APPLICANT’S SOLICITOR BEING ORDERED TO PAY FOR COST FOR INSTITUTING AN APPEAL THAT HAS NO REASONABLE PROSPECT OF SUCCESS

DAB16 v Minister for Home Affairs (No 2) [2021] FCA 120 (23 February 2021)

This involves a migration litigation where the appellant’s solicitor is being ordered by the court to pay the costs for initiating an appeal that has no reasonable prospect of success. 

Facts:

The appellant is a citizen of Pakistan, a non-citizen for the purposes of the Migration Act.  On 2 September 2015, the appellant applied for a protection visa. In support of his application, the appellant claimed (relevantly) that he satisfied the criteria in S.36(2)(a) and S.36(2)(aa) of the Act (respectively, the Refugee Criterion and the Complementary Protection Criterion).

The Refugee Criterion will be fulfilled if the Minister is satisfied that the non-citizen is a refugee. The Complementary Protection Criterion will be fulfilled if the Minister has substantial grounds for believing that, as a consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that he or she would suffer significant harm.

A delegate of the then-named Minister for Immigration and Border Protection refused to grant the appellant a visa on the basis that the appellant could relocate to Lahore in the province of Punjab.

On 13 October 2016, the appellant commenced an application for judicial review of the Authority’s decision in the Federal Circuit Court of Australia. He was legally represented in those proceedings, as he was on this appeal, in each case by the same solicitor, Mr Smart. At the hearing, the appellant sought to introduce evidence that had not been put before the Authority so as to make good that ground.  The evidence was intended to show that the country information contained in the Department of Foreign Affairs and Trade (DFAT) Report was factually incorrect.

The appeal was found to have “no reasonable prospects of success” within the meaning of that phrase in Pt 8B of the Act.

Issue: Should an order of costs be made for instituting an appeal that is said to have “no reasonable prospects of success”?

Law:

• Migration Act 1958 S.486E(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.
• Migration Act 1958 S.486F(1)- a person acts in contravention of section 486, the court may order: (a) 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

Analysis:

Mr Smart devoted a substantial part of the costs hearing repeating the submissions that had been made at the hearing of the appeal. The submissions were to the effect that the primary judge and this Court on the appeal could and should receive evidence that was not put before the Authority so as to demonstrate that the information contained in the DFAT Report was factually incorrect.

Mr Smart made no submissions concerning the limits of a court’s powers on judicial review as they relate to findings of fact.  Mr Smart’s submissions assumed (incorrectly) that proof that the DFAT Report was factually incorrect would and could support a finding that the Authority had committed jurisdictional error by preferring the evidence contained in it to the evidence of the appellant.  Mr Smart persisted with the submission that the grounds agitated before the primary judge were not an attempt to engage in merits review of a factual finding.

In seeking to rely on new evidence that was not before the Authority, Mr Smart made no reference to the circumstance that the Authority itself is limited in its own powers to receive new information.

Even if the Act contemplated that the Court should reconsider its earlier finding that the appeal had no prospect of success (which is doubtful), in this case there is no basis to depart from the finding, nor to depart from any of the reasoning upon which the finding was based.

Therefore, the appeal had no reasonable prospect of success which justifies the order of costs against the appellant.

Conclusion: The Court orders that Mr Haidari Smart is to pay the Minister’s costs of the appeal, fixed in the sum of $7,000.00.

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