When s 486F bites: personal costs orders in migration litigation

Lawyers and others in the migration profession have obligations under Part 8B of the Migration Act 1958 with respect to migration litigation, over and above the general duties lawyers owe to the Court and the administration of justice. Section 486I prevents a lawyer from commencing migration litigation without certifying that there are reasonable grounds for believing that the litigation has reasonable prospects of success. Section 486E prohibits anyone, including lawyers, from encouraging a person to commence or continue migration litigation without giving proper consideration to the prospects of success of the litigation, regardless of any obligation to act on the instructions of the litigant. And crucially, section 486F empowers the Court to order that a person who commenced or encouraged unmeritorious migration litigation pay the costs of that litigation personally, and repay any costs the litigant paid to that person.

Historically, such orders have been rare, which has perhaps contributed to a relaxed view of these provisions adopted by some lawyers, migration agents and community members. The recent judgment of Charlesworth J in BUK16 v Minister for Immigration and Border Protection [2020] FCA 558 serves as a reminder of the importance of these obligations, but also demonstrates a novel mechanism for applicants to recover costs against parties who have improperly encouraged them to pursue unmeritorious litigation.

BUK16 was represented in migration litigation by a lawyer before the Federal Circuit Court. The lawyer argued that the Tribunal was required by s 424A to put certain country information to the applicant for comment. The Circuit Court rejected that argument as contrary to well established authority, finding there was “no doubt” it was wrong, and dismissed the application with costs. The applicant appealed against the costs order and obtained alternative representation. On appeal, Charlesworth J held that the primary judge had implicitly found that the litigation had no reasonable prospects of success and so under s 486F(2) was obliged but failed to consider whether to make a personal costs order against the lawyer (at [47]).

The lawyer who represented the applicant before the Circuit Court did not take up the opportunity to be heard by the Federal Court beyond writing a single letter. The lawyer did not seek to be joined in the proceeding or to put on evidence (at [39]). As a result, the appellant’s evidence that the lawyer had promised a 100% chance of winning the case, said he would not otherwise take their money, and provided no legal advice, went unchallenged (at [40], [62]). Unsurprisingly, Charlesworth J found on that unchallenged evidence that the lawyer had encouraged the applicant to commence the litigation without giving proper consideration to whether it had reasonable prospects of success (at [62], [66]-[67]).

Charlesworth J identified that Part 8B was directed to at least two protective purposes: first, to the interests of vulnerable persons who are reliant on others to provide legal advice and assistance in relation to commencing and prosecuting migration litigation; and secondly, to the interests of the administration of justice to prevent the commencement and continuation of unmeritorious litigation (at [55]-[56]). Her Honour determined that in the circumstances of this case making a personal costs order against the lawyer, and ordering him to refund the fees he had charged, pursuant to s 486F was consistent with those protective purposes and exercised the discretion to make those orders (at [70]-[73]).

BUK16 highlights a number of important matters for migration practitioners and others involved in this area:

1. The obligation to consider whether migration litigation has reasonable prospects of success is a serious one with serious consequences if breached. That obligation serves to protect both the interests of vulnerable litigants and the interests of the administration of justice. It is not an obligation to be taken lightly.

2. If the Court finds migration litigation has no reasonable prospects of success, it must consider whether to make a personal costs order. Practitioners cannot be complacent simply because such orders have been rare in the past. They can and will be made in appropriate cases and may become more common in the future as the courts seek to stem the growing tide of unmeritorious migration litigation.

3. Unsuccessful litigants in the Federal Circuit Court can seek to recover their costs against a person who encouraged them to pursue unmeritorious migration litigation by way of an appeal to the Federal Court against the costs order. This provides an alternative forum to pursue relief in addition to more traditional avenues such as making a complaint to the Legal Services Commissioner. It could conceivably also provide an avenue to recover costs against non-lawyer migration agents or community members who encourage an applicant to pursue unmeritorious litigation.

4. If a lawyer or other person is alleged to have contravened s 486E, they should seek to exercise their right to be heard under s 486G. This may involve applying to be joined as a party to the proceedings and putting on evidence. It can be doubted whether an experienced migration practitioner would guarantee that an application has a 100% chance of success and provide the client with no legal advice, but in this case that evidence went unchallenged. Section 486H permits lawyers to produce documents in their defence even if they would otherwise be subject to legal professional privilege. Migration practitioners should keep careful records and give serious consideration to producing those records in their defence if a personal costs order under s 486F is being considered.

Is a Schedule 3 waiver a discretionary power or a state of satisfaction?

The Migration Act and Regulations contain a number of provisions which, broadly speaking, encourage non-citizens in Australia to apply for any further visas before the expiry of their existing substantive visas, and discourage non-citizens from remaining in Australia after the expiry of their substantive visas. In particular, many visas require applicants to satisfy what is known as Schedule 3 criteria, which limit the circumstances in which visas may be granted to applicants who do not hold a substantive visa.

In the context of an application for a partner visa, cl 820.211(2)(d)(ii) requires an applicant to satisfy particular Schedule 3 criteria “unless the Minister is satisfied that there are compelling reasons for not applying those criteria”.

This week, the Full Federal Court published an interesting decision in Singh v Minister for Home Affairs [2020] FCAFC 7 considering cl 820.211(2)(d)(ii). That decision is likely to be cited in future for the proposition that the rights of the child is not a mandatory relevant consideration for decision-makers in deciding whether to waive the Schedule 3 criteria. However, a significant plank of the Court’s reasoning in Singh turns on the view adopted by the Court that the waiver provision in cl 820.211(2)(d)(ii) is simply a criterion requiring the decision-maker to reach a state of satisfaction or non-satisfaction, not a discretionary power (see eg at [61]-[62], [73] per Derrington J, Logan and Reeves JJ agreeing).

Perhaps surprisingly, it seems the Court in Singh was not referred to Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, arguably the leading authority on the interpretation of cl 820.211(2)(d)(ii). The Full Federal Court in Waensila explicitly rejected the submission that the waiver provision in cl 820.211(2)(d)(ii) was merely a criterion requiring satisfaction or non-satisfaction; rather, the Court characterised it as a power to dispense with the application of the Schedule 3 criteria, with Robertson J in fact characterising it as a discretionary power (see eg [2] per Dowsett J, [11], [15]-[21] per Robertson J, [51]-[52] per Griffiths J).

The characterisation of the nature of the waiver provision in cl 820.211(2)(d)(ii) is important because, as the Court in Singh highlighted, different principles may apply depending on whether the Court is conducting judicial review of a state of mind or an exercise of power. Unfortunately, we now have two authorities which appear to conflict on that characterisation. How the tension between the two is to be resolved is likely to be a matter for future litigation.

Climate change, non-refoulement and the ICCPR: an Australian perspective

The UN Human Rights Committee recently published its decision in Teitiota v New Zealand, which appears to be the first case in which the Committee has held that the effects of climate change may trigger non-refoulement obligations under the International Covenant on Civil and Political Rights (at [9.11]):

The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.

Mr Teitiota’s case and his claim to be a climate change refugee attracted significant media attention as it wound its way through the appellate process in New Zealand. Mr Teitiota was ultimately unsuccessful in his appeals and, on the particular facts of his case, the UN Human Rights Committee agreed New Zealand did not violate his rights under the ICCPR. Nonetheless, it is interesting that both the New Zealand Supreme Court and subsequently the Committee expressly contemplated the possibility that, in an appropriate case, the effects of climate change may enliven a state party’s non-refoulement obligations.

This raises the question: could such an application succeed in Australia? There would certainly be significant challenges. Since the commencement of the complementary protection regime in 2012, Australia has incorporated its non-refoulement obligations under the ICCPR (as well as other treaties) into domestic law in a somewhat idiosyncratic fashion.

Generally speaking, s 36(2)(aa) of the Migration Act 1958 provides that a person is eligible for the grant of a protection visa if they can establish that there is a real risk that they will suffer “significant harm” as a necessary and foreseeable consequence of being removed from Australia to a receiving country. “Significant harm” is defined and relevantly includes arbitrary deprivation of life (s 36(2A)(a)), cruel or inhuman treatment or punishment (s 36(2A)(d)) and degrading treatment or punishment (s 36(2A)(e)), broadly corresponding to the rights protected by articles 6 and 7 of the ICCPR as considered by the Committee in Teitiota.

In the Australian context, arbitrary deprivation of life has been found to require conduct by a third party: EZC18 v Minister for Home Affairs [2019] FCA 2143 at [47]; SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [43]-[44]. It may be difficult for an applicant relying on harm arising from the effects of climate change to identify what conduct exposes them to a risk of being arbitrarily deprived of life. Indeed, this was a significant difficulty encountered by Mr Teitiota, given the Republic of Kiribati was in fact found to be taking adaptive measures to reduce the effects of climate change.

If relying on cruel, inhuman or degrading treatment or punishment, an applicant is likely to encounter an additional difficulty in that the definitions of those terms in the Australian legislation imports an intent element not found in the text of the ICCPR, and which has been interpreted by the Australian courts as requiring actual, subjective intent: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [26], [144]. There are obvious difficulties in establishing that the authorities of a country had an actual, subjective intention to cause pain or suffering through their conduct in relation to the effects of climate change.

Finally, regardless of the type of harm relied on, the Australian legislation provides that there is not a real risk of harm if the risk is one faced by the population of the country generally and not by the applicant personally (s 36(2B)(c)), which may impose an additional barrier. The intent of this exclusionary provision is somewhat opaque and was not explained in either the Explanatory Memorandum or the Second Reading Speech. The Federal Court has interpreted s 36(2B)(c) to require some discriminatory reason or differential treatment for complementary protection to be engaged (SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]-[15]), although an earlier decision of the Federal Circuit Court accepted that serious human rights violations that are so widespread or severe that almost anyone would potentially be affected by them may disclose a sufficiently real and personal risk: SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884 at [36], [49]. The effects of climate change may conceivably fall into the latter category, whereas it is more difficult to envisage how an element of differential treatment or discrimination could be established.

However, since s 36(2B)(c) relates to a risk faced by the population of the country generally, the Federal Court has found that a risk that a person is exposed to due to their residence in specific area of the country is a risk faced personally: BCX16 v Minister for Immigration and Border Protection [2019] FCA 465 at [37]-[38]. This could conceivably provide a pathway where the relevant risks caused by the effects of climate change affect only part of a country, although the applicant would then have to demonstrate why it would not be reasonable to relocate to a different area of the country (s 36(2B)(a)).

It remains to be seen whether such an application could succeed. Ultimately, the comments of the Committee in Teitiota v New Zealand raise interesting questions of international and domestic law which will no doubt be tested in future.

A plaintive cry from the High Court

Two recent decisions of the High Court caught my eye last week: Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCA 42 and AWI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCA 43.

There is nothing strictly legally interesting about these two judgments. They are single-judge decisions in the High Court’s original jurisdiction where plaintiffs have sought to challenge, on a discredited legal basis, determinations of departmental officers not to refer the plaintiffs’ requests to the Minister for personal consideration of his intervention powers because they were found not to meet the guidelines. The same or similar template grounds have been rejected by the High Court in more than a dozen cases, including those cited in Plaintiff S322/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 096 at [2].

However, what is interesting about the two recent judgments is that they have been published on AustLII now, despite having been handed down in June. Further, they have been assigned a medium-neutral HCA citation, rather than published as transcript and assigned a HCATrans citation as is more common for single-judge decisions of this type.

Perhaps the reason for this is Gageler J’s comment in AWI16 at [5]:

The systemic reasons why doomed applications of this sort continue to be filed by litigants in person lie beyond the province of this Court to investigate. It is important to record, however, that it is to be expected that persons having professional and ethical obligations in the provision of advice on migration law are not the source of the outdated templates that continue to be used.

The Court’s latest published judgments in this saga read as a plaintive cry in the face of being inundated with meritless applications pleading the same template grounds. Whether that cry will come to the attention of those drafting these applications, or whether they will listen, remains to be seen.