FEDERAL COURT OF AUSTRALIA Sithloo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 34 MAHENDRA ANAND SITHLOO, DHOOLENDARI SITHLOO & PRISARNIA SITHLOO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 428 of 2003 MANSFIELD J 30 JANUARY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 428 OF 2003 BETWEEN: MAHENDRA ANAND SITHLOO, DHOOLENDARI SITHLOO & PRISARNIA SITHLOO APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 30 JANUARY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The solicitor for the applicants Mark Wallis Clisby pay to the respondent costs of the hearing on 18 December 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 428 OF 2003 BETWEEN: MAHENDRA ANAND SITHLOO, DHOOLENDARI SITHLOO & PRISARNIA SITHLOO APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 30 JANUARY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants are South African citizens. They comprise a husband and wife and their two children. They applied on 17 February 1998 for a Change in Circumstance (Residence) (Class AG) Subclass 806 (Family) visa (the visa). On 26 March 1998 a delegate of the respondent refused that visa. They sought review of the delegate's decision by the Immigration Review Tribunal (the Tribunal). On 14 April 1999, the Tribunal affirmed the decision of the delegate of the respondent. 2 A considerable time later, on 10 April 2003, the applicants sought prerogative orders from the Court to quash the decision of the Tribunal and to direct the Tribunal to hear and determine their application for review according to law. On 24 October 2003 the respondent by motion applied under O 20 r 2(1)(a) of the Federal Court Rules to summarily dismiss the application on the basis that there was no reasonable prospect of it succeeding. On 18 December, on that motion, I ordered that the application of the applicants be dismissed. I further ordered that the applicants pay to the respondent costs of the application. 3 At that time, the respondent also sought an order that her costs be paid by the solicitor for the applicants. There have been subsequent submissions made on that issue. This judgment contains my reasons for the decision made on 18 December 2003, and in respect of the claim by the respondent that the applicants' solicitor should also be liable for costs of the application. 4 The male applicant entered Australia on a Visitor visa (a substantive visa) on 15 October 1996. It was valid to 15 January 1997. The female applicant, and the two children, entered Australia on 12 September 1996 also on a Visitor visa, in their case valid to 12 December 1996. After 15 January 1997 and 12 December 1996 respectively the applicants ceased to hold a substantive visa, as that term is defined in s 5 of the Migration Act 1958 (Cth) (the Act). The male applicant in support of his application before the Tribunal asserted that he had no family in South Africa and that his mother and sister live in Australia and are Australian citizens. The Tribunal noted that the male applicant's family are settled in Australia, and that his mother is now aged, and that he did not wish the inconvenience of moving his family back to South Africa. 5 To be eligible for the grant of the visa, the delegate of the respondent, and on review the Tribunal, had to be satisfied that the criteria prescribed for the visa in the Act or the Migration Regulations have been satisfied. If the decision-maker is not satisfied that the criteria so prescribed have been satisfied, s 65 directs the decision-maker to refuse to grant the visa. 6 Relevantly for present purposes, cl 806.21 of Sch 2 to the Migration Regulations 1994 (Cth) prescribes criteria for the grant of the visa to be satisfied at the time of the application. Clause 806.212(a) requires the applicant to satisfy Sch 3 criterion 3002. Schedule 3 criterion 3002 provides: 'The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2).' Clause 3001(2) provides: 'For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is: (a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa – 1 September 1994; or (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa – the day when the applicant last became an illegal entrant; or (c) if the applicant: (i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (ii) entered Australia unlawfully on or after 1 September 1994; whichever is the later of (iii) the last day when the applicant held a substantive or criminal justice visa; or (iv) the day when the applicant last entered Australia unlawfully.' 7 The Tribunal's reasons were straightforward. After referring to the facts, it noted a submission from the applicants' then solicitors (they are not the same as the present solicitor for the applicants) that cl 3002 is inconsistent with other provisions of the Migration Regulations and that it would be harsh if cl 3002 applied so as to lead to the rejection of the application for the visa. However, under cl 3001(2)(c) the relevant day as defined needed to be determined. It is the date at which the applicants last held a substantive visa. In the case of the male applicant that was on 15 January 1997, and in respect of the other applicants 12 December 1996. As the application for the visa was made on 17 February 1998, it was not made within 12 months after the relevant date, as it was not made within 12 months after the applicants ceased to hold a substantive visa: seecl 301(2)(c)(iii). Consequently, the Tribunal was not satisfied that the criterion specified in cl 806.212(a) was met. Section 65 of the Act then required it to affirm the decision of the delegate of the respondent refusing to grant to the applicants the visa which they sought. 8 The respondent's motion for summary judgment was based upon the contention that the Tribunal's approach was unexceptionable, and that there was no arguable case to the contrary. 9 It is clear that summary judgment should be granted only in the clearest of cases. See e.g. Dey v Victorian Railways Commissioners A(1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Salemi v MacKellar (No 1) (1976) 137 CLR 388, Webster v Lampard (1993) 117 CLR 598. 10 In the proposed amended application, counsel for the applicants asserts that the Tribunal committed jurisdictional error 'notwithstanding cl 3002' because it failed to take into account a relevant consideration. The relevant consideration is said to be that the male applicant is of Indian descent, and for cultural reasons is therefore responsible for the care of his parents. The Tribunal is said to have failed to consider those family circumstances, including whether the male applicant's mother may have sponsored that applicant on other grounds. 11 There is no material before the Court which indicates that the male applicant is of Indian descent, or that he claimed to be responsible for the care of his aged mother. The Tribunal has recorded that the male applicant referred to his family circumstances and asserted simply that he did not wish the inconvenience of moving his family. No argument was advanced that cl 3002 is invalid, or must be read down in some way by virtue of other provisions of the Migration Regulations. No argument was advanced that the Tribunal had any discretion to waive the requirement of cl 3002. It is plain on its terms. The Tribunal had no option, as it recognised, but to conclude that the criterion specified by cl 806.212(a) was not satisfied. Consequently, s 65 directed it to refuse the application for the visa and to affirm the decision of the delegate of the respondent. 12 Moreover, at the hearing, counsel for the applicant did not contend that the criterion specified in cl 806.212(a) did not apply. On the contrary, it was assumed to have applied. The claim that the Tribunal should have considered a 'relevant consideration', namely whether the application for the visa might have succeeded on 'remaining relative' grounds was not shown to have been raised before the Tribunal. Clause 806.213 has the additional criterion that the applicant be an aged dependent relative, an orphan relative, a remaining relative, or a special need relative of another person who (relevantly) is a settled Australian citizen. It may be assumed that the Tribunal considered and was satisfied that the male applicant met that criterion. The fact that it did not refer to it was simply because it was unnecessary to do so. Each of the criteria specified in cl 806.21 must be satisfied at the time of the application. One of those criteria was not satisfied. 13 Accordingly, I was satisfied that there was no real question to be tried on the application. I dismissed it. 14 In Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 18 I have discussed the circumstances in which it is appropriate to make an order that a solicitor for a party should be ordered to pay the costs or some part of the costs of the proceedings: see [2-17]. I will not repeat that discussion. 15 In this instance proceedings were instituted a considerable time, some four years, after the decision of the Tribunal complained of. There was ample time to investigate the circumstances of the application and whether there were factual or legal grounds upon which it might be pursued. Nothing is put forward to suggest any particular circumstance provoked an urgent application. The application when instituted contained grounds which appear to reflect in part grounds available for judicial review under s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth). The proposed amended application changed those grounds to some extent. In substance it simply added the particulars to which I have referred in [10] above. For the reasons which I have given, those particulars do not provide an arguable case. There is no reason, given the elapse of time, why the application could not have been fully investigated and accurately formulated at the time it was made. 16 In this instance, I am prepared to infer, on the material before me, that the solicitor for the applicant seriously failed to give reasonable attention to the relevant law and facts prior to receiving instructions to have instituted the proceedings. The explanation for having failed to do so proffered in the outline of submissions, namely 'because of time limits imposed under the Migration Regulations' because the applicants then faced detention and deportation is not made out in fact, and does not lie readily with the elapse of time between the Tribunal's decision and the institution of the proceedings. Such a failure in my view in the circumstances can be concluded to amount to a serious dereliction of duty in this instance. 17 On the assumption that the application was then expressed in terms of the proposed amended application, there is also no reason why the solicitor for the applicants should not before the institution of the application, have informed the applicants that there was no prospect of the application as so expressed succeeding. I do not know if such advice was later given. Client legal privilege has not been waived. I accept, as counsel for the respondent accepted, that the applicants instructed the application to be instituted, and in the light of the respondent's motion to be pursued insistently notwithstanding whatever advice the solicitor for the applicants might have as to their prospects of success. 18 The issue then is whether the solicitor for the applicants should be liable to any order for costs for having instituted and maintained the proceedings, on the assumption that at some time after the proceedings he informed or advised the applicants that they had no prospect of success, but that he was nevertheless instructed to pursue the application. I make that assumption because, in the absence of a waiver of client legal privilege, the communications between the applicants and the solicitor for the applicants are simply not known. It may be more appropriate to say that I am not satisfied that, following the motion, the solicitor for the applicants failed to seek full instructions and to give proper advice to them as to their prospects of success. I simply do not know. 19 The respondent accepts that the applicants gave instructions to institute, and to maintain, the application. I am unable to conclude that the instructions to maintain the application in the face of the respondent's motion were a consequence of a failure on the part of the solicitor for the applicants to have given proper advice. The instructions may have been given despite proper advice. On the balance of probabilities, I am not therefore of the view that, had the applicants been given proper advice before the institution of the application, they would have taken that advice. In other words, the course of events leaves open the real possibility that, had the solicitor for the respondents fulfilled his duty by proper investigation and advice before the institution of the application, the application would still have been instituted and maintained as it was. To conclude otherwise would be to succumb to speculation. I regard it as impermissible to take that step on the material before me. 20 Consequently, but for one matter, the respondent is not shown to have incurred costs which would not have been incurred if the solicitor for the applicants had properly investigated the facts and given advice on the basis of them before the application was instituted. 21 The particular matter arises because the proposed further amended application asserted the applicants' cultural background and the significance of the applicants' cultural background as a reason for the application. It was not supported by any evidence. The solicitor for the applicant, as counsel, nevertheless put the submission based upon the unsupported assertions in the proposed amended application. In the absence of the necessary factual foundation, that was a waste of the Court's time. No other contention was advanced on the hearing. As noted, the contention also did not address the foundation for the Tribunal's decision. In those circumstances, I consider the solicitor for the applicant was in breach of his duty to the Court in respect of what was put at the hearing. He should be ordered to pay the respondent's costs of the hearing. 22 I order that the solicitor for the applicants pay to the respondent costs of the hearing on 18 December 2003. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 29 January 2004 Counsel for the Applicant: M W Clisby Solicitor for the Applicant: M W Clisby Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 December 2003 Date of Judgment: 30 January 2004