that their conduct was relevantly similar. It is one thing for a member of parliament to have written a letter to the Minister's delegate in support of the visa application and to have expressed support (presumably in the abstract) for the applicants' appeals. It is quite another for Mr Kitoko to have prepared court documents for the applicants and advanced arguments before the court on their behalf, particularly in light of the Minister's submissions which were unquestionably correct. 43 In any event, the comparison drawn by Mr Kitoko is irrelevant. Whether or not Mr Ferguson could be said to have encouraged the applicants to commence or continue migration litigation has no bearing on whether Mr Kitoko did so by his own actions. 44 This case is relevantly indistinguishable from SZFDZ. Mr Kitoko bears the onus of showing that he has a reasonably arguable case that the primary judge erred. But he did not even submit that her Honour erred in following SZFDZ or that Moore J was wrong in that case. 45 Clearly, by his actions Mr Kitoko stimulated the applicants to bring and continue the litigation. Even if he did not assure the applicants that they had any reasonable prospects of success, by his actions he is likely to have encouraged them to think so. 46 The question of whether the primary judge erred in holding that Mr Kitoko had not given proper consideration had been given to the prospects of success does not arise on the draft notice of appeal. In any event, there is no reason to doubt the correctness of her Honour's finding in this regard.

Ground 3 47 No particulars were provided to support ground 3 (that the primary judge erred in determining that Mr Kitoko pay the Minister's costs pursuant to s 486F) and Mr Kitoko's submissions did not suggest that it raised a basis for disturbing the orders of the primary judge that was not captured in grounds 1 and 2. I therefore infer that it is conclusory only. For the reasons given above, an appeal against the costs order would have no reasonable prospects of success.

Conclusion 48 It follows that the application by Mr Kitoko for an extension of time to appeal the costs order made against him must be dismissed. Costs should follow the event. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.