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.