There is specific power in section 486E Migration Act, to make personal costs orders (against advisers). As Rangiah J explained in SZTMH v Minister for Immigration and Border Protection (2015) 230 FCR 550, there is a balance. On one hand there is a clear intention to “discourage persons from encouraging others to make and continue unmeritorious applications in migration cases“, but on the other, “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“.

Relevantly 486E provides that:

(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 …..

In DAB16 v Minister for Immigration & Anor [2018] FCCA 3957, the problem for the solicitor started when the appeal court dismissed his client’s appeal and made a finding that there had been no reasonable prospects of success.

What I find interesting about this case are the other two elements, namely: (a) there was “encouragement”; and (b) “no proper consideration”.

In relation to encouragement: at [64]…. “The lawyer’s conduct in formulating the grounds, filing the notice of appeal and certifying the grounds as having reasonable prospects of success, whilst asserting an entitlement to charge fees for legal services for doing those things are together sufficient to support an inference that a legal practitioner has “encouraged” the client to commence and continue the litigation in the requisite sense.  Of course it is open to the lawyer to adduce evidence to rebut the inference that otherwise arises.  However, in the absence of advice and instructions, it is reasonable to infer that the carriage of a case is wholly entrusted to the legal practitioner on the client’s reasonable assumption that the litigation has some prospect of success.”

In addition the solicitor had unsuccessfully made an identical argument in a different case and described his pursuit of the matter as a “passion”. “In light of that belief, it may be fairly inferred that the weaknesses in [solicitor’s] arguments were not apparent to him and, as a consequence, it is very unlikely that the weaknesses were made known to the appellant in the form of correct and measured advice concerning the prospect of success of the litigation.” (at [67]).

In relation to “proper consideration”: at [78] Of particular concern is [solicitor’s] assumption that the primary judge (and this Court) could and should receive evidence that was not before the Authority so as to reach a different conclusion on a factual question to that reached by the Authority …. That aspect of the argument alone indicates that any consideration that was given to the merits by [solicitor] proceeded from a flawed understanding of fundamental legal principles. Any consideration founded on that flawed understanding could not be “proper consideration” for the purposes of s 486E of the Act.

[79] There may be a category of case in which a legal practitioner makes an error of judgment or proceeds from an understandable misapprehension of legal principle or in ignorance of recently decided authority or recently made amendments to the Act.  A finding that the lawyer has not given “proper consideration” in such cases may be more problematic.  I do not consider this case to fall within that category.

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The cases of Minister for Home Affairs v DUA16 and Minister for Home Affairs v CHK16 [2020] HCA 46 highlight an interesting application of legal unreasonableness to what appears to be case of fraud.

It was common ground that the applicants in these cases (and probably about 40 others) were the victims of fraud by their migration agent (who was also a lawyer). She didn’t tell her clients that she intended to use a pro-forma submission to the Immigration Assessment Authority (“the Authority”)(which reviews claims for asylum for maritime arrivals).

She apparently didn’t do a great job with the pro-forma because:

In the case of CHK16, the agent, acting fraudulently, provided submissions where the entirety of the personal circumstances concerned the wrong person. [the details for DUA16 were partly correct]. The Authority was unaware of the agent’s fraud. The Authority noticed that the submissions concerned the wrong person yet did not seek to obtain the correct submissions and any new information about the correct applicant. Instead, it had regard to the submissions concerning generic information and legal issues but disregarded the information concerning the personal circumstances of the wrong person.

So what are the legal consequences of this?

1. firstly, as a ground of judicial review, fraud must affect a particular duty, function, or power of the Authority. It is not sufficient to assert that fraud might be said to affect the process of decision-making in some abstract sense. Although the Authority requested (pursuant to a Practice Direction) submissions and received false ones, the Court said that this did not affect the Authority’s power to make the request. No duty, function or power was affected in any adverse way; and
2. However, all was not lost for the Appellants because the Authority was aware that the information it received was in relation to a different person. In those circumstances it was held to be legally unreasonable not to request the correct information.

This is interesting because the general proposition is that “there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law.” However, all powers have to be exercised “legally reasonably” and  “the failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.” A very interesting balance between the two, but the circumstances of these applicants was said to be “extreme’.

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