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.